Legal Theory Blog

All the theory that fits!


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

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Friday, September 30, 2005
Friday Calendar
    University of Georgia Law: Sean J. Griffith (University of Connecticut) – Unleashing a Gatekeeper.
    Vanderbilt Law: Andrew Martin, Washington University in St. Louis Political Science, "The Median Justice on the U.S. Supreme Court, and Some Thoughts on the Roberts Court"
    Villanova Law: Teemu Ruskola, American University, Washington College of Law, "Canton Is Not Boston: The Invention of American Imperial Sovereignty in the Nineteenth Century"
    Yale Law, Economics, and Organizations: Professor Lawrence Katz, Harvard, Economics with Professor Jeffrey Kling, Princeton, Economics, Experimental Analysis of Neighborhood Effects.

Call for Proposals: MPSA 2006
    CALL FOR PROPOSALS MPSA 64th Annual National Conference Thursday, April 20th through Sunday, April 23rd, 2006 Chicago Palmer House Hilton Hotel PROPOSAL DEADLINE: October 10th, 2005 Submit Today! SUBMIT A PROPOSAL AT: ABOUT THE MPSA The MPSA is a national association of researchers with an interest in politics and policy. The MPSA was founded in 1939 and publishes one of the top journals in the discipline, the American Journal of Political Science (, as well as hosting a national conference with over 3,000 presenters at over 700 different sessions. ABOUT THE CONFERENCE From April 20th -23rd, 2006, the MPSA will hold its 64th Annual National Conference and we are soliciting proposals to present at the conference. Though one of the largest conferences in the discipline with over 3,000 presenters and 700 sessions, the entire conference fits in one hotel—the historic Palmer House Hilton in downtown Chicago. The Palmer House is conveniently located in the “Loop,” about a block from the Art Institute of Chicago (a must see for fans of Impressionist paintings) and a couple blocks from Grant Park and Lake Michigan. It is the oldest continuously operating hotel in North America. NEW SECTIONS FOR THE CONFERENCE The program committee for the conference includes about four dozen folks, and each of them deals with a subfield (or a portion of a subfield). We have several NEW sections, including ones on Canadian Politics, International Cooperation and Organization, Electoral Campaigns, and Economic Policy. This is in addition to the full range of sections in the field of political science. For a full listing, please see the conference website. HOW TO SUBMIT A PROPOSAL The deadline to submit a proposal is October 10th, 2005, and you can submit a proposal on-line at If you have problems working with the website, please be sure to contact us immediately ( or 812-856-0245) and we can help you through the process. Common problems are: security settings too high on your computer or you are using an old version of the software for your browser. An easy “fix” is to try another computer if you have problems (or you can update your browser). DISCUSSANTS AND CHAIRS NEEDED FOR PANELS We are always in need of experienced scholars who are willing to serve as discussants and chairs, so I would strongly encourage you to complete the short form offering to serve in that capacity. Please be as specific as you can when you list your areas of expertise so the section heads will be able to know what panels might match your background. ABOUT THE AMERICAN JOURNAL OF POLITICAL SCIENCE The American Journal of Political Science (AJPS) publishes research in all major areas of political science, including American politics, public policy, international relations, comparative politics, political methodology, and political theory. Founded in 1956, the AJPS includes articles of general interest, essays, and a workshop section on new developments in research methodology. The journal is provided to all members as a benefit of their membership. The editors of the journal are Kim Quaile Hill and Jan E. Leighley from Texas A&M University. If you wish to look at the list of forthcoming articles, look over submission guidelines or submit a manuscript for review, please go to

Call for Participation: Law & Society 2006
    CALL FOR PARTICIPATION Law and Society Assocation Annual Meeting Due Date: January 6, 2006 The 2006 annual meeting of the Law and Society Association will take place at the Marriott Waterfront Hotel in Baltimore, Maryland, USA, July 6 - 9. Theme: Law’s End(s)? In the spirit of the Law and Society Association’s long tradition of research into unsettled and unsettling issues, the 2006 meeting’s theme poses many profound questions regarding challenges facing the rule of law early in the twenty-first century. We highlight in particular the following observations and puzzles. First, as social life around the globe becomes ever more complex, multi-layered, and subject to multiple sources of authoritative ordering, the boundaries among and between different legal or extra-legal forms of governance have become more contested, volatile, and fragile. How are different forms of legal authority established, enforced, contested, and renegotiated? Where does the authority of one legal system or form of governance end and another prevail? Do inherited conceptions of “legal pluralism” suffice to make sense of the negotiated boundaries among legal orders? Second, the global spread of Western legal norms, and especially those associated with the United States, seems to highlight law’s growing significance in contemporary life at the same time that the proliferation of profoundly different legal orders undermines any common view about the core elements of law itself. Have we come to the end of any coherent singular understanding about what the “rule of law” requires? Do new forms of capitalism, governance, etc. demand new models of law that we do not yet imagine? Third, in many societies we witness political backlashes and retrenchment against the constraints of law’s rule. Overt attacks on courts, lawyers, legal processes, rights, and rules as well as more subtle departures from principles of law are evident around the world. At the same time, other elements or domains of law – especially the punitive and market-based terms of law – have been advanced with new vigor. How can we make sense of the simultaneous undermining of some forms or aspects of law and the strengthening of others? What is the role of neo-liberalism or resurgent authoritarianism in these processes? How do these changes reflect and express unequal power relations? Fourth, the preceding questions about the conceptual and political constraints of law suggest yet other more general puzzles about the limitations or endpoints of law’s instrumental capacity to govern. What do legal forms, processes, and practices do well, and what to they accomplish poorly or less well than other forms of governance? What types of control or coordination are most and least effectively advanced through law? Finally, these previous questions suggest yet another line of inquiry about laws end(s): What are law’s purposes? What normative ends does it serve? Whose ends? To what extent is law merely a means, a set of techniques that serve ends rather than define ends? How are commitments to (or against) law related to organizing logics of capitalism, democracy, authoritarianism, religion, or various versions of justice? By what standards should we assess the workings and impacts of law? Where do or should we stand in scrutinizing how, and for whom, law does or does not matter? As with every Annual Meeting, panels need not be centered on the conference theme. As usual, submissions on any law and society topic are welcome.

Conference Announcement: The Future of the Supreme Court
    2005 Minnesota Law Review LINDQUIST & VENNUM SYMPOSIUM The Future of the Supreme Court: Institutional Reform and Beyond October 21, 2005 8:00 a.m. to 4:15 p.m. University of Minnesota Law School Walter F. Mondale Hall Room 25 REGISTER NOW! To register, visit the Minnesota Law Review web site ( Schedule:
      8:00-8:30 Registration 8:30-8:45 Welcome (Dean Alex Johnson) 8:45-9:15 Introductory presentation Adrian Vermeule: "The Obstacles to Supreme Court Reform" 9:15-10:40 Panel: The Role of Politics and Precedent in Limiting the Court's Judicial Power Michael Gerhardt: "Super Precedent" Daniel Farber: "The Rule of Law and the Law of Precedent" Randy Barnett: "Precedent: The New Judicial Supremacy" 10:40-10:50 Break 10:50-12:15 Panel: Decision Making at the Court: A Convergence of People, Ideas, and Shifting Values Thomas Lee: "The Second-Image Reversed: The Influence of Geopolitics on Supreme Court Decisions in U.S. Foreign Relations Law" Angela Onwuachi-Willig and Guy-Uriel E. Charles: "Representative Government, Representative Court?" Mark Tushnet: "Can Knowing Less Be Better Than Knowing More?" 12:15-1:15 Lunch 1:15-2:40 Panel: Political Controversy and the "Suprapolitical" Third Branch Stephen Smith: "The Supreme Court and the Politics of Death" Martin Redish: "The Supreme Court, the Rules Enabling Act, and the Politicization of the Federal Rules: Constitutional and Statutory Implications" Neal Devins: "Should the Supreme Court Fear Congress?" 2:40-2:50 Break 2:50-4:15 Panel: The Past, Present, and Future of the Supreme Court's Workload Kenneth Starr: "The Supreme Court and its Shrinking Docket: The Ghost of William Howard Taft" Steven Calabresi: "A Proposal to Reinstitute Circuit Riding" David Stras: "Supreme Court Justices & the Incentives Approach to Retirement" 4:15 Adjourn

More on the Roberts Vote Check out Royce Carroll, Jeff Lewis, Keith Poole, and Howard Rosenthal's Predicting The Senate Vote on John Roberts, detailing their predictions of the Roberts vote (69-31) and discussing the variance with the actual 78-22 vote.

Thursday, September 29, 2005
    Updated at 3:30 p.m.
    John Roberts Was Approved by the Senate, 78-22 Here is a report from the L.A. Times:
      In the end, 22 of the chamber's 44 Democrats, voted in favor of Roberts, saying the fight to preserve the current balance of liberal and conservatives on the Supreme Court would be postponed until the next nomination, to fill the seat being vacated by Justice Sandra Day O'Connor, the court's swing vote on most controversial issues.
    And here are stories in the NY Times and Washington Post.
    Why Did 22 Democrats Vote for Roberts There are many possible reasons, including:
    • A Roberts Court is actuall more liberal than a Rehnquist Court. Of course, we don't know this for sure--yet. But all the indications are that Roberts is slightly to the left of William Rehnquist. For example, Jeffrey Segal (the political scientist at SUNY Stony Brook) ranks Roberts as to the left of Rehnquist & approximately similar to Harry Blackmun at the time he was appointed to the Supreme Court). Follow this link for Segal's brief report of his findings.

    • Roberts doesn't move the Court to the right. Even if Roberts were to the right of Rehnquist (unlikely), he would not move the balance of power on the Court to the right, because he wouldn't be the swing vote on very many issues.

    • A vote against Roberts may have negative political consequences. Some Democratic Senators who voted for Roberts may believe that swing voters in their home state would disapprove of a vote against Roberts.

    • Belief in merit. Some Democratic Senators may actually believe that Roberts is highly qualified and that he is genuinely committed to the the rule of law.

    • A norm of deference. Some Democratic Senators may believe that the "norms" of the confirmation process entitle the President to a "yes" vote unless the nominee is unqualified of "outside the mainstream."
    • Some Democrats may believe that a vote for Roberts gives them cover for a vote against the next nominee--because it makes them look more reasonable and/or moderate.
    Why Did 22 Democrats Vote Against Roberts? Again, there are several possibilities:
    • Some Democrats may believe that Roberts is a "stealth" Thomas and that his appointment could shift the balance on the Court to the rights--at some point in the future after Stevens and others have been replaced.

    • Some Democrats may view this as a "cheap vote." Although they actually want Roberts on the Court--because he moves the Court to the left, they can vote against Roberts without defeating him. This "cheap vote" then sends a signal to the Democratic base and to special interest groups that the Senator can be relied upon to vote against a similar nominee for the O'Connor vacancy. And sending this signal may result in support from the Democratic base--in the form of primary votes and donations from various groups and constituencies.

    • Some Democrats may believe they are sending a signal to the President. These Democrats may believe that a vote against Roberts makes it more likely that the next nominee will be more moderate. In other words, I am voting against Roberts to signnal that I will support a filibuster against a Robert-like nominee to replace O'Connor.

    • Some Democrats may want to "punish" the President and Senate Republicans. They may see a "no" vote as a symbolic expression of disapproval.
    Which of These Explanations Is Correct? Well that's a tricky question. My money is on the idea that Democrats had nothing to lose and something to gain by confirming Roberts. So all votes by Democrats were cheap votes--once they had decided not to attempt a filibuster. Cheap votes can be cast for cheap reasons--for their symbolic or signalling effects.
David Law & I have a paper on the politics of judicial selection, which you can download here.

Thursday Calendar

Barros on Home as a Legal Concept Benjamin Barros (Widener Law School) has posted Home as a Legal Concept on SSRN. Here is the abstract:
    This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal issues involving the home. The article concludes that homes are different from other types of property and give rise to legal interests deserving of special legal protection, but that these interests can be outweighed by competing interests in particular legal contexts. The result is that in many contexts special legal treatment of homes is justified. In other contexts, for example residential rent control, the strength of competing interests means that the law overprotects the home. In still other contexts, for example eminent domain law as embodied by the Supreme Court's recent decision in Kelo v. New London, the law tends to underprotect the home.

Call for Papers: Ethics and Demandingness
    "First Call For Papers: Ethics and Demandingness, Dundee, July 14-16 2006 The AHRC Scottish Ethics Network is delighted to announce an international conference on the problem of demandingness in ethics. This will take place at the University of Dundee, July 14-16 2006. Plenary speakers confirmed so far include: Liz Ashford (University of St Andrews); Garrett Cullity (University of Adelaide); Brad Hooker (University of Reading); Tim Mulgan (University of St Andrews); David Sobel (Bowling Green State University). If you would like to submit a paper on the theme of demandingness, please contact the conference organiser, Dr Timothy Chappell (, as soon as possible."

Blank on Fiction in Corporate Reogranization Josh Blank has posted Confronting Continuity: A Tradition of Fiction in Corporate Reorganizations (forthcoming Columbia Business Law Review) on SSRN. Here is the abstract:
    The venerable “continuity of interest” doctrine has determined the tax treatment of corporate mergers for over seventy years. Under the doctrine, a corporate merger may qualify as a tax-free reorganization if an acquiror corporation pays shareholders of the target corporation aggregate consideration that consists of at least a minimum amount of acquiror corporation stock. The continuity of interest doctrine has endured an abundance of criticism on both policy and legal grounds. Over the last ten years, the administrative agencies of the federal government have steadily chipped away at the continuity of interest requirement in an attempt to make it workable in modern business transactions. Such an approach to remedying the doctrine, however, ignores a fundamental question. Congress, and the tax community at large, should confront the end that the continuity of interest doctrine currently serves, and question whether this end justifies the hardship that the doctrine causes. This article argues that the end that the continuity of interest requirement is intended to achieve – an aggregate group of former target corporation shareholders maintaining a “continuity of interest” in the acquiror corporation following a merger – is fiction. Today corporate mergers may technically satisfy the continuity of interest requirement even though target corporation shareholders ultimately may receive or retain little or even no meaningful proprietary interest in the acquiror corporation. By highlighting the fictional premise upon which the continuity of interest doctrine has come to rest, this article offers a new and different justification for the repeal of the doctrine.

Judicial Activism at Law & Society Weblog Check out Prolegomena to a Systems-Theoretical Theory of Judicial-Activism Claims over at Law & Society Weblog. Here's a taste:
    The serious core of my posts is this: If a charge of judicial activism is made, we should first demand to hear how the court got it wrong (and no political arguments allowed, only legal arguments). If little or nothing is forthcoming on that end, it will take a very strong additional argument to show why the court should have gotten it wrong, to support the claim of judicial activism.

Wednesday, September 28, 2005
Wednesday Calendar
    Loyola Law School, Los Angeles: Richard Sander, Professor of Law, UCLA School of Law, "Affirmative Action in Law Schools: The Debate on the Mismatch Theory."
    NYU Legal History: Chaim Saiman, Golieb Fellow, “Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law”
    Ohio State Law: Sarah R. Cole, Mediation Confidentiality: A Promise Unfulfilled?
    University of Alabama Law: Sheila Foster, Fordham University, The City as an Ecological Space.

Durchslag on the Supreme Court & the Federalist Papers Melvyn R. Durchslag (Case Western Reserve University - School of Law) has posted The Supreme Court and the Federalist Papers: Is There Less Here than Meets the Eye? (William and mary Bill of Rights Journal, Vol. 14, No. 1, Forthcoming) on SSRN. Here is the abstract:
    The Federalist Papers are perhaps the most revered and useful insights into the minds of those who advocated the drastic change from the Articles of Confederation that is the United States Constitution. Certainly the Federalist Papers are cited as evidence of "framers' intent" by the courts with greater frequency than any other single historical source. And recent scholarship has demonstrated that citations to The Federalist Papers have increased significantly in the past decade or so. The qualitative question, however, is how important have The Federalist Papers been to the Court's decisions. As the title to the paper suggests, the author concludes that one can not measure the doctrinal influence of The Federalist Papers by the frequency of their citation. Indeed, in the author's judgment, The Federalist Papers played a decisive role in only a handful of cases decided by the Supreme Court since 1787. In the vast majority of cases in which The Federalist Papers were cited, they carried little or no substantive weight, leaving one to wonder whether a Justice refers to The Federalist Papers for reasons other than fleshing out "original understanding".

Bainbridge Replies to Bebchuck on Shareholder Power Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted Director Primacy and Shareholder Disempowerment (Harvard Law Review, Vol. 199, 2006) on SSRN. Here is the abstract:
    This essay is a response to Lucian Bebchuk's recent article The Case for Increasing Shareholder Power, 118 Harvard Law Review 833 (2005). In that article, Bebchuk put forward a set of proposals designed to allow "shareholders to initiate and vote to adopt changes in the company's basic corporate governance arrangements." In response, I make three principal claims. First, if shareholder empowerment were as value-enhancing as Bebchuk claims, we should observe entrepreneurs taking a company public offering such rights either through appropriate provisions in the firm’s organic documents or by lobbying state legislatures to provide such rights off the rack in the corporation code. Since we observe neither, we may reasonably conclude investors do not value these rights. Second, invoking my director primacy model of corporate governance, I present a first principles alternative to Bebchuk's account of the place of shareholder voting in corporate governance. Specifically, I argue that the present regime of limited shareholder voting rights is the majoritarian default and therefore should be preserved as the statutory off-the-rack rule. Finally, I suggest a number of reasons to be skeptical of Bebchuk's claim that shareholders would make effective use of his proposed regime. In particular, I argue that even institutional investors have strong incentives to remain passive.

Clark on Sarbox Robert Charles Clark (Harvard University - Harvard Law School) has posted Corporate Governance Changes in the Wake of the Sarbanes-Oxley Act: A Morality Tale for Policymakers Too on SSRN. Here is the abstract:
    This paper seeks to draw a lesson for designing major reforms of corporate governance in the future. It recalls the key events leading to the recent seismic shift in corporate governance policies applicable to American public corporations, and identifies the four sources of policy changes - the Sarbanes-Oxley Act, new listing requirements, governance rating agencies, and tougher judicial opinions (notably in Delaware) about perennial corporate governance issues. It presents a synthetic overview of the numerous reforms, which at the most general level aim to fix the audit process, increase board independence, and improve disclosure and transparency. It pauses to identify the vast territory of unchanged corporate governance rules that are still left to state law, and then examines some of the empirical studies that bear on whether the governance reforms can be confidently predicted to have strong positive results for investors. The exercise suggests an irony: Studies about the impacts of the most costly reforms, those concerning audit practices and board independence, are fairly inconclusive or negative, while studies about proposals for shareholder empowerment and reduction of managerial entrenchment indicate that changes in these areas - which in general are only atmospherically supported by the SOX-related changes -could have significant positive impacts. Admittedly, the general evidence for mandatory disclosure does suggest that the new round of enhanced disclosures, which are only moderately costly, will have good effects. The concluding section presents and explains a new approach for the next crisis-generated reform movement. It is based on the notion that bandwagons are unavoidable, but their motivating impact can be leveraged and their bad effects alleviated by good statutory design. In particular, legal reforms in the area of corporate governance should have bite but should also be explicitly structured to authorize and mandate (1) serious empirical study of the effects of particular regulatory changes (or existing rules), (2) periodic reassessment of regulations in light of such evidence (while also considering experience and analytical arguments, of course), and (3) explicit decisions to reaffirm or alter regulations in light of these reassessments.

Fairfield on Virtual Property Joshua Fairfield (Indiana University School of Law-Bloomington) has posted Virtual Property (Boston University Law Review, Vol. 85, 2005) on SSRN. Here is the abstract:
    This article explores three new concepts in property law. First, the article defines an emerging property form - virtual property - which is not intellectual property, but that more efficiently governs rivalrous, persistent, and interconnected online resources. Second, the article demonstrates that the threat to high-value uses of internet resources is not the traditional tragedy of the commons that results in overuse. Rather, the naturally layered nature of the internet leads to overlapping rights of exclusion that cause underuse of internet resources: a tragedy of the anticommons. And finally, the article shows that the common law of property can act to limit the costs of this internet anticommons.

Rachlinski on Bottom-Up Lawmaking Jeffrey J. Rachlinski (Cornell Law School) has posted Bottom-Up Versus Top-Down Lawmaking (University of Chicago Law Review, Vol. 73, Summer 2006) on SSRN. Here is the abstract:
    Democratic legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (from the bottom up); or by declaring general principles through a centralized authority that are to be applied in individual cases (from the top down). These two processes are, respectively, adjudication and legislation. Each process presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different aspects of a legal problem. The single-case perspective of adjudication can seem cognitively inferior to the broad perspectives that legislatures can incorporate into their decision-making processes, but adjudication also has its advantages. The adjudicative approach, however, has advantages that are less obvious. Notably, the adjudicative process is more likely to facilitate that adoption of simple, elegant rules for decision making. The assessment of which approach is superior is therefore indeterminate. Each has its strengths and weaknesses that make it more or less appropriate for different contexts.

Tuesday, September 27, 2005
Winkler on Agency Costs & Campaign Finance Adam Winkler (University of California, Los Angeles - School of Law) has posted Other People's Money: Corporations, Agency Costs, and Campaign Finance Law (Georgetown Law Journal, Vol. 92, pp. 871-940, 2004) on SSRN. Here is the abstract:
    This article offers a political history of the first major federal campaign finance law, the 1907 ban on corporate contributions to candidates. This law has been widely misunderstood by courts and scholars who contend that the corporate contribution ban was motivated primarily by progressive era fears of the excessive power and influence of big business. Challenging this prevailing wisdom, this article shows that concerns about excessive corporate power, while present, were matched if not exceed by a different conception of corporate political corruption. At the turn of the century, corporate political contributions were widely understood to be corrupt because they amounted to a misuse of other people's money: company executives were opportunistically misappropriating the owners' money to purchase legislation designed to immunize executives from the oversight of owners. In other words, corporate political corruption was also conceptualized as a problem of agency costs within firms. This agency costs story of corporate contributions was especially salient in the wake of the radical transformation in corporate law at the end of the nineteenth century that broadened managerial discretion, restricted traditional rights of owners, and paved the way for the separation of ownership from control. Moreover, the underlying campaign finance scandal that paved the way for adoption of the corporate contribution ban - the New York Life Insurance scandal - was one in which opportunism and misuse of other people's money was a paramount theme. As a result of this scandal, the various political partners in the coalition behind the Tillman Act were attracted to, and unified by, the other people's money theme. For Congress and President Roosevelt, partisanship, ideology, and self-interest were all better served by emphasizing other people's money instead of excessive corporate power. This other people's money definition of electoral corruption not only shaped the first federal regulation of corporate campaign activity, but ultimately defined the main channel through which almost all subsequent federal election laws pertaining to corporations would flow. Whereas legal scholars argue that corporations have been subject to special restrictions on their campaign activity due to a desire to restrain excessive corporate power - and thus are meant to further political equality - this article suggests that agency costs provides a better explanation of the trajectory and details of federal law pertaining to corporate involvement in elections. The prevailing tendency in federal campaign finance law on corporations has been to allow corporate involvement so long as firms organize their political activity to avoid agency costs. While other people's money began as a tool to limit corporate involvement in elections, the long reliance since on agency costs since has opened up new avenues of corporate influence - at the expense of political equality rather than in its service. Although we often think of corporate political corruption as business interests buying too much influence, this Article shows that agency costs has also played a formative role in the regulation of corporate politics and, indeed, has become a hidden cornerstone of campaign finance law.

Parry on Terrorism and the New Criminal Process John T. Parry (University of Pittsburgh School of Law) has posted Terrorism and the New Criminal Process on SSRN. Here is the abstract:
    Executive and legislative actions after 9/11 demonstrate a shift in the way the federal government combats terrorism. Traditional law enforcement entities have been given new powers, and military and intelligence personnel have taken on a new prominence. Criminal prosecutions are still being brought against persons suspected of terrorist activity, but the government seems less willing to accord criminal trials a central role in anti-terror efforts. In short, we are seeing the creation of a "new criminal process" for terrorism, a process that in many cases bypasses federal courts and operates wholly outside the territorial boundaries of the United States. All of these actions, moreover, react to the perceived emergency created by the 9/11 attacks. Government officials have argued that a state of emergency exists and - critically - that it is unclear when the emergency will end. Other public figures and the media have largely agreed. "Everything has changed" has became the common theme, and the new criminal process provides a legal ratification of that change - a legal structure for a state of emergency. This essay considers the new criminal process and the perception of emergency out of which it grows from a variety of angles. Although I think the federal government has shifted too far in favor of military and other solutions to terrorism at the expense of traditional criminal processes, my position rest upon a chain of reasoning and a baseline that the new criminal process contests. That deeper contest and its implications are the focus of this essay. To that end, I desribe the attributes for the new criminal process, and provide the arguments for and against the traditional and new criminal processes. I also consider the legality of the new criminal process and conclude that it comports with constitutional norms (which may say more about the malleability of constitutional norms than anything else). The underlying assertion of this essay is that the new criminal process may not be so new. Rather, it may be the latest step in a broad shift in our approach to governing, where pervasive authority is increasingly valued over the constraints of law. This change brings with it modification and dilution of rights, but also the possibility of their expansion within the context of also-expanded state power. Nor is this change occurring without justification. Terrorism is a real policy issue, and rational, liberal-minded people support increased state power to counter the threat. Be that as it may, the critical point is that we are experiencing the modification of the processes by which our government investigates and imposes punishment on people, and the fact that some of these processes arise in the context of the war on terror means, not that those processes are about fighting terrorism, but rather that those processes - the new criminal process - inevitably will and have already begun to generalize.

Avraham & Kohler on Accident Law for Egalitarians Ronen Avraham and issa kohler-hausmann (Northwestern University - School of Law and Northwestern University - School of Law) have posted Accident Law for Egalitarians on SSRN. Here is the abstract:
    This paper questions the fairness of our current tort law regime and the philosophical underpinnings advanced in its defense, a theory known as corrective justice. Fairness requires the moral equality and responsibility of persons be respected in social interactions and institutions. The concept of luck has been used by many egalitarians as a way of giving content to fairness by differentiating between those benefits and burdens which result from informed choice from those that result from fate or fortune. We argue that the theory of corrective justice, and its institutional embodiment of tort law, is at odds with an egalitarian commitment to fairness because it allows luck an unjustifiable role in determining dissimilar liability for similar wrongs, and dissimilar compensation for similar losses to bodily integrity. Many egalitarian political theorists have also recognized, if not defended, the notion of distinct forms of justice, namely corrective, retributive, and distributive. Although theorists of these different forms of justice have been concerned with negating unfair luck inside the operations of each form of justice, there has been little attention to the way in which luck operates to sort cases into each form of justice. We claim that there is a significant way in which luck operates to subject different people to principles of corrective, retributive, and distributive justice - and thereby assessing dissimilar liability for similar wrongs and disparate compensation for similar losses - which flies in the face of the egalitarian value of fairness: a commitment to treating people as moral equals with like interests in being responsible for their own lives. After surveying the arguments put forward by theorists defending a categorical distinction of corrective justice from retributive and distributive principles, we argued that, although analytical distinctions can be made between different forms of justice, (although, we also suggest that the distinctions were not as sharp as some commentators suggest) there is no good reason to defend an acoustic separation between these forms of justice when doing so creates unfair outcomes. We conclude the paper by noting that there are various institutional approaches which could remedy the unfair role of luck we identified in liability and compensation, and by proposing a rough sketch of one such possible alternative to the current tort law system.
This is an important topic!

Call for Papers: Law & Humanities Junior Scholar Workshop
    UCLA School of Law, Columbia Law School, University of Southern California Center for Law, History & Culture, and Georgetown University Law Center invite submissions for the fifth annual meeting of the Law & Humanities Junior Scholar Workshop to be held at USC Law School in Los Angeles, CA on June 6 & 7, 2006. PAPER COMPETITION: The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, the Workshop welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself. Papers should be works-in-progress between 30 and 50 double-spaced pages in length (including footnotes/endnotes). Dissertation chapters may be submitted so long as they can stand alone as an integral piece of work. A paper that has been submitted for publication is eligible as long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the LegalScholarship Network; there is no other publication commitment. TheWorkshop will pay the travel expenses of authors whose papers areselected for presentation. Submissions will be accepted until January 9, 2006, and should be sent by e-mail to: Center for the Study of Law and Culture Columbia Law School 435 W. 116th Street New York, N.Y. 10027 Please be sure to include your contact information. For more information: Eric Bornemann, 212.854.2511 or The full text of the Call for Papers is available at:

Tuesday Calendar

Call for Papers: Law & Economics in Greece
    CALL FOR PARTICIPATION AND PAPERS, 3rd INTERNATIONAL CONFERENCE ON LAW & ECONOMICS - INDUSTRIAL ORGANIZATION, JUNE 12-14, 2006 The Business Research Unit of the Athens Institute for Education and Research organize its 3rd International Conference on Industrial Organization, Law & Economics. The registration fee is 250 euro, covering access to all sessions, 2 lunches, coffee breaks and conference material. Special arrangements will be made with local hotels for a limited number of rooms at a special conference rate. In addition, a one-day cruise to picturesque Greek Islands and a Greek Night will be organized. Papers (in English) from all areas of Industrial Organization, Law and Economics are welcome. Special sessions will be devoted to the following areas of the JEL classification system: LAW & ECONOMICS: Basic Areas of Law - Property Law - Contract Law - Tort Law and Product Liability - Criminal Law - Regulation and Business Law - Antitrust Law -Corporation and Securities Law - Regulated Industries and Administrative Law - Other Substantive Areas of Law - Labor Law - Environmental, Health, and Safety Law - International Law - Tax Law - Legal Procedure, the Legal System, and Illegal Behavior - Litigation Process - Illegal Behavior and the Enforcement of Law. INDUSTRIAL ORGANIZATION: Market Structure, Firm Strategy, and Market Performance - Production, Pricing, and Market Structure; Size Distribution of Firms (Concentration, Product Differentiation, Entry and Exit) - Monopoly; Monopolization Strategies - Oligopoly and Other Imperfect Markets - Transactional Relationships; Contracts and Reputation - Information and Product Quality - Industrial Organization and Macroeconomics; Macroeconomic Industrial Structure - Firm Objectives, Organization, and Behavior - Business Objectives of the Firm - Firm Organization and Market Structure: Markets vs. Hierarchies; Vertical Integration - Organization of Production - Firm Size and Performance - Nonprofit Organizations and Public Enterprise - Nonprofit Institutions - Public Enterprises - Boundaries of Public and Private Enterprise; Privatization; Contracting Out - Antitrust Policy - Monopolization; Horizontal Anticompetitive Practices - Vertical Restraints; Resale Price Maintenance; Quantity Discounts - Legal Monopolies and Regulation or Deregulation - Antitrust Policy and Public Enterprise, Nonprofit Institutions, and Professional Organizations - Regulation and Industrial Policy - Economics of Regulation - Industrial Policy; Sectoral Planning Methods - Industry Studies: Manufacturing, Primary Products and Construction, Services, Transportation and Utilities - Government Policy. Selected papers will be published in a Special Volume of the Conference Proceedings by the Athens Institute for Education and Research. Abstracts should include: Title of Paper, Full Name(s), Affiliation, Current Position, an email address and up to 3 keywords (selected from the above list of areas) that best describe the subject of your submission. Please submit a 300 word abstract by email before January 5th, 2006 to: Dr. Gregory T. Papanikos, Director Athens Institute For Education and Research Conference Email: Telephone: + 30 210 3634210 Fax: + 30 210 3847734 Mailing Address: 8 Valaoritou Street, Kolonaki, 10671 Athens, Greece.

Monday, September 26, 2005
Whose Next? Lee Epstein and Jeffrey Segal have posted a list of the potential nominees for the O'Connor slot on Oxford University Press Blog. Here is a taste:
    Emilio Garza. Court of Appeals, 4th Circuit. Would be first Hispanic named to the Court, but only if Benjamin Cardozo (served 1932-1938) doesn't count (hereafter "oiBCdc"). Has publicly criticized Roe v. Wade and would likely be filibustered. The skinny: Republicans would love to see Democrats attack a highly qualified Hispanic.
Others on their list include Janice Rogers Brown, Alberto Gonzalez, and Michael McConnell. Check it out!

Call for Papers: Ethical Aspects of Risk
    Announcement and Call for Papers Conference Ethical Aspects of Risk 14-16 June 2006 Philosophy Department, Delft University of Technology Keynote speakers:
      Ruth Chadwick University of Lancaster Douglas MacLean University of North Carolina Kristin Shrader-Frechette University of Notre Dame Paul Slovic Decision Research, Oregon
    Technology has advanced human well being in a myriad of respects, such as energy, communication and abilities to travel. Still, every technology also has negative side-effects, such as risks from accidents and pollution. A standard way to judge the acceptability of a specific technology is cost-benefit analysis. However, next to the balance between the benefits and risks of a technology the following considerations seem to be important: the distribution of costs and benefits, whether a risk is voluntarily taken, whether there are available alternatives etc. How to judge whether a risk is acceptable is a pressing ethical question that deserves thorough investigation. There is a vast amount of sociological and psychological research on acceptable risks, but surprisingly, there is only very little research from moral philosophy on risks. This conference aims to fill this gap by bringing together moral philosophers, sociologists, psychologists and engineers to reflect on the ethical issues concerning ‘acceptable risk’. The following questions will be the focus of the conference:
      - What are morally legitimate considerations in judging the acceptability of risks? Is cost-benefit analysis the best way or do we need additional considerations? - What role should emotions play in judging the acceptability of risks? Are they irrational and distorting or are they a necessary precondition for practically rational judgments? - What role should the public play in judging the acceptability of risks (e.g. informed consent procedures analogous to medical ethics)? - Is the precautionary principle a fruitful tool in dealing with risks
    Call for papers: abstracts due by December 1st 2005. Submit an abstract of ca 750 words with information about academic affiliation to For inquiries, contact the organization committee through Organization: Sabine Roeser and Lotte Asveld (Philosophy Department, Delft University of Technology); conference management: Henneke Piekhaar

McGinnis on Foreign Law and Constitutional Interpretation John O. McGinnis (Northwestern) has posted Foreign to our Constitution (Northwestern University Law Review, 100th Anniversary Symposium) on SSRN. Here is the abstract:
    This essay argues against most use of international and foreign law in constitutional interpretation, particularly its use to displace state or federal statutory law. I separately address arguments based on foreign law and those based on international law. There is no reason to think that foreign laws, including foreign judicial decisions, contain better norms for the United States than those made democratically here, because foreign laws do not purport to be good norms for the United States, but instead emerge from different, complex social structures. As to international law, I discuss the main reason that international law might be thought to be useful as a factor to impeach conflicting United States law­its norm universality. I will then show that this claim is undercut by international law's democratic deficit. It is no answer to reply that constitutional law may legitimately rely on on norms that are not democratically validated, such as norms that are good by virtue of some economic or moral theory. The mere fact that a proposition is contained in international law does not make it intrinsically good. I also show that using international or foreign law to displace American law decreases the diversity of global rules and undermines American experimentation that has in the past paid dividends to the entire world. Moreover, reliance on international or foreign law undermines self-governance by encouraging interest groups, domestic and foreign, to frame international and foreign law with a view toward influencing our domestic law. Finally, I describe the real function that use of international and foreign law serves in our contemporary system of constitutional adjudication­as a mode by which the aristocratic element of a mixed regime cloaks judgments that it does not want to defend on its own authority.
I always find McGinnis;s work to be interesting, illuminating, and intelligent.

Schultz on Copynorms & Jambands Mark Schultz (Southern Illinois) has posted Fear and Norms and Rock & Roll: What Jambands Can Teach Us about Persuading People to Obey Copyright Law on SSRN. Here is the abstract:
    Conventional wisdom says, with ample justification, that we cannot persuade the average individual to comply voluntarily with copyright restrictions on works like popular music. This Article challenges that conventional wisdom with the example of a community of music fans centered on artists known as "jambands." The jamband community has developed social norms that reinforce and respect artists' copyrights. The experience of the jamband community provides a model for the development of pro-copyright social norms in a world where compliance with copyright laws is increasingly a matter of individual choice. This Article examines the problem of filesharing in light of research regarding what motivates people to obey laws. Studies indicate that people are motivated at least as much by their belief that a law is moral as they are by fear of the consequences of violating it. In fact, attempting to enforce laws that contradict social norms too greatly may be counterproductive. Nevertheless, copyright owners have focused almost exclusively on deterrence rather than fostering social norms that support compliance. They would do well to try to persuade people that obeying copyright law is the right thing to do, rather than merely prudent. This Article presents a case study, based on extensive first-hand observation, of the social norms of a community that respects copyright. The jamband community is a vital and growing movement in popular music that includes some of the top-grossing touring bands in the country. The original jamband was the Grateful Dead, but the label now applies to bands from many genres. What defines a jamband more than anything else is its policy regarding intellectual property: Jambands allow their fans to record live shows and to copy and distribute the recordings freely. Jambands have developed a unique bond of trust with their fan community, which has developed social norms against copying musical works that jambands have designated as "off limits." These restricted works are typically studio recordings or live releases sold commercially. The community enforces these norms, sometimes even reporting violations to the bands' attorneys. The social norms of the jamband community might be a mere curiosity but for the fact that they appear to be based on a deeply rooted human behavioral trait known as reciprocity. Reciprocity motivates people to repay the actions of others with like actions - value received with value given, kindness with kindness, cooperation with cooperation, and non-cooperation with retaliation. Under the right circumstances, reciprocity can foster and sustain pro-social, cooperative social norms. This Article examines the latest laboratory and theoretical research on reciprocity from behavioral and experimental economics and applies it to the social norms of the jamband community. Since the social norms of the jamband community are rooted in this universal behavioral trait, we can draw several potential lessons for the mainstream music community. The example of the jamband community may offer a "carrot" to accompany (or supplant) the "stick" of lawsuits. It also offers an alternative to proposals for ever-escalating regulation, more restrictive technology, or radical changes to copyright law. The Article concludes with several concrete proposals for changing business models and enforcement strategies to promote pro-copyright social norms.
Fascinating! And recommended. This is part of a growing body of work on copynorms--one of the most important topics in contemporary IP scholarship.

Monday Calendar
    Columbia Law & Economics: Alan Schwartz, Yale Law School, Visiting New York University Law School, "The Law and Economics of Preliminary Agreements," (Co-author Robert E. Scott).
    Florida State Law: Michael Vandenbergh, Vanderbilt University Law School, Private Life of Public Law.
    George Washington Intellectual Property Series: Xuan-Thao Nguyen, Southern Methodist University Dedman School of Law, “Collateralizing Intellectual Property”.
    Georgetown Environmental Workshop Series: Richard Revesz, New York University School of Law, "The Law and Economics of New Source Review"
    Hofstra University Law: Robin Charlow, Hofstra University School of Law “The Elusive Meaning of Religious Equality”.
    NYU Law: Rob Sitkoff.
    Vanderbilt Law: Andrea Melis, University of Cagliari, Italy, Department of Economics, "Corporate Governance Failures: To What Extent is Parmalat a Particularly Italian Case?"

Moral Instincts? Rebecca Saxe has a piece in the Boston Review, entitled Do the Right Thing: Cognitive science’s search for a common morality. Here's a taste:
    Very recently, though, the use of moral dilemmas to study moral universals has reemerged. Marc Hauser of Harvard University and John Mikhail of Georgetown University are among the cognitive scientists leading the charge. The current theorists take as their model for moral reasoning not conscious problem-solving, as Kohlberg did, but the human language faculty. That is, rather than “moral reasoning,” human beings are understood to be endowed with a “moral instinct” that enables them to categorize and judge actions as right or wrong the way native speakers intuitively recognize sentences as grammatical or ungrammatical.
If you are interested in this line of research, you can download 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.

Sunday, September 25, 2005
Legal Theory Calendar
    Monday, September 26
      Columbia Law & Economics: Alan Schwartz, Yale Law School, Visiting New York University Law School, "The Law and Economics of Preliminary Agreements," (Co-author Robert E. Scott).
      Florida State Law: Michael Vandenbergh, Vanderbilt University Law School, Private Life of Public Law.
      George Washington Intellectual Property Series: Xuan-Thao Nguyen, Southern Methodist University Dedman School of Law, “Collateralizing Intellectual Property”.
      Georgetown Environmental Workshop Series: Richard Revesz, New York University School of Law, "The Law and Economics of New Source Review"
      Hofstra University Law: Robin Charlow, Hofstra University School of Law “The Elusive Meaning of Religious Equality”.
      NYU Law: Rob Sitkoff.
      Vanderbilt Law: Andrea Melis, University of Cagliari, Italy, Department of Economics, "Corporate Governance Failures: To What Extent is Parmalat a Particularly Italian Case?"
    Tuesday, September 27 Wednesday, September 28
      Loyola Law School, Los Angeles: Richard Sander, Professor of Law, UCLA School of Law "Affirmative Action in Law Schools: The Debate on the Mismatch Theory."
      NYU Legal History: Chaim Saiman, Golieb Fellow, “Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law”
      Ohio State Law: Sarah R. Cole, Mediation Confidentiality: A Promise Unfulfilled?
      University of Alabama Law: Sheila Foster, Fordham University, The City as an Ecological Space.
    Thursday, September 29 Friday, September 30
      University of Georgia Law: Sean J. Griffith (University of Connecticut) – Unleashing a Gatekeeper.
      Vanderbilt Law: Andrew Martin, Washington University in St. Louis Political Science, "The Median Justice on the U.S. Supreme Court, and Some Thoughts on the Roberts Court"
      Villanova Law: Teemu Ruskola, American University, Washington College of Law, "Canton Is Not Boston: The Invention of American Imperial Sovereignty in the Nineteenth Century"
      Yale Law, Economics, and Organizations: Professor Lawrence Katz, Harvard, Economics with Professor Jeffrey Kling, Princeton, Economics, Experimental Analysis of Neighborhood Effects.

Legal Theory Lexicon: Holdings
    And what is the holding, Ms. Sanchez?
    Introduction It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of the concept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So here we go!
    Holding, Dicta, and Stare Decisis It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents! Given that court decisions set precedents, the question naturally arises: what is the precedential effect of a decision? The traditional answer to that question is that subsequent courts are bound to follow the holding of a decision, but they are not bound by mere dicta--statements that are "unnecessary to the decision." This is as good a place as any to mention that "dictum" is the singular (one unecessary statement) whereas the word "dicta" is the plural of dictum, meaning two or more such statements.
    Just a bit more about stare decisis So to understand the idea of a holding, you also must have a basic knowledge of the doctrine of stare decisis, which is just the fancy Latin phrase for "precedent." Here are some very basic points:
    • Vertical stare decisis refers to the power of higher courts to bind lower courts. All courts in the United States are bound by vertical precedent to follow the holdings of decisions by the United States Supreme Court.
    • Horizontal stare decisis refers to the power of a court to bind itself. The United States Supreme Court does not consider itself bound by its own prior decisions, although it says that it gives them "substantial weight" in its deliberations. The intermediate appellate courts in the federal system are called the United States Courts of Appeal (USCA). When a USCA sits in an ordinary three judge panel, the panel is bound by the prior decisions of the Court. (The USCA is divided into circuits, e.g. the First Circuit, Second Circuit, etc.) However, each Circuit is free to overrule its own prior decisions if it is constituted as an en banc court--that is, the full complement of judges on the Circuit sit on a panel. (The Ninth Circuit is different for reasons I won't explain here.)
    A Loss of Faith in the Existence of the Holding Law students are generally introduced to holdings very early in their law school careers. The professor may play some socratic games with early cases, manipulating students into giving broader and narrower formulations of the holdings of the cases. It is quite likely, however, that these games will stop long before the class has a very clear idea of what a holding even is. One of the reasons for this is that the very idea of a holding best makes sense in the context of legal formalsim but most law professors (consciously or unconsciously) have adopted some form of neorealism--they no longer believe in holdings. And when you don't believe that holdings really exist, it hardly makes sense spending a lot of class time trying to master what they are.
    Two Theories of Holdings In fact, there are two theories of what constitutes the holding of a case. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are:
    • The Formalist Theory of the Holding. The formalist view is that the holding of a case is its ratio decidendi. What in the world does that mean? The ration decendi is the reasoning necessary to reach the result. Early in law school, you might get a professor who tries to whittle the holding of a case down to its ration decendi by asking questions which force the student to see that the rule that she has formulated as the "holding" is broader than the facts of the case. It is very important to understand that identifying the ratio decidendi of a case involves judgments of legal salience. Thus, if the case involves an automobile accident, we know that some facts (the car was red, the accident happended on a Tuesday) are not legally salient and hence are irrelevant to the holding. Other facts (the driver was speeding or the driver was intoxicated) may be legally salient and hence are candidates for inclusion int he holding. Even on the formalist theory of holdings, identification of a holding requires the exercise of practical judgment. If someone tells you that formalists believed that holdings could be identified mechanically, then that person is trying to characterture legal formalism--likely for the purpose of dismssing it.
    • The Realist Theory of Holdings. Legal realists have a very different theory of what constitutes a holding. Here is one way of getting at it. Legal realists view holdings as predictions of what future courts will do. The holding of a case is simply the best prediction that we can extract from the opinion as to what rule the court would apply in future cases. And what is the best evidence of how a court will behave in the future? Arguably, the best evidence is the court's own statement as to what rule it will apply in the future. This means that legal realists become very interested when a court introduces a statement of the rule with the statement: "We hold that . . . " No matter how broad this statement might be, the fact that the court pronounced it, legislatively, as a holding is strong evidence that the court regards what follows "We hold that . . ." as its own prediction as to what it will do in the future.
    What is the debate between realists and formalists really about? So there are different theories about holdings, realist and formalist. What is the debate between these two theories about? There are two answers to that question. First, there is a descriptive debate. Formalists may be claiming that when judges use the term "holding" they are, in fact, referring to the ratio decidendi of a case. Realits may be claiming that when judges use the word "holding" they are, in fact, making a prediction about what the court will do in the future. But in addition to the descriptive debate, there is a prescriptive controversy. Legal formalists may acknowledge the existence of legislative style holdings, but argue it wrong to give courts the power to legislate in this way. Likewise, legal realists may be willing to concede that some courts still use holding in its "old-fashioned," ratio decidendi sense, but argue that judges should employ legislative style holdings, in order to produce good consequences. It is always important to sort out the descriptive and prescriptive strands in this sort of debate.
    Conclusion The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least two holdings when you read a case. First, look for the true ratio decidendi, the narrowest reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court. And then you might compare the two holdings that emerge from these two inquries. Which is broader? Which is narrower? If you read subsequent cases that discuss this case, then you can ask a further question, "Which holding was recognized by subsequent courts as the the holding of the case?"
    If you are frequently reader of Legal Theory Blog, you will know that I am a proponent of the formalist view of stare decisis. If you would like to read more about why I think, this surf to my three part series: The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument, Part II: Stare Decisis and the Ratchet, and Part III: Precedent and Principle.
    For past and future installments in the Legal Theory Lexicon series, you can surf here.

Saturday, September 24, 2005
Legal Philosophy, Sociology, and Social Philosophy Check out the continuing debate between Nico Artzi and Dennis Patterson. If I might add a comment of my own, one of Artzi's point goes to the "armchair" sort of analysis that characterizes analytic philosophy in general and analytic jurisprudence in particular. I think most contemporary philosophers recognize the limitations of this approach, and it is fair to say that contemporary philosophy has entered a post-analytic phase. But I am much less convinced by Artzi's claim that the remedy is a turn to "social philosophy," with Habermas as an exemplar. I say this even though I am sympathetic to Habermas's project. There is much to be said for clarity and analytic precision, and a good deal of social philosophy in the continental tradition is obscure and (in my opinion) fuzzy. If this sort of thing interests you, the short exchange between Patterson and Artzi is worth a look.

Legal Theory Bookworm The Legal Theory Bookworm recommends Law and Objectivity by Kent Greenawalt. Here's a blurb:
    In modern times the idea of the objectivity of law has been undermined by skepticism about legal institutions, disbelief in ideals of unbiased evaluation, and a conviction that language is indeterminate. Greenawalt here considers the validity of such skepticism, examining such questions as: whether the law as it exists provides determinate answers to legal problems; whether the law should treat people in an "objective way," according to abstract rules, general categories, and external consequences; and how far the law is anchored in something external to itself, such as social morality, political justice, or economic efficiency. In the process he illuminates the development of jurisprudence in the English-speaking world over the last fifty years, assessing the contributions of many important movements.
I am a big fan of Greenawalt's thoughtful and careful work. Highly recommended!

Download of the Week The Download of the Week is The Source of Blackstone's Intuition: Why We Think it Better to Free the Guilty than to Convict the Innocent by Sam Vermont. Here is the abstract:
    What is the source of the intuition, famously articulated by William Blackstone, that it is better to let a multitude of guilty persons escape than to convict an innocent person? This paper argues that a main source of the intuition is a bias against conviction that arises from various psychological quirks. These quirks simply render false conviction more salient than false acquittal.
Download it while its hot! This paper is fascinating, both for what it says and for what it doesn't.

Friday, September 23, 2005
Call for Papers: Duke Law Journal Conference on Katrina Duke Law Journal will be hosting a conference this March on the administrative law issues arising from Katrina. The call for papers is here:

Friday Calendar
    Harvard Law School Public Law Workshops: Kathleen Sullivan, Stanford Law School.
    Washington & Lee Law School: Winnifred Fallers Sullivan, Senior Fellow, Martin Marty Center at the University of Chicago Divinity School, 57th John Randolph Tucker Lecture, “Comparing Religions, Legally.”
    Georgetown International Human Rights Colloquium: Ruti G. Teitel, New York Law School.
    Harvard Public Law, Kathleen Sullivan, Stanford.
    UCLA Law: Pierre Legrand, University of Paris Pantheon-Sorbonne, Comparative Legal Studies and the Matter of Authenticity: Looking at the US Supreme Court as Comparatist in Lawrence v. Texas
    University of Pennylvania Philosophy Colloquium: Kok-chor Tan, The Boundary of Justice, and the Justice of Boundaries.
    University of Texas Law: Brian Leiter, "Why Evolutionary Biology is (so far) Irrelevant to Law."
    Cancelled, To Be Rescheduled: University of Alabama School of Law: Ernest Young, University of Texas, The Volk of New Jersey? Sovereignty and Political Community in Europe and the United States.

Book Announcement: On Adam Smith's Wealth of Nations by Samuel Fleischacker
    On Adam Smith's Wealth of Nations A Philosophical Companion Samuel Fleischacker To read the entire book description or a sample chapter, please visit: Adam Smith was a philosopher before he ever wrote about economics, yet until now there has never been a philosophical commentary on the Wealth of Nations. Samuel Fleischacker suggests that Smith's vastly influential treatise on economics can be better understood if placed in the light of his epistemology, philosophy of science, and moral theory. Paper | $19.95/ £12.95 | ISBN: 0-691-12390-X Cloth | 2004 | $55.00 / £35.95 | ISBN: 0-691-11502-8

Conference Announcement: Examining Folk Psychology
    York University’s Department of Philosophy and Program in Cognitive Science Presents:
      Examining Folk Psychology A one-day conference dedicated to exploring how minds understand other minds
    Saturday September 24, 2005 3009 Vari Hall York University 4700 Keele St. Toronto, Ontario Program:
      10:30 Katherin Glüer-Pagin (Uppsala University) Is Seeing Believing? On Folk Psychology and Perceptual Content 11:45 Daniel Hutto (University of Hertfordshire) The Narrative Practice Hypothesis 1:00 Lunch 2:00 Heidi Maibom (Carleton University) I Feel What You Think: Interest Relativity in Folk Psychological Attribution 3:15 Peter Pagin (Stockholm University) ‘I Know Exactly How that Feels.’ On Communicating About Sensations 4:30 Karsten R. Stueber (College of the Holy Cross) Empathy and Folk Psychological Explanations
    There is no fee to attend this conference. To register please email Kristin Andrews at

Conference Announcement:
    The Center for Informed Food Choices and Loyola Law School, Los Angeles, present:
      Food Marketing to Children and the Law A symposium of the Loyola of Los Angeles Law Review Friday, October 21
    With rising childhood obesity rates, public health advocates are becoming increasingly concerned with the impact of junk food marketing to children. Yet legal questions loom large about how to address the issue. Come to this cutting-edge symposium to hear leading experts from around the country speak on such critical topics as: the commercial speech doctrine, industry self-regulation, litigation as a tool, and lessons learned from the tobacco wars. Speakers include:
      Susan Linn, Judge Baker Children's Center, Harvard Medical School Tracy Westen, Center for Governmental Studies and former deputy director, Federal Trade Commission Angela Campbell, Georgetown University Law Center David Yosifon, Rutgers University School of Law Ellen Fried, Rudd Center for Food Policy and Obesity, Yale University Stephen Gardner, Center for Science in the Public Interest Jason Smith, Public Health Advocacy Institute Randolph Kline, Public Health Law Program Amanda Shaffer, Occidental College
    Date: Friday, October 21, 2005 Time: 1-5pm Location: Robinson Courtroom on the campus of Loyola Law School 919 Albany Street, Los Angeles, CA For directions to the campus, go to Parking is available on campus at a cost of $6. Admission: Free. No advance registration is required, but please RSVP to Bridget Klink, Law Review Coordinator, at (213) 736-1407 or For more information, contact Michele Simon, Symposium Coordinator, at (510) 465-0322 or For details, visit:

Thursday, September 22, 2005
Thursday Calendar

Conference Announcement
    EMOTIONS AND RATIONALITY IN MORAL PHILOSOPHY CONFERENCE October 27-29 2005 Neuchâtel-Berne, Switzerland The University of Neuchâtel and The Swiss association for Graduate Students in Philosophy (Sequitur) is proud to announce its conference on “Emotion and Rationality in Moral Philosophy” which will be held at the Universities of Neuchâtel and Bern (CH) from October 27 to October 29 (Thursday to Friday). Speakers include: Ronald De Sousa (Toronto), Kevin Mulligan (Geneva), Peter Goldie (London, Manchester), Christine Tappolet (Montréal), Laurent Jaffro (Clermont-Ferrand) Program and all relevant information concerning the conference can be found on the conference website: If you wish to attend the conference, please follow the instructions posted here:

Wednesday, September 21, 2005
Borgen on Norms & Transnational Tribunals Christopher Borgen has posted Transnational Tribunals and the Transmission of Norms: The Hegemony of Process on SSRN. Here is the abstract:
    Transnational tribunals-mechanisms that allow sub-national actors such as individuals and companies to sue states for infringements of their rights-are not only proliferating in number, they also have larger caseloads covering more substantive areas than ever before. My article assesses whether and how such tribunals cause normative change in the domestic legal and political systems of member states. At issue is not only whether a state chooses to comply with an adverse ruling, but whether the actual norms-the beliefs and habits-of the society change. Drawing on legal theory as well as sociology, game theory, and international relations theory, I compare and contrast the effects of tribunals focused on human rights with those concerned primarily with contractual and property rights. I conclude that instead of normative transmission being simply a form of legal imperialism by Western democracies, as some have argued, there are actually many different constituencies building alliances across state and class lines in attempts to forward their claims both domestically and internationally. All of these constituencies-corporate interests, human rights activists, environmentalists, and indigenous peoples-access and use the tools of globalization via the means of transnational legal process, such as adjudication before transnational tribunals. This is neither the North versus the South, nor the global versus the local, but rather the struggle of communities that transcend state borders, have competing conceptions of the good, and use the tools of globalization. Their common use of similar legal mechanisms leads to a "hegemony of process" in which certain outcomes are favored by certain procedural structures.

Wednesday Calendar
    Loyola Law School, Los Angeles: Lars Waldorf, World Policy Institute, New School University, "Mass Justice for Mass Atrocity: Rethinking Local Justice As Transitional Justice".
    NYU History: Serena Mayeri, Golieb Fellow, "The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse."
    Northwestern Law & Economics: Jonathan Klick, Jeffrey A. Stoops Professor of Law, Florida State University, "Abortion Access and Risky Sex Among Teens: Parental Involvement Laws and Sexually Transmitted Diseases"
    Villanova Law: Alafair Burke, Hofstra University School of Law, "Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science"

Google Print Lawsuit & Class Certification The New York Times reports on a potential class-action lawsuit filed by authors against Google Print in a story entitled Writers Sue Google, Accusing It of Copyright Violation. Here's a taste:
    Three authors filed suit against Google yesterday contending that the company's program to create searchable digital copies of the contents of several university libraries constituted "massive copyright infringement." The lawsuit, filed in United States District Court in Manhattan, is the first to arise from the Google Print Library program, the fledgling effort aimed at a searchable library of all the world's printed books.
The complaint can be found here. Putting on my proceduralist hat for a moment, there is a very substantial problem with class certification. The complaint defines the class as follows:
    The Class is initially defined as all persons or entities that hold the copyright to a literary work that is contained in the library of the University of Michigan.
That class includes many authors who would be injured if the plaintiffs were to prevail--including, for example, me! I am member of the plaintiff class--owning the copyright to at least three or four dozen works in the University of Michican library. I have a very strong objective interest in Google Print succeeding--because as a scholar, I benefit from the dissemination of my works and because reaching agreement with Google will be costly to me and Google, essentially killing the project. A substantial intraclass conflict of interest destroys "adequacy of representation," making class certification inappropriate, both under the federal rules of civil procedure and under the due process clause of the fifth amendment of the U.S. Constitution. Opt out is not a solution--because that would create an affirmative duty to monitor the litigation and opt out (in order to preserve a constitutional right), and the Supreme Court has made it clear that no such duty should be created in a number of cases, including Phillips Petroleum v. Shutts. Pro-bono representation for intervenors opposing certification, anyone?

Conference Announcement: Justice & IP
    Theories of Justice and Intellectual Property: A one day conference October 28, 2005, 9 a.m. - 6 p.m. Salle du Conseil, Facultés universitaires Saint-Louis, Boulevard du Jardin botanique 43, 1000 Brussels (4e étage) Convenors : Axel Gosseries, Alain Marciano and Alain Strowel Schedule:
      9 h. Introduction Alain Marciano, Université de Reims Champagne Ardenne 9 h 15 . The insusceptibility of intellectual property to Lockean justifications Daniel Attas, The Hebrew University of Jerusalem 10h15-10h 30 Coffee Break 10h30. Libertarianism and Copyright Jonathan Trerise, University of Missouri-Columbia 11h30 . Biopiracy and the Misuse of Intellectual Property Clark Wolf, Bioethics Program, Iowa State University 12h30-14h Meal 14h. The Case for A Regulatory Intellectual Property Law Shubha Ghosh, University at Buffalo Law School, SUNY 15h-15h15 Tea Break 15h15-16h15. Is copyright property? Leif Wenar, University of Sheffield 16h15-17h15. Access versus exclusion to knowledge: balancing the effects of intellectual property rights on social context Giovanni Ramello, Università Carlo Cattaneo, LIUC 17h15-18h Concluding comments and general discussion : Alain Strowel, Fac. universitaires St-Louis and Axel Gosseries, FNRS/Univ. Cath. de Louvain
    REGISTRATION Free but compulsory by October 15, 2005, by sending an E-mail to Nadine Noel (tel : 02/211.79.58) or, if after the 15th, to Thérèse Davio (tel 010/47.39.51) with the following information: Surname - First name - Institution - Postal address - E-mail

Tuesday, September 20, 2005
Roberts in His Own Words John Roberts in His Own Words is a handy dandy compilation of his statements during the confirmation process. Here is a taste, from the section on Roberts's views on stare decisis or precedent:
    “It is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.” (September 13)
    “[S]tare decisis is not an inexorable command. . . . At the same time, you always have to take into account the settled expectations that have grown up around the prior precedent. It is a jolt to the legal system to overrule a precedent, and that has to be taken into account, as well as the different expectations that have grown up around it.” (September 13)

Book Announcement: Williams on Moralism and Realism in Political Argument
    In the Beginning Was the Deed: Realism and Moralism in Political Argument by Bernard Williams Selected, edited, and with an introduction by Geoffrey Hawthorn To read the entire book description or a sample chapter, please visit: Bernard Williams is remembered as one of the most brilliant and original philosophers of the past fifty years. Widely respected as a moral philosopher, Williams began to write about politics in a sustained way in the early 1980s. There followed a stream of articles, lectures, and other major contributions to issues of public concern--all complemented by his many works on ethics, which have important implications for political theory. This new collection of essays, most of them previously unpublished, addresses many of the core subjects of political philosophy: justice, liberty, and equality; the nature and meaning of liberalism; toleration; power and the fear of power; democracy; and the nature of political philosophy itself. Cloth | $29.95 / £18.95 | ISBN: 0-691-12430-2

Tuesday Calendar

Gely & Caron on the Next Generation of Law School Rankings Rafael Gely and Paul Caron have posted Dead Poets and Academic Progenitors: The Next Generation of Law School Rankings on SSRN. Here is the abstract:
    This Symposium is an outgrowth of our article, What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Tex. L. Rev. 1483 (2004). With the approaching twentieth anniversary of the first U.S. News & World Report law school rankings, it is a particularly propitious time to take a fresh look, to hear new voices, and to reconsider issues surrounding law school rankings. Many of America's most thoughtful law professors (as well as academics in other disciplines) gathered on April 15, 2005 at the Indiana University School of Law - Bloomington to discuss The Next Generation of Law School Rankings. The papers and commentary presented at the event and recorded in these pages reflect a wide array of creative, challenging, and captivating perspectives on the rankings tableau. In the pages that follow, we are confident that you will agree that we have fulfilled the goal we set for the Symposium:
      The goal of this Symposium is to deepen our understanding of rankings and their effects on legal education. The participants in this Symposium will examine the need for law school rankings; the effects of rankings on legal education; and the various new approaches to addressing the public's insatiable demand for ever more and increasingly sophisticated rankings, which permeate not only legal education but also all aspects of American life.
    We believe the Symposium papers and commentary make an enormous contribution to our understanding of rankings and their effects on legal education.

Book Announcement: Athenian Legacies by Ober
    Athenian Legacies: Essays on the Politics of Going On Together by Josiah Ober To read the entire book description or the introduction, please visit: How do communities survive catastrophe? Using classical Athens as its case study, this book argues that if a democratic community is to survive over time, its people must choose to go on together. That choice often entails hardship and hard bargains. In good times, going on together presents few difficulties. But in the face of loss, disruption, and civil war, it requires tragic sacrifices and agonizing compromises. Cloth | $29.95 / £18.95 | ISBN: 0-691-12095-1

Monday, September 19, 2005
Artzi & Patterson on the State of Jurisprudence Over at Law & Society Weblog, Nico Artzi has a post entitled What’s wrong with Jurisprudence?. The central claim is:
    As observations of the communicative action of any conference in legal philosophy betray, jurisprudes have been devoutly monotheistic, worshiping a single god: the god of moral philosophy. For reasons that have to do with the history and sociology of ideas – not substantive reasons – jurisprudes are infatuated with moral philosophy and are forever seeking the approval of moral philosophers. Many seem to be attached to the belief that legal philosophy – a philosophy of a social phenomenon – can be produced using the same ‘methodologies’ as those of moral philosophy.
Dennis Patterson comments:
    With all due respect, this attack on analytic jurisprudence is a bit muddled. The primary claim seems to be that the central “problem” of analytic jurisprudence is worship of “the god of moral philosophy.” Anyone familiar with, say, HLA Hart’s book *The Concept of Law* could hardly characterize the book as preoccupied with the methodology of moral philosophy. How, if at all, is Hart’s distinction between Primary and Secondary Rules taken from moral philosophy (hint: it isn’t)? Does Hart’s attack on Austin’s account of law proceed from moral philosophy? No, it does not. And is Hart’s account of adjudication in Chapter 7 of *Concept* based in the least on anything drawn from moral philosophy? No, it is not. And when leading contemporary legal philosophers like Jules Coleman turn to Sellars and Bratman (neither a moral philosopher) for analytic tools to enhance their accounts of law, Mr. Artzi’s critique has no account of this. Analytic philosophy may be in a state of ill health. If it is, worship of the methods of moral philosophers is not the cause.
Patterson is surely right that the methods of moral philosophy hardly dominate analytic jurisprudence--although they play a central role in normative legal theory in important subfields, e.g. criminal law.
Of course, both law and morality are social phenomena, but Artzi realy produced no argument against utilization of the methods of moral philosophy in normative legal theory. One could try to make the case that morality is simply irrelevant to normative claims about criminal law, for example, But such a claim will be difficult to establish and it will require arguments, not bluster, to make the case.

Call for Papers: Society for Applied Philosophy at Manchester
    CALL FOR PAPERS: SOCIETY FOR APPLIED PHILOSOPHY, ANNUAL CONFERENCE 2006 THE PHILOSOPHY OF PUBLIC HEALTH Chancellors Conference Centre, Manchester University 30th June-2nd July 2006 This conference will explore a number of themes arising from the broad topic of the philosophy of public health. Public health is an area of health care that involves elements from many other disciplines including medicine, life and environmental sciences, economics, law and ethics. Public health is concerned with health in its broadest sense, and the health of groups or populations, not just individuals. These factors mean that this area of health care involves many interesting conceptual, empirical and ethical issues. The themes of the conference will include (but are not limited to) the following:
      What is 'public health'? How is 'public health' related to 'population health'? What range of factors need to be taken into account when thinking about public health? Is public health just the sum of the health of the constituent individuals? Can public health be measured? If so, how? What ethical issues emerge during such measurement? What responsibilities do we have to respond to health inequalities? Do we have any obligations to provide international aid? How is the balance between the interests of populations and individuals to be weighed? What ethical issues arise in relation to research in public health? Can 'prevention' be separated from 'cure'? What ethical issues arise in relation to the translation of potential public health benefits into public policy (e.g. in relation to smoking or obesity)? What is the legitimate role of the law in public health? In what sense should public health policy be formulated in response to public wishes or individual choice?
    Please send abstracts (electronic format preferred) of not more than 300 words to: or: Society for Applied Philosophy Philosophy King's College University of Aberdeen AB24 3UB SCOTLAND Deadline for submission: 5th December 2005

Conference Announcement: Conference for Thomas E. Hill Jr. at the University of Minnesota
    Conference for Thomas E. Hill Jr. Nov. 4-6, 2005 at the University of Minnesota in Minneapolis Thomas E. Hill Jr., is Kenan Professor of philosophy at the University of North Carolina at Chapel Hill. He has written several books on Kantian ethics, including Human Welfare and Moral Worth: Kantian Perspectives (Oxford University Press, 2002); Respect, Pluralism and Justice: Kantian Perspectives (Oxford University Press, 2000). Most recently, he has co-edited a new edition of Kant's Groundwork for the Metaphysics of Morals with Arnulf Zweig (Oxford University Press, 2003). Tom has inspired many students, colleagues and friends in philosophy throughout his career and this conference honors him for his inspiration, influence and encouragement. The program includes papers by Marcia Baron, Macalester Bell, Bernard Boxill, Claudia Card, Lara Denis, Richard Galvin, Barbara Herman, Robert Johnson, and Andrews Reath. Of course, Tom himself will also be here! The conference sessions are open to everyone free of charge and we very much hope you will be able to join us. Lately, Minnesota has been quite lovely (and not too cold) in early November! For more information about the conference, travel, and accommodations, please visit our website at: or contact us at the email addresses below. Note that reservations at the Radisson Metrodome must be made before Oct. 10 to receive the conference rate of $92/night.
Tom Hill taught my very first moral philosophy course when I was at the UCLA in the 1970s! This should be a grat event!

Monday Calendar
    Hofstra Law: Adam Kolber, University of San Diego School of Law, “Freedom of Memory”.
    Georgetown Environmental Research Workshop: Professor Robert Percival University of Maryland School of Law, "Who's Afraid of the Precautionary Principle?"
    Columbia Legal Theory Workshop: Andrew Rehfeld of Washington University in St Louis, "Towards a General Theory of Political Representation"
    Vanderbilt Law: Sean Griffith, University of Connecticut School of Law, "Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies"

Barros on Home as a Legal Concept Benjamin Barros (Widener Law School) has posted Home as a Legal Concept on SSRN. Here is the abstract:
    This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal issues involving the home. The article concludes that homes are different from other types of property and give rise to legal interests deserving of special legal protection, but that these interests can be outweighed by competing interests in particular legal contexts. The result is that in many contexts special legal treatment of homes is justified. In other contexts, for example residential rent control, the strength of competing interests means that the law overprotects the home. In still other contexts, for example eminent domain law as embodied by the Supreme Court's recent decision in Kelo v. New London, the law tends to underprotect the home.

Conference on Trust Today at Cardozo
    Trust Law in the 21st Century: The last 15 years have brought dramatic changes to the law of trusts, an area long known for stability rather than innovation. The conference will explore three doctrinal areas in which significant developments have occurred: The growth of the perpetual trust, fueled by the demise of the Rule Against Perpetuities The move by many states and offshore jurisdictions to increase the availability of trusts for asset protection purposes Schedule:
      Changing conceptions of fiduciary duty 9:15 am: Perpetual Trusts Moderator: Eric Rakowski (UC-Berkeley) Speakers: Robert H. Sitkoff (Northwestern) Max Schanzenbach (Northwestern) Susan F. French (UCLA) Commentators: Joel Dobris (UC-Davis) Mary Louise Fellows (Minnesota) 11:15 am: Asset Protection Moderator: Mark L. Ascher (Texas) Speakers: Robert T. Danforth (Washington & Lee) John K. Eason (Tulane) Commentators: Jeffrey A. Schoenblum (Vanderbilt) Adam J. Hirsch (Florida State) 2:30 pm: Fiduciary Duties Moderator: Ray D. Madoff (Boston College) Speakers: Melanie B. Leslie (Cardozo) Stewart E. Sterk (Cardozo) Commentators: Gregory S. Alexander (Cornell) Karen E. Boxx (Washington)

Sunday, September 18, 2005
Legal Theory Calendar

Legal Theory Lexicon: The Reasonable Person
    Who is the reasonable person and why hasn't she been attending class?
    Introduction Good morning from Newton, Massachusetts. Today's Legal theory Lexicon is about the "reasonable person," who used to be the "reasonable man" and is now occasionally the "reasonable woman." This topic was suggested to me by my host and friend, the eminently reasonable (and rational) Ken Simons of the Boston University law faculty yesterday, and Ken and I kicked around the ideas that follow.
    The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory.
    A cautionary note. The word "reasonable" is used in a wide variety of legal contexts, some of which have very little to do with the reasonable person. In Antitrust law, for example, the notion of "an unreasonable restraint of trade" is crucially important, but this topic does not, at least on the surface, have anything to do with the reasonable person of torts and criminal law.
    The Reasonable and the Rational This is, after all, Legal Theory Blog, so I hope you will forgive me for starting at a fairly high level of abstraction. "Reasonable" and "rational" are used in many different contexts and have a variety of meanings, but when I think about the "reasonable," the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls.
    When the rational is defined in contradistinction to the reasonable, rational usually refers to instrumental rationality--that is, the rationality of ends and means. Given that an agent has end X, it is rational for the agent to engage in action Y, only if Y will lead to X. Instrumental rationality is relative to the ends of a particular agent, and may (but need not) consider the interests of others. Thus, it may be instrumentally rational for me to steal from you, if you have something that I want and I have good reason to believe that I won't get caught. But it may also be rational for me to help a stranger, if I happen to have the welfare of others as my end.
    When we contrast the reasonable with the rational, the notion of the reasonable goes beyond instrumental rationality. It may be rational for me to steal from you, but unreasonable for me to do so. Why not? Well, that is quite a question. One answer is based on the idea that the reasonable is, in some way, connected to what could be justified to others. Another idea is that the reasonable is in some way specified by that to which others would consent.
    So as we are thinking about the "reasonable person," it is important to distinguish her from her cousin, the "rational person." The rational person may or may not take the interests of others into account. To be a reasonable person, however, is to consider the interests or viewpoints of others--to give them their proper due.
    Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"? How much is enough? How much is too much? So far, we have only the general concept of the reasonable person. In order to make use of the "reasonable person" in the law, we need a particular conception of the "reasonable person"--a set of standards or criteria that will enable us to sort the reasonable actions from the unreasonable ones.
    Subjective and Objective Reasonableness One more preliminary distinction--much is made of the difference between subjective and objective reasonableness. For example, we might, for example, distinguish between the "reasonable person" and the "reasonable intoxicated person" or the "reasonable person with a developmental disability" or the "reasonable person with a hot temper." Usually, we call the reasonable-person standard an objective standard, signifying that the we are not taking the particular characteristics of defendants in tort or criminal actions into account when we ask whether they met the relevant standard of care. Some critics of the reasonable person standard argue that its "objectivity" is a mask for a bias that favors some groups over others. On this, see Mayo Moran's forthcoming book Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard.
    Learned Hand and the Reasonable Person as Cost-Benefit Analyst The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous Carroll Towing case.
      [T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.
    United States v. Carroll Towing Co., 159 F.2d 169, 173, reh'g denied, 160 F.2d 482 (2d Cir.1947); see also The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.).
    The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency, and specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.)
    Even if the Learned Hand formula is best interpreted as employing cost-benefit analysis or the economic idea of efficiency, it does not directly follow that the purpose of the law of negligence is itself to promote the most cost-beneficial consequences. It might be, for example, that a strict liability regime (rather than a negligence regime) will produce the best consequences. There are two different questions regarding the relationship between cost-benefit analysis and the reasonable person. (1) Does the reasonable person standard employ cost-benefit analysis as the criterion for negligence?, and (2) Does cost-benefit analysis support the choice of negligence (as opposed to strict liability or no liability) as the rule governing nonintentional torts? Once the questions are separated, it is clear that they are different. It might be that the law employs a cost-benefit (Learned Hand) test as the standard of care in negligence cases, but that this approach itself is not the best when judged by cost-benefit analysis.
    Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others Although many scholars interpret the Learned Hand formula as an endorsement of an economic approach to the reasonable person, others reject this move. The Hand formula can also be interpreted as reflecting an argument of principle (or fairness). At a very high level of generality, we might say that the reasonable person treats others with respect. This approach to the reasonable person is roughly correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative. The reasonable person, we might say, acts so that the maxim of her action (the principle upon which she acts) could be willed as a universal law--or to be put it differently, the reasonable person treats others as ends-in-themselves and not only as means. In this vein, Ronald Dworkin has argued that the Learned Hand formula can be understood as reflecting the moral equality of persons.
    Virtue Jurisprudence and the Aretaic Conception of the Reasonable Person Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in particular from the idea that the focal standard for morality is the "virtuous agent," i.e. the person who posseses the moral and intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose.
    And the winner is . . . As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then?
    Conclusion If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory.
    • Heidi Li Feldman, Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law, 74 Chi.-Kent L. Rev. 1431 (2000).
    • Stephen Gilles, On Determining Negligence: Hand Formula Balancing, the Reasonable Person Standard, and the Jury, 54 Vand. L. Rev. 813 (2001).
    • Kyron Huigens, Virtue and Criminal Negligence, 1 Buff. Crim. L. Rev. 431, 447-58 (1998).
    • Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. Rev. 249 (1996).
    • Gregory C. Keating, Pressing Precaution Beyond the Point of Cost-Justification, 56 Vand. L. Rev. 653 (2003).
    • Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311 (1996).
    • Stephen Perry, Cost Benefit Analysis and the Negligence Standard, 54 Vanderbilt L. Rev. 893 (2001).
    • Richard Posner, Economic Analysis of Law (6th ed. 2002).
    • John Rawls, Political Liberalism (Paperback ed. 1995).
    • Steven Shavell, Economic Analysis of Accident Law, (December 2002). Harvard Law and Economics Discussion Paper No. 396.
    • W.M. Sibley, The Rational and the Reasonable, 62 Phil. Rev. 554 (1953).
    • Kenneth W. Simons, Dimensions of Negligence in Criminal and Tort Law, 3 Theoretical Inquiries in Law 283 (2002).
    • Kenneth W. Simons, The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values, 54 Vanderbilt L. Rev. 901 (2001).
    • Kenneth W. Simons, Negligence, 16 Social Philosophy and Policy 52 (1999).
    • Kenneth W. Simons, Deontology, Negligence, Tort, and Crime, 76 Boston U. L. Rev. 273 (1996).
    • Richard W. Wright, The Standards of Care in Negligence Law, in Philosophical Foundations of Tort Law 249 (David G. Owen ed., 1995).

Saturday, September 17, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends America's Constitution: A Biography by Akhil Amra.
    In America’s Constitution, one of this era’s most accomplished constitutional law scholars, Akhil Reed Amar, gives the first comprehensive account of one of the world’s great political texts. Incisive, entertaining, and occasionally controversial, this “biography” of America’s framing document explains not only what the Constitution says but also why the Constitution says it. We all know this much: the Constitution is neither immutable nor perfect. Amar shows us how the story of this one relatively compact document reflects the story of America more generally. (For example, much of the Constitution, including the glorious-sounding “We the People,” was lifted from existing American legal texts, including early state constitutions.) In short, the Constitution was as much a product of its environment as it was a product of its individual creators’ inspired genius. Despite the Constitution’s flaws, its role in guiding our republic has been nothing short of amazing. Skillfully placing the document in the context of late-eighteenth-century American politics, America’s Constitution explains, for instance, whether there is anything in the Constitution that is unamendable; the reason America adopted an electoral college; why a president must be at least thirty-five years old; and why–for now, at least–only those citizens who were born under the American flag can become president. From his unique perspective, Amar also gives us unconventional wisdom about the Constitution and its significance throughout the nation’s history. For one thing, we see that the Constitution has been far more democratic than is conventionally understood. Even though the document was drafted by white landholders, a remarkably large number of citizens (by the standards of 1787) were allowed to vote up or down on it, and the document’s later amendments eventually extended the vote to virtually all Americans. We also learn that the Founders’ Constitution was far more slavocratic than many would acknowledge: the “three fifths” clause gave the South extra political clout for every slave it owned or acquired. As a result, slaveholding Virginians held the presidency all but four of the Republic’s first thirty-six years, and proslavery forces eventually came to dominate much of the federal government prior to Lincoln’s election. Ambitious, even-handed, eminently accessible, and often surprising, America’s Constitution is an indispensable work, bound to become a standard reference for any student of history and all citizens of the United States.

Download of the Week The Dowload of the Week is Originalism and the Sense-Reference Distinction by Chris Green (Notre Dame). Here is the abstract:
    I deploy the sense-reference distinction and its kin from the philosophy of language to answer the question what in constitutional interpretation should, and should not, be able to change after founders adopt a constitutional provision. I suggest that a constitutional expression's reference, but not its sense, can change. Interpreters should thus give founders' assessments of reference only Skidmore-level deference. From this position, I criticize the theories of constitutional interpretation offered by Raoul Berger, Jed Rubenfeld, and Richard Fallon, and apply the theory to whether the Fourteenth Amendment forbids racial segregation in public schools.
Download it while its hot!

Saturday Calendar
    Saint Louis University Health Law Scholars Workshop: Adam J. Kolber, University of San Diego School of Law, "Freedom of Memory"

Friday, September 16, 2005
AALS Meeting to Move from New Orleans The Association of American Law Schools has announced that the annual meeting will move from New Orleans:
    Ever since the tragedy inflicted on the Gulf Coast by Hurricane Katrina, AALS has been committed to doing all it can to help the New Orleans' law schools, their faculty, students, staff, and the citizens of New Orleans in their efforts to recover. Part of that commitment has involved a decision not to move the Annual Meeting without having a reasonably high degree of certainty that the meeting could not be held in New Orleans. Unfortunately, despite the somewhat more encouraging recent news about the possible pace of recovery, our New Orleans hotels have indicated to us that , for a variety of reasons, they don't expect to be able to host our meeting and that we should therefore move the meeting. AALS has been investigating other possibilities for the 2006 Annual Meeting for more than two weeks and we are now involved in the reasonably late stages of negotiation for an alternative city. As I'm sure you can imagine, our options at this late date are limited; nevertheless, we hope to be able to announce a decision within a week. Our negotiations are designed to produce the best possible hotel rates, and costs to the AALS, in a city that can offer the usual options for restaurants and other attractions available in an Annual Meeting city.
Thanks to Paul Caron for the heads up!

The Prospects of a Nuclear Showdown Over the Next Supreme Court Nominee Election-law superblogger Rick Hasen has a very interesting post on the question whether the next nominee for the Supreme Court--the replacement for Justice O'Connor--will provoke a "nuclear showdown." By "nuclear showdown", Rick means a filibuster by Senate Democrats that provokes the so-called "nuclear option," i.e. the use of a parliamentary maneuver to amend the Senate Rules and amend the cloture rules for judicial nominations. Here is a taste from his post, A Coming Nuclear Showdown in the Senate?::
    Today's Roll Call, for example, features Brownback Outlines Terms for Next Pick (paid subscription required), which begins: "Sen. Sam Brownback (R-Kan.) said Wednesday that he would like the next Supreme Court nominee to have a detailed track record opposing the Roe v. Wade decision, as opposed to the relatively limited record on abortion issues held by Judge John Roberts."
And Rick concludes:
    If conservatives won't go along with a Roberts II, all bets are off, and we will come much closer to nuclear showdown in the Senate. And if the President decides that the best way to improve his low poll numbers is to appeal to his base, then that would be a reason for the President to trigger, not avoid, nuclear showdown.
What does Senatator Brownback's statement really signify? One possibility is that it is merely "cheap talk." That is, Brownback might be talking to his political allies and supporters--letting them know that he is "on their side," but not really threatening to vote against Roberts-type nominee whose vote on abortion cannot be reliably predicted.
Another interesting question raised by Hasen's post is, "What would happen if the President did nominate someone whose position on abortion made it seem highly likely that the nominee would vote to overule Roe v. Wade?" That's a complicated question, but I would like to offer several observations:
  • First, the O'Connor vacancy is not "crucial" on the question whether Roe will survive. That's because the current Court includes 5 other votes to preserve Roe as it was modified in Casey.

  • Second, the O'Connor vacancy is different from the Rehnquist vacancy in another important respect. Rehnquist was one of the three most conservative justices on the Court. Given this fact, President Bush would have had to appoint someone like Justice Thomas to move the Court to the right with the replacement for Rehnquist. Instead, he appointed John Roberts, who may in fact move the court to the left--read Kenneth Manning's paper, "How Right Is He? A Quantitative Analysis of the Ideology of Judge John G. Roberts to see why this might be the case. O'Connor, however, was close to the center of the Court--evidenced by the fact that she was the "swing" or fifth vote on a variety of issues. That means her replacement will make the difference on a variety of issues, including for example a variety of "New Federalism" issues concerning the powers of the federal government.

  • Third, because O'Connor is at the center of the Court, replacing her with someone who appears to be even more conservative than Roberts would change the politics of the confirmation process. Given that Roberts's confirmation would not not change the ideological balance of the court (it might even move things slightly to the left), the Democrats had no real reason to attempt to filibuster Roberts. Democrats votes against Roberts will be "cheap votes;" they will signal opposition to Roberts to the Democratic base, but such votes don't change anything. Only a filibuster could actually block Roberts's confirmation, but Democrats have no reason to filibuster a nomination that actually improves the court from their point of view. But replacing O'Connor with someone to the right of Justice Roberts would move the balance of the Court to the right. Democrats would certainly be more willing to filibuster in these circumstances, but it is far from clear that moving Roberts to the center position of the court ideologically really represents a substantial change in the balance of power on the Court--as compared to what will be the status quo, the new nine person court with O'Connor to be replaced by the next nominee.

  • Fourth, in this regard, it is important to remember the end game that would be triggered by a Democratic filibuster. The Senate Majority Leadership would surely consider deploying the "nuclear option." The nuclear option will succeed if the 51 Senators (including the Vice President) will vote for it. To cut to the chase, it all boils down to one Senator--the Senator who would provide the key 51st vote to go nuclear and bust the filibuster. Let's call that Senator the nuclear pivot, because that Senator would provide the pivotal vote on the nuclear option. The real question is whether the nuclear pivot would be willing to tolerate a filibuster of a nominee whose record on Roe was clear and who was generally to the right of John Roberts?

  • Fifth, when we answer that question--what would the nuclear pivot do--we need to remember that the nuclear pivot will be aware of the fact that a failure to go nuclear would have political costs and benefits. Surely, voting against the nuclear option would hurt that Republican Senator with the Republican base. It would also force the President to submit another nominee. Presumably that nominee would be someone in the mode of John Roberts, but putting another Roberts on the Court would not actually move the Court very far to the left--because it would not provide crucial votes on very many issues. And it is far from clear that the nuclear pivot would want the Court to move to the left--after all, the nuclear pivot is a Republican.

  • Sixth, of course, when the Democrats decide whether to filibuster, they will be aware of all of the above. If the Republcans go nuclear and the Senate rules are changed, then the Senate Democrats will have lost power. They will never be able to threaten a filibuster on a judicial nominee again. And the successful use of the nuclear option in this instance will surely weaken filibuster threats in other contexts--because the Republicans will already have "crossed the nuclear Rubicon."
So what will happen? I don't have a crystal ball, but I do know this. If President Bush were to nominate someone with a clear record that signalled willingness to overrule Roe v. Wade, the key player will be the nuclear pivot--the Senator who would provide the key 51st vote to go nuclear. That Senator will know that if she or he sides with the leadership, the vote count on Roe will be no worse than 5-4 in favor of affirming it. If the nuclear pivot defects and sides with the Democrats, the Court will remain as it is now, 6-3 (or possibly 7-2 if Roberts sticks to Casey) to affirm Roe. The nuclear pivot will also know that a vote against the President and the leadership will have political costs and benefits, alienating the Republican base but perhaps pleasing moderate voters.
One more thing: The President and his advisors will be thinking about all of this when they decide who to nominate. If they are convinced that nominating a sure vote to overrule Roe would trigger a successful filibuster and a failed nuclear option, it seems likely that they won't want to incur the costs associated with that scenario. If they believe that a filibuster would be broken and hence won't be seriously attempted, then such an appointment becomes at least feasible. The President (and everyone else) will be reading the tea leaves about this and other scenarios before he decides who to nominate!
David Law and I have written a paper that analyzes the role of the nuclear pivot in the judicial confirmation process: Pivotal Politics, Appointments Gridlock, and the Nuclear Option (click on the title to go the download page). We would welcome your comments!

Friday Calendar
    Georgetown International Human Rights Colloquium: Fernando R. Tesón , Florida State University School of Law, "Global Justice, Socioeconomic Rights, and Trade"
    UCLA Law: Orin Kerr, George Washington School of Law, "Searches and Seizures in a Digital World"
      8:30 a.m. Welcome, Mark A. Sargent, Dean, School of Law 8:45-10:00 PANEL I: MURRAY AND CHRISTIAN SOCIAL ETHICS IN AMERICA
        Michael J. Baxter, C.S.C., Should the Catholic Worker Ever Go to Court? Notes By an Anarchist on Murray's Conception of the Law, Politics, the State and Religious Freedom Thomas Berg, Natural Law and Christian Realism: John Courtney Murray and Reinhold Niebuhr Comments, Patrick McKinley Brennan
        Robert J. Araujo, S.J., The Role of International Law in United States Constitutional Law: A Question That Might be Proposed by John Courtney Murray – Is It Really Law? Richard W. Garnett, John Courtney Murray on the “Freedom of the Church” Susan Stabile, Murray and the Abortion Debate Comments: Kathleen Brady & Mark A. Sargent
        The Honorable John T. Noonan, Jr.
        William Gould, John Courtney Murray, the Liberal Tradition and American Democracy: Can American Catholics Serve as a Creative Minority in the 21st Century? Kenneth Grasso, The “Fundamental Ambiguity” of Modern Times: John Courtney Murray on Catholicism, Modernity and the American Proposition. Comments: Jeanne Heffernan

Thursday, September 15, 2005
Charles Lane on Roberts Charles Lane has a way-above-averge analysis of Roberts in a story entitled A Conservative, Yes, but Not a Scalia. Here is taste:
    As an eclectic legal thinker who can easily play at the same intellectual level as Scalia and Thomas, yet without employing the sharp rhetoric that Scalia especially is known to aim at colleagues, Roberts could exert a strong pull on the other justices -- particularly Anthony M. Kennedy, who, after Sandra Day O'Connor retires, probably will be left as the court's sole center-right swing voter. Randy E. Barnett, a professor of law at Boston University and a leading thinker in conservative academic circles, likened Roberts to justices such as Felix Frankfurter and Robert H. Jackson, moderate conservatives appointed by President Franklin D. Roosevelt who "deferred to Congress, the executive and to legal precedent -- in some unspecified mix."

Caron & Hoffman on Law School Hiring Check out Law Faculty Hiring: Pedigree or Performance? by Paul Caron and Entry Level Hiring and Moneyball by David Hoffman.

Welcome to the Blogosphere . . . . . . to Brett Frischmann (Loyola, Chicago) who has joined Mike Madison at

Thursday Calendar

Steinman on the Class Action Fairness Act Adam Steinman (Cincinnati) has posted Sausage-Making, Pigs' Ears, and Congressional Expansions of Federal Jurisdiction: Exxon Mobil v. Allapattah and its Lessons for the Class Action Fairness Act on SSRN. Here is the abstract:
    The first half of 2005 witnessed two watershed developments in federal jurisdiction: the Class Action Fairness Act (CAFA), which created a new source of federal jurisdiction for certain class actions, and Exxon Mobil Corp. v. Allapattah Services, Inc., which resolved an aspect of 28 U.S.C. 1367 (supplemental jurisdiction) that had deeply divided both the judiciary and academia. CAFA and 1367 pose the same fundamental question: how should courts interpret a statute whose literal text would expand federal jurisdiction far beyond what Congress apparently intended? While 1367's legislative history suggested an intent to legislatively overturn a single Supreme Court decision issued one year earlier, the text of the statute appeared to cast aside a number of well-established precedents that had limited the extent of federal jurisdiction over claims by new plaintiffs in diversity cases. Similarly, CAFA's legislative history indicated that Congress meant to expand federal jurisdiction only to certain large class actions with interstate dimensions, but the unambiguous text of CAFA authorizes removal of virtually every state court class action to federal court. Since CAFA and 1367 raise similar interpretive problems, this article examines Allapattah to divine its lessons for interpreting CAFA. I conclude, however, that the Court sent mixed messages. The Court's language imparted an unmistakable endorsement of textualism - jurisdictional statutes should be read no more narrowly or broadly than the text provides. But the Court's ultimate conclusion confirmed that it is willing to compromise strict fidelity to the text in order to avoid expanding jurisdiction far beyond what Congress apparently intended. If courts heed Allapattah's words, they will apply CAFA's literal text and conclude that nearly all class actions filed in state court are subject to removal. But if courts heed Allapattah's actions, they will adopt a middle ground interpretation: CAFA would eliminate certain requirements that had impeded the removal of class actions in the past, but it would not create an independent basis for removing all state court class actions; rather, a basis for removal must exist elsewhere in federal law.

Wednesday, September 14, 2005
Wright on Competition for Distribution Joshua D. Wright (George Mason) has posted Antitrust Law and Competition for Distribution on SSRN. Here is the abstract:
    The most incoherent and unsettled area of antitrust law is the regulation of the competitive process for product distribution and promotion. Competition for distribution involves vertical contracting with respect to product placement, promotional activity, or the decision to carry a particular product. This process includes controversial practices recently subject to intense scrutiny such as slotting allowances, loyalty discounts, bundled rebates, category management and exclusive dealing. Antitrust law has designed rules for each of these practices independently, ignoring the economic relationships between these business practices. This paper examines those relationships by focusing on the economics of competition for distribution. Viewing these practices as part of the competitive process for distribution exposes an antitrust policy that systematically mishandles the regulation of these contracts and suggests safe harbors for a subset of distribution contracts.

Wednesday Calendar

Tuesday, September 13, 2005
Live Roberts Hearings Blogging . . . . . . by Tom Goldstein on Scotus Blog.

Does John Roberts Have a Judicial Philosophy
    Introduction During the John Roberts's confirmation hearings this morning, there was a very interesting exchange between Senator Orin Hatch and Judge Roberts concerning the content of Roberts's "judicial philosophy." Hatch introduced the topic by referring to Cass Sunstein's book Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America (also this week's recommendation by the Legal Theory Bookworm). After mentioning that he had read Sunstein's book over the weekend Hatch used Sunstein's typology, which divides judges into "fundamentalists," "minimalists," "perfectionists," and "majoritarians." Hatch added "originalist" to the list. Roberts began by noting that he had not read Sunstein's book, explaining that it is hard to keep up with Sunstein who writes "a book a week." Then Judge Roberts explained that he does not have an overall judicial philosophy of the types identified by Sunstein. Hatch replied by suggesting that Roberts approach was eclectic, and Roberts replied by suggesting that he takes one case at a time with a focus on the facts of each case--characterizing his approach as "bottom up" rather than "top down." Roberts emphasized his belief that a thorough understanding of the facts is key to good judging.
    Is It the Case that Every Judge Must Have an Overall Judicial Philosophy A good deal of ink has been spilled on the question whether John Roberts has a judicial philosophy (or will inevitably develop one). One common position is that Roberts must be dissimulating (or enaged in self deception). All judges have judicial philosophies--so the argument goes--and so John Roberts must have one.
    Of course, the question whether judges must have a judicial philosophy is vague. On the one hand, a "judicial philosophy" might simply be a judge's beliefs and attitudes about the process of judging--whether systematic or not. In that sense, all competent judges must have some judicial philosophy--since the process of judging requires substantial reflection.
    On the other hand, "judicial philosophy" might have a much more particular meaning. By "judicial philosophy" we might mean a "decision procedure for judging"--a method, recipe, or algorithm for judging. For example, a fully articulated theory of originalism might be considered a "decision procedure" for constitutional interpretation: Interpret the constitution so that the meaning accords with the public meaning as it would have been understood at the time when the relevant provision of the Constitution was adopted. Must every judge have a "decision procedure for judging"?
    Decision Procedures for Judging--and the Alternatives I get the sense that many legal theorists (and others) believe that every judge has--implicitly or explicitly--some decision procedure for judging. Of course, such decision procedures could vary in form and content. Thus, some judges might be relatively formalist--deciding the cases before them on the basis of preexisting rules the content of which is determined by further rules. But one can imagine a decision procedure in which rules play a minimal role. For example, one can imagine a consequentialist procedure for judging--decide each case so as to produce the best consequences (e.g. so as to maximize utility). Must a judge have a "judicial philosophy" in this sense--the sense of a decision procedure for judging?
    I would like to suggest that the enterprise of judging can (even should) proceed without a "judicial philosophy" in that sense. This question is, of course, related to a similar question in moral philosophy--whether there is a decision procedure for ethics. In fact, the two questions are quite similar. In ethics, as in law, there are decision procedures that are rule focused--deontological moral theories. In ethics, as in law, there are decision procedures that are consequence focused--utilitarian and welfarist moral theories. But the question whether there is a decision procedure for ethics is a controversial one. Some moral theorists aruge that there is no correct "decision procedure for ethics"--"virtue ethics" and "moral particularism" are among the labels used to describe theories that affirm this view.
    Legal Particularism So is it possible to be a "legal particularist"? Can one believe in the priority of the particular, or in legal paralence, the "primacy of facts"? I've argued for one version of this thesis in Virtue Jurisprudence: A Virtue-Centered Theory of Judging. Judge Roberts testimony today might be interpreted as affirming a form of "legal particularism"--and he also suggested that in general it is academics and not judges who affirm systematic decision procedures for judging.
    The core argument for moral particularism was first articulated by Aristotle, who famously argued that the complexity of the world outruns the capacity of a theory to prescribe correct action in all circumstances. (A good secondary source on this is "Ethics as an inexact science: Aristotle and the ambitions of moral theory," in Moral Particularism, ed. B.W. Hooker and M. Little (Oxford UP, 2000)). There can be no code or calculus that consistently yields the correct result in each and every possible case.
    Law and morality are both practical normative enterprises. As it is with morality, so it is with law--no decision procedure gives the complexity of law and life. Of course, this leads to further questions. What role do legal rules have for fact-driven judging? How does Judge Roberts reconcile his "umpiral" view of judging with his affirmation of legal particularism? What role do the "rules laid down" play for a judge who believes that judging must begin with the facts?
    These are important questions, and the answers to these questions would, in an important sense, form an important component of Judge Roberts's "judicial philosophy." And this brings us round to the our starting point. When we say that Judge Roberts must have a "judicial philosophy," I am inclined to say that's right--so long as we do not understand the phrase "judicial philosophy" to refer to a decision procedure for judging.

Welcome to the Blogosphere . . . . . . to ImmigrationProf Blog edited by Jennifer Chacón (UC-Davis), Bill O. Hing (UC-Davis), and Kevin R. Johnson (UC-Davis).

Book Announcement: Ignatieff on Ethics in an Age of Terror
    The Lesser Evil Political Ethics in an Age of Terror Michael Ignatieff To read the entire book description or a sample chapter, please visit: Must we fight terrorism with terror, match assassination with assassination, and torture with torture? Must we sacrifice civil liberty to protect public safety? In the age of terrorism, the temptations of ruthlessness can be overwhelming. But we are pulled in the other direction too by the anxiety that a violent response to violence makes us morally indistinguishable from our enemies. There is perhaps no greater political challenge today than trying to win the war against terror without losing our democratic souls. Michael Ignatieff confronts this challenge head-on, with the combination of hard-headed idealism, historical sensitivity, and political judgment that has made him one of the most influential voices in international affairs today. Paper | $16.95 | ISBN: 0-691-12393-4 Cloth | 2004 | $29.95 | ISBN: 0-691-11751-9 For sale only in the United States, its Territories and Dependencies

Tuesday Calendar

Green on the Sense-Reference Distinction & Originalism Chris Green (Notre Dame) has Originalism and the Sense-Reference Distinction on SSRN. Here is the abstract:
    I deploy the sense-reference distinction and its kin from the philosophy of language to answer the question what in constitutional interpretation should, and should not, be able to change after founders adopt a constitutional provision. I suggest that a constitutional expression's reference, but not its sense, can change. Interpreters should thus give founders' assessments of reference only Skidmore-level deference. From this position, I criticize the theories of constitutional interpretation offered by Raoul Berger, Jed Rubenfeld, and Richard Fallon, and apply the theory to whether the Fourteenth Amendment forbids racial segregation in public schools.

Monday, September 12, 2005
Welcome to the Blogosphere . . . . . . to Linda Beale's ataxingmatter. Check out Katrina's Tax Lesson.

Roberts Effect on the Supreme Court
    Introduction With John Robert's confirmation hearings underway, I would like to revisit the question: "What effect will the Robert's nomination have on the decisions of the Supreme Court?" The conventional wisdom is that John Roberts is very conservative--albeit somewhat stealthy, and that his addition will move the Court to the right. In this post, I would like to suggest two different reactions to the conventional wisdom. First, I believe that the most immediate effect of Roberts nomination may well be to move the Court to left in an important category of cases, while maintaining the status quo on most other issues. Second, I believe that Roberts could indeed move the Court--neither left nor right--but in the direction of a more restrained understanding of judicial power. Let's take a look at each of these two points.
    Roberts and the Ideological Balance of the Court Much of the popular discussion of the Supreme Court implicitly relies on the attitudinal model of Supreme Court decisionmaking--that is, that judges occupy a position in ideological space and that there votes in cases directly reflect their politics. John Roberts has been circumspect in his public pronouncements on the hot button issues and almost silent on systematic judicial philosophy. But despite his stealthiness, almost everyone guesses that Roberts is quite conservative in two senses. First, the conventional wisdom is that Roberts is politically very conservative--after all, he has served in conservative administrations and surely has been vetted on that question by the President's advisors. Second, the conventional wisdom is that Roberts has a "conservative" judicial philosophy--that he is influenced by originalism and opposes "judicial activism."
    The conventional wisdom is likely to be mostly correct, but there are at least two qualifications of the conventional wisdom that are crucially important. First, Roberts’s effect on the court is determined by two factors--his own dispositions and who he is replacing. And Roberts in replacing Rehnquist, not O'Connor. Chief Justice Rehnquist was already one of the most conservative judges in the modern history of the Court--there simply isn't much room in ideological space to his right. Moreover, on those issues were Rehnquist appeared to moderate his views, there is some reason to believe that Rehnquist was acting on the basis of tactical or strategic motives--moving slightly to the left in order to move the court's decision to the right. Because Roberts replaces Rehnquist, his confirmation cannot move the ideological balance very far to the right in the short run.
    There is another point to make about the fact that Roberts is replacing Rehnquist. Rehnquist is not a "swing vote" on very many issues. In a sense, Justice's only make a "difference" when they occupy the median (swing or pivotal) position on particular issue. On many issues, Rehnquist was the third most conservative justice, and his replacement by Roberts will not affect outcomes on those issues--assuming that Roberts is as conservative (or more conservative) than Rehnquist.
    There is, however, one area in which Roberts could potentially shift the balance of the Court--to the left! Rehnquist was one of five votes for what is sometimes called "The New Federalism." For example, in United States v. Lopez and United States v. Morrison, Rehnquist wrote the Opinions of the Court that struck down federal statutes on the ground that these statutes went beyond Congress's powers under the commerce clause of the Constitution. And how will Roberts vote in federalism cases? The real answer is that we don't know.
    There are, however, reasons to suspect that Roberts may be more liberal than was Chief Justice Rehnquist on federalism issues. Kenneth Manning of the University of Massachusetts has written a very interesting paper that evaluates all of Roberts votes on the Court of Appeals on the basis of their ideological valence: How Right Is He? A Quantitative Analysis of the Ideology of Judge John G. Roberts (downloadable PDF file). Here is the abstract of Manning's paper:
      When President George W. Bush nominated Judge John G. Roberts, Jr. to replace retiring Justice Sandra Day O’Connor in the summer of 2005, court followers immediately began an investigation of Judge Roberts’ career as a means of discerning his relative ideology. These reports, however, have not been comprehensive in scope, nor do they provide a basis for comparative analysis. I textually analyzed and coded the 190 published and unpublished cases that have been identified as the sum total of the decisions in which Roberts participated while on the D.C. Court of Appeals, and compare Judge Roberts’ decision-making to averages for the U.S. Court of Appeals. I find that Roberts is very conservative in his decision making in criminal justice disputes, and the data suggest that he is exceptionally conservative in civil liberties and rights cases (though the limited numbers of cases in this area restrict the ability to draw any firm conclusions). In labor and economic disputes, however, Judge Roberts has been more liberal than the appellate court average. (emphasis added)
    This last category--which measures whether a judge sides with regulators or business--gives us a clue about Judge Robert's level of deference to federal regulations--which appears to be high! Although the data is scanty, it suggests that John Roberts may actually be to move the court to the left. Another way of putting it this: because Rehnquist was very conservative, if Roberts is to his left in any significant dimension, the short term effect of Roberts's appointment is likely to be to shift the court to the left.
    Long Term Effects of a Roberts Confirmation But Roberts’s appointment may effect more than the immediate ideological balance of the Court. My impression--based on media reports and conversations with several people who have worked directly with Roberts--is that he is both very smart and interpersonally effective. These characteristics suggest that Roberts might have an effect on the Court that will transcend his single vote--both in the way that he influences his fellow justices and through his power of assigning opinions. I am hardly a close student of the internal politics of the Supreme Court, and those politics undoubtedly vary with the makeup and chemistry of the nine particular individuals who occupy the role of Justice. Nonetheless, my reading of the history of the Court is that one or two individuals can sometimes affect the Court in important ways. From Justice John Marshall to Justice Brennan, the history of the Supreme Court seems to suggest that leadership can make a real difference.
    Caveats and Uncertainty Of course, predicting the future is fraught with peril. John Roberts has never been a Supreme Court Justice. There is no upward move from Chief Justice of the Supreme Court. Although the votes of Supreme Court Justices are broadly constrained by other political and legal forces, Roberts will have a degree of freedom that is very different from the freedom he had as a Court of Appeals judge. Certainly, he will not face the same constraints that he did as a lawyer with clients to serve.
    Perhaps, in the end the conventional wisdom about John Roberts will be confirmed by experience. Then again, perhaps not.

Monday Calendar
    Hofstra Law: Aaron Twerski, Hofstra University School of Law, “Uncertainty and Informed Choice: Unmasking Daubert”

A Message from Dan Hunter on Open Access to Scholarship
    This message is about open access archiving for your scholarly articles and papers. “Open access archiving” means that the review/journal which publishes your work also allows authors to make the published work freely available on the public internet, permitting users to read, download, copy, distribute, print, search, or link to the full texts of these articles. Open access archiving is a tremendously significant development in scholarly publishing because it disseminates the fruits of your scholarship to the entire world, for no cost. This means a greater audience and greater impact for your work, and an opportunity for you to influence policy and scholarship in locations and arenas where your printed work is never going to reach. Through Creative Commons, Larry Lessig (Stanford Law School), Michael Carroll (Villanova Law School) and I have been working on a way to encourage law reviews to move towards open access archiving. We have established the “Open Access Law Program” as part of the Science Commons publishing project. The Open Access Law Program provides a number of resources to encourage open access archiving. These resources include a set of Open Access Principles for law reviews (see ) and an Open Access Model Publishing Agreement (see ). The former is a small number of principles that commit the law review to taking the least restrictive license consistent with its needs, a promise to provide an electronic copy of the final version of the article to the author, and a commitment to allow public access to the review's standard publishing contract (in the event that it chooses not to use the Model Agreement). The Principles do not ask the law review to undertake the archiving of articles or change the publication format of the law review: they simply ask the review to allow the archiving of articles by authors. The Model Agreement enshrines these commitments in a neutral contract that is easy for both authors and law reviews to accept. Open access archiving does not change the commercial publication assumptions of journals. Moreover, open access archiving provides a far greater readership and impact for the scholarship published in the journal. It is not rare for open access articles to receive thousands of downloads. Open access archiving is strongly in your interest, and in the interest of the institutions where you work: it provides a greater audience for your scholarship; it expands the reach of the work of student authors and editors who may be at your institution; and it fits within the mission of educational institutions to push back the frontiers of scholarship in law and related fields. I explain this in a recent article called “Walled Gardens”, which is available at if you want further details. I urge you to consider the benefits of open access archiving in law, and recommend a number of steps that you can take. First, you should consider publishing in journals that comply with our Open Access Principles or which generally adopt open access models. For the most committed (and tenured) faculty, we have established an Author Pledge (see ) where the author pledges only to publish in open access journals. At a lower level we encourage authors to negotiate individually with non-OA journals in which they publish, to ensure that they retain copyright and the right to post their work to open access repositories. Recent research demonstrates that authors have higher impact and citation counts when they also place their published work in open access repositories, or otherwise make it freely available on the internet. You should also consider depositing the electronic versions of your work in open access repositories (like the Social Science Research Network or Berkeley Electronic Press). Second, where you work in a law school that publishes law reviews you should encourage your journals to move to open access archiving. Already twenty-one US law reviews have adopted the Open Access Principles, or have policies that are consistent with them. Leading journals such as Animal Law, Harvard Journal of Law & Technology, Indiana Law Journal, Lewis & Clark Law Review, Michigan Law Review, Michigan State Law Review, New York Law School Law Review, Texas Law Review, Vanderbilt Law Review, and Wayne Law Review have signed on, as have all of the journals published by Duke Law School and Villanova Law School. We'd love to add additional law reviews to this list. I've recently written to the deans of all American law schools asking them to consider encouraging their law reviews to move to open access archiving. Would you please express your support of open access to your dean and law reviews. They can contact me to discuss specifics of a move to open access archiving. For those law scholars outside the United States, we have established Open Access Law Programs in a number of countries. We have journals that comply with the Open Access Principles in Canada and the United Kingdom. Please get in touch with me if you are interested in the possibilities of open access for law material in your country. I hope that you agree that this is an important opportunity for you and your institution. If you have any questions please don’t hesitate to contact me. Yours Dan Hunter

Boris Bittker Paul Caron reports that Yale's Boris Bittker--a giant of tax scholarship--has died.

Sunday, September 11, 2005
Legal Theory Calendar
    Monday, September 12
      Hofstra Law: Aaron Twerski, Hofstra University School of Law, “Uncertainty and Informed Choice: Unmasking Daubert”
    Tuesday, September 13 Wednesday, September 14 Thursday, September 15 Friday, September 15
      Georgetown International Human Rights Colloquium: Fernando R. Tesón , Florida State University School of Law, "Global Justice, Socioeconomic Rights, and Trade"
      UCLA Law: Orin Kerr, George Washington School of Law, "Searches and Seizures in a Digital World"
        8:30 a.m. Welcome, Mark A. Sargent, Dean, School of Law 8:45-10:00 PANEL I: MURRAY AND CHRISTIAN SOCIAL ETHICS IN AMERICA
          Michael J. Baxter, C.S.C., Should the Catholic Worker Ever Go to Court? Notes By an Anarchist on Murray's Conception of the Law, Politics, the State and Religious Freedom Thomas Berg, Natural Law and Christian Realism: John Courtney Murray and Reinhold Niebuhr Comments, Patrick McKinley Brennan
          Robert J. Araujo, S.J., The Role of International Law in United States Constitutional Law: A Question That Might be Proposed by John Courtney Murray – Is It Really Law? Richard W. Garnett, John Courtney Murray on the “Freedom of the Church” Susan Stabile, Murray and the Abortion Debate Comments: Kathleen Brady & Mark A. Sargent
          The Honorable John T. Noonan, Jr.
          William Gould, John Courtney Murray, the Liberal Tradition and American Democracy: Can American Catholics Serve as a Creative Minority in the 21st Century? Kenneth Grasso, The “Fundamental Ambiguity” of Modern Times: John Courtney Murray on Catholicism, Modernity and the American Proposition. Comments: Jeanne Heffernan
    Saturday, September 15
      Saint Louis University Health Law Scholars Workshop: Adam J. Kolber, University of San Diego School of Law, "Freedom of Memory".

Legal Theory Lexicon 003: Hypotheticals
    Introduction The hypothetical (or "hypo") is so familiar to anyone who has received a legal education in the United States that you might ask, "Can there possibly be anything of theoretical interest in the hypothetical?" And in the same vein, "We all know what hypos are." The purpose of this post is to reflect on the "hypothetical," with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorous and analytically about hypotheticals, what they are, what they can and can't accomplish, how to construct them, and how to maneuver around them.
    What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from hypotithenai, "to put under."
    In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching.
    Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Ben agreed to pay Alice $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following:
    • What if the agreement had been oral instead of in writing?
    • What if the contract price had been $300?
    • What if Alice had been a minor?
    • What if the contract had not specified a price?
    • What if Alice did the job, but the roof still leaked?
    And so on.
    The Purposes of Hypotheticals Why do law professors use hypotheticals?
    • As a tool for the explication of legal doctrine.
    • As a tool for exploring the moral underpinnings of legal rules.
    • As a tool for exploring the consequences of legal rules.
    Law students quickly become familiar with the first of the three kinds of hypotheticals. They read a case and learn a rule. The professor then poses hypothetical variations on the case to test the student's knowledge of the rule. Typically, the hypo is followed with a question like, "What result?" But legal education is also about the normative analysis of legal doctrine, and hypotheticals can also be used to explore our intuitions about the morality of the law. Such hypos are frequently end with, "What should the result be?" And the follow-up question, "That's the rule, but do you think that is the right result?" Finally, contemporary legal education incorporates a healthy dose of economic analysis. So, we can add information about prices to hypos and then ask what consequences a rule will produce if the various actors are "rational" in the economic sense.
    "Beware the hypothetical, my child. The laws that catch, the facts that bite." Hypos can be fun, but many law students don't have a good time, when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialog is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game.
    Lesson Number One: Fight the hypothetical, lose the war! The first and most important lesson to learn about hypotheticals is that you can't get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the "hypothesis." One way to do this is to fight the facts. "That wouldn't happen." Or "In the real world, it would happen differently." Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, "O.K., but for the sake of argument, assume these facts." At the best, you get another version of the same hypo that works around your factual objection." As a general rule, don't fight the facts.
    Lesson Number Two: Watch for Slippery Slopes Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule." When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon.
    Lesson Number Three: Watch Out for Cold Rules and Hot Facts This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. "Starving babies" are a common device. But should Alice have to pay Ben damages if Alice has a "starving baby!" Of course not, you say to yourself, but in fact whether or not Alice's baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense." Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of "necessity." Obviously, these two strategies can be combined: "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of "necessity" to actions for breach of contract."
    Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:
      Easy cases involve a straightforward application of a legal rule. Most hypos are easy cases. You may make a mistake and learn something about the rule, but there is nothing funny going on here. Easy cases are the bread and butter of legal education.
      Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn't. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided--"novel questions" where not precedent or rule is binding; (2) Rules sometimes have "gaps," places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a "hard case." When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:
        (1) Arguments of fit. You can argue for a rule or result on the grounds that it best fits the legal landscape. Arguments of fit are about consistency or coherence. Frequently, you make arguments of fit based on analogies between the rule in situation A (that is settled) and the rule that should obtain in situation B (where the law is unclear).
        (2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.
        (3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.
      Hard cases are the meat and potatoes of law school.
      Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren't punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as "intuition pumps." That is, the wild case is constructed so as to generate a particular reaction--an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating--they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work--pumping the intuition. When you are questioned about a wild case, you should simply give your reaction--your gut instinct. But it is also fair to qualify your answer: "My answer is yes, but this case is so wild that I really don't feel very sure about my intuitions." Wild cases are the desert of law school.
    There is a lot more to learn about hypotheticals (perhaps in a second installment in the Legal Theory Lexicon, but these four lessons should get you started.

Saturday, September 10, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America by Cass R. Sunstein. Here's the blurb:
    Even with the recent changes in its makeup, most people think the Supreme Court is roughly balanced between left and right. This is a myth. In fact the justices once considered right-wing are now the Court's moderates; those who were once centrists are now the Court's "liberals"; and the liberal element, once represented by Thurgood Marshall and William Brennan, has all but disappeared. Many people also think that judicial activism is the province of liberals. This is also a myth; since William Rehnquist was confirmed as Chief Justice in 1986, the Supreme Court has struck down decisions of Congress more than thirty times-an unprecedented record of judicial activism. Some conservatives want to return to the eighteenth-century Constitution or to restore "the Constitution in Exile," by which they mean the Constitution as it existed before the administration of Franklin Delano Roosevelt. In Radicals in Robes, Cass R. Sunstein explains what this constitutional vision would mean. It would endanger environmental regulations, campaign finance laws, and the right to privacy. It would threaten the Federal Communications Commission, the Securities and Exchange Commission, the Environmental Protection Agency, and many other federal agencies. It might well allow states to establish official religions. It would impose sharp new limits on Congress's authority to protect rights. Radicals in Robes pulls away the veil of rhetoric from a dangerous and radical movement and issues a strong and passionate warning about what some extremists really intend. One of the most respected legal theorists in the country, Sunstein here issues a warning of compelling concern to us all.

Download of the Week The Download of the Week is Copyfraud by Jason Mazzone. Here is the abstract:
    Copyright in a work now lasts for seventy years after the death of the author. Critics contend that this period is too prolonged, it stifles creativity, and it undermines the existence of a robust public domain. Whatever the merits of this critique of copyright law, it overlooks a more pervasive and serious problem: copyfraud. Copyfraud refers to falsely claiming a copyright to a public domain work. Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven piano scores, greeting card versions of Monet's water lilies, and even the U.S. Constitution. Archives claim blanket copyright to everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the "owner's" permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use. Copyfraud also refers to interference with fair uses of copyrighted works. By leveraging the vague fair use standards contained in the Copyright Act and attendant case law, and by threatening litigation, publishers deter legitimate reproduction of copyrighted works, improperly insisting on licenses and payment of fees. Publishers wrongly contend that nobody may reproduce for any reason any portion of a copyrighted work, without the publisher's prior approval. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech. Copyfraud also weakens legitimate intellectual property rights. Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims, and to specify as a statutory matter that copying less than five percent of a single copyrighted work is presumptively fair use. In addition, Congress should enhance more generally protection for the public domain, with the creation of a national registry listing public domain works, a symbol to designate those works, and a federal agency charged with securing and promoting the public domain. Failing a congressional response, there may also exist remedies under state law and through the efforts of private parties.
Download it while its hot!

Friday, September 09, 2005
Friday Calendar

Greenberg on How Facts Make Law Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted How Facts Make Law (Legal Theory, Vol. 10, pp. 157-198, 2004) on SSRN. Here is the abstract:
    I offer a new argument against the legal positivist view that non-normative social facts can themselves determine the content of the law. I argue that the nature of the determination relation in law is rational determination: the contribution of law-determining practices to the content of the law must be based on reasons. That is why it must be possible in principle to explain what makes the law have the content that it does. It follows, I argue, that non-normative facts about statutes, judicial decisions, and other practices cannot themselves determine the content of the law. A full account must appeal to considerations independent of the practices that determine the relevance of the practices to the content of the law. Normative facts are the best candidates.

Guttel & Medina on the Distributive Effects of Criminal Sanctions Ehud Guttel and Barak Medina (Hebrew University of Jerusalem - Felt Center for Legal Studies and Law Faculty, Hebrew University of Jerusalem) have posted Less Crime, More (Vulnerable) Victims: The Distributional Effects of Criminal Sanctions on SSRN. Here is the abstract:
    Harsh sanctions are conventionally assumed to primarily benefit vulnerable targets. Contrary to this perception, this article shows that augmented sanctions serve principally the less vulnerable targets. While decreasing crime, harsher sanctions also induce the police to shift enforcement efforts from more to less vulnerable victims. When this shift is substantial, augmented sanctions exacerbate (rather than reduce) the risk to vulnerable victims. Based on this insight, this article suggests several normative implications concerning the efficacy of enhanced sanctions, the importance of victims’ funds, and the connection between police operation and apprehension rates.

Griffith on Price Discrimination Sean J. Griffith (University of Connecticut - School of Law) has posted The Puzzling Persistence of the Fixed Price Offering: Implicit Price Discrimination in IPOs on SSRN. Here is the abstract:
    This chapter for a book on the regulation of primary securities markets investigates the persistence of the fixed price offering in the United States. Fixed price offerings present a puzzle because economic theory suggests that sellers would maximize returns by offering IPO shares for sale at different prices depending upon characteristics of the buyer or the buyer's order. Contrary to this expectation, however, American companies uniformly sell IPO shares at a single fixed offering price. Moreover, this is true regardless of whether the shares are sold through the traditional book-building process or at auction. This phenomenon is not a function of the legal or regulatory structure governing public offerings in the United States, which neither mandates fixed price offerings nor bars price discrimination in IPOs. Instead, it appears to be a result of the market power of underwriters. A close examination of the offering process reveals a form of implicit price discrimination in which underwriters clearly engage - that is, the selective allocation of shares with resale restrictions. The chapter argues that underwriters favor implicit price discrimination over explicit price discrimination because the benefits of implicit price discrimination redound to the underwriter while explicit price discrimination would benefit issuers and eliminate an important (but hidden) component of underwriter compensation.

McAdams on Entrapment Richard H. McAdams (University of Illinois College of Law) has posted A Tempting State: The Political Economy os Entrapment (U Illinois Law & Economics Research Paper No. LE05-019) on SSRN. Here is the abstract:
    The entrapment defense is the primary regulation of undercover operations. Though courts and commentators say that the state should not punish an undercover defendant who does not offend outside such operations, no existing theory fully justifies this principle or the defense (without calling into question basic commitments of American criminal law): (1) Under retributive theory, the entrapped are blameworthy, given that a defendant who succumbs to the same temptation from a private party is blameworthy. (2) Fairness theories fail to justify the defense, given that existing law refuses to recognize unfairness in particular distributions of criminal temptations or in highly selective law enforcement. (3) Existing institutional theories fail to explain the precise political danger of entrusting officials with the power of undercover operations, given that targets can refuse criminal opportunities. (4) Among other problems, existing economic theories rest on a false dichotomy between true offenders who commit crimes outside of undercover operations and false offenders who don't. The paper reconstructs the latter two theories, overcoming existing weaknesses to fully justify the defense. The institutional theory rests on the high degree of fortuity to an individual’s legal compliance, the state manipulation of which creates a serious risk of political abuse. The economic theory arises from the need to correct a principal-agent problem that motivates police to favor unproductive tactics yielding high numbers of low value arrests (even if the resulting offenders are not "false"). These theories reveal that the normative consensus is misguided; the defense should not be conceived as a way of protecting individual defendants who do not offend outside undercover operations. The two rationales point to the desirability of tailoring a specific entrapment defense to each crime, but the paper also describes the best unitary defense.

Caron Offers Sage Advice to Mothers Paul L. Caron (University of Cincinnati College of Law) has posted Tax Myopia, or Mamas Don't Let Your Babies Grow Up to be Tax Lawyers (Virginia Tax Review, Vol. 13, p. 517, 1994) on SSRN. Here is the abstract:
    Two related myths have a remarkable currency among law students, lawyers and the general public. The first myth is that tax lawyers are somehow different from other lawyers. Part I of this Article documents how this misperception pervades law schools, the legal profession, and the popular culture. Although this Part chronicles the disparagement of tax lawyers in a light-hearted fashion (as suggested by the reference to the Willie Nelson song in the title), the Article focuses on the serious consequences caused by the related second myth that tax law is somehow different from other areas of the law. As suggested by the reference to tax myopia in the title, the Article contends that tax law too often is mistakenly viewed by lawyers, judges, and law professors as a self-contained body of law. Part II of the Article explains how this misperception has impaired the development of tax law by ignoring insights from other areas of law that should inform the tax debate. Similarly, other areas of law have been impoverished by the failure to consider how tax law can enrich their development. The Article advocates a synergistic relationship between tax and nontax law through which each benefits from the insights of the other. Part III of the Article addresses this theme through several fundamental issues concerning the allocation of legislative, executive, and judicial power in our constitutional system. The Article first injects various statutory construction and legislative process theories developed in the nontax area into the debate over whether the complexity of the Internal Revenue Code requires that tax legislative history be treated differently from its nontax counterparts. The Article then considers how recent Supreme Court administrative law decisions and the statutory reenactment doctrine affect the amount of deference that courts should give to the Treasury Department's interpretation of tax statutes. Finally, the Article examines how the empirical and nontax models of the tax litigation system should inform the litigant's choice of the appropriate tax forum, Congress's allocation of tax jurisdiction, and the federal courts' application of state law in tax controversies. Although I offer my views on these issues, the thrust of the Article is its advocacy of a cross-pollination approach, rather than a definitive resolution of these structural concerns that have bedeviled tax and nontax law for decades. By replacing the myopic vision of the tax law with an appreciation of the symbiotic relationship between tax and nontax law, the ultimate resolution of these tax issues will be facilitated by nontax learning, and tax, in turn, will provide a useful laboratory within which to test and refine these nontax principles.

Thursday, September 08, 2005
Book Announcement
    The Flight from Reality in the Human Sciences by Ian Shapiro To read the entire book description or the introduction, please visit: In this captivating yet troubling book, Ian Shapiro offers a searing indictment of many influential practices in the social sciences and humanities today. Perhaps best known for his critique of rational choice theory, Shapiro expands his purview here. In discipline after discipline, he argues, scholars have fallen prey to inward-looking myopia that results from--and perpetuates--a flight from reality. Cloth | $24.95 / £15.95 | ISBN: 0-691-12057-9

Garrett on Harmless Error & Wrongful Conviction Brandon Garrett (Virginia) has posted Innocence, Harmless Error, and Federal Wrongful Conviction Law (Wisconsin Law Review, Vol. 35, 2005) on SSRN. Here is the abstract:
    This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth defeating and concealed evidence of innocence. This Article contends that in a civil case, the harmless error rules that limit remedies for violations of criminal procedure rights do not apply. Further, though not generally recognized as such, the Supreme Court has created internal harmless error rules to accompany each of the relevant fair trial claims: the Brady v. Maryland right to have exculpatory evidence disclosed; the right to effective assistance of counsel; the right to be free from suggestive eyewitness identification procedures; and the right not to be subject to a coerced confession. Civil claims suggest the transformative result that for each right, harmless error insulation is stripped away. This Article concludes by reflecting on how wrongful conviction suits may spearhead wide-ranging reform of our criminal justice system and renew substantive development of the constitutional right to a fair trial.

Call for Papers: Law, Culture, & the Humanities
    ASSOCIATION FOR THE STUDY OF LAW, CULTURE, AND THE HUMANITIES Ninth Annual Conference March 17-18, 2006 Syracuse University, N.Y. Sponsored by: The Syracuse University College of Law; The Sawyer Law and Politics Program at The Maxwell School of Citizenship and Public Affairs, and The Syracuse University College of Arts & Sciences. The Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistically oriented legal scholarship. The Association brings together a wide range of people engaged in scholarship on legal history, legal theory and jurisprudence, law and cultural studies, law and literature, law and the performing arts, and legal hermeneutics. We want to encourage dialogue across and among these fields about issues of interpretation, identity, and values, about authority, obligation, and justice, and about law's place in culture. Examples of the panels offered at previous meetings include: History, Memory and Law; Reading Race; Law and Literature; Human Rights and Cultural Pluralism; Speech, Silence, and the Language of Law; Judgment, Justice, and Law; Beyond Identity; The Idea of Practice in Legal Thought; Metaphor and Meaning; Representing Legality in Film and Mass Media; Anarchy, Liberty and Law; What is Excellence in Interpretation? Ethics, Religion, and Law; Moral Obligation and Legal Life; The Post-Colonial in Literary and Legal Study; Processes and Possibilities in Interdisciplinary Law Teaching We invite scholars with interests across the range of areas in Law, Culture and the Humanities to organize panels, performance pieces, screenings, or to submit proposals for individual paper presentations. We urge those interested in attending to consider submitting complete panels, and we hope to encourage a variety of formats-for example, roundtables or sessions in which commentators respond to a single paper or issue. We invite proposals for sessions in which the focus is on pedagogy or methodology, for author-meets-readers sessions organized around important books in the field, or for sessions in which participants focus on performance (theatrical, filmic, musical, poetic). We also welcome volunteers for chairs and discussants from people who are not submitting proposals, as well as from those who wish to present a paper. We will be accepting papers, panel proposals and volunteers for chairs and discussants from July 1st 2005 until October 15th 2005. All submissions must be made through the ASLCH website ( Participants will be notified of their acceptance by December 31st 2005. We cannot promise that we will be able to accommodate all proposals. ASLCH Organizing Committee: Susan Sage Heinzelman, English/Women and Gender Studies, University of Texas; (President); Paul Schiff Berman, Law, University of Connecticut (Secretary); Naomi Mezey, Law, Georgetown University (Treasurer); Anita Allen-Castelitto, Law, University of Pennsylvania; Jennifer Culbert, Political Science, Johns Hopkins University; Nan Goodman , English, Colorado (Boulder); Nasser Hussain, Law, Jurisprudence, and Social Thought, Amherst College; Pnina Lahav, Law, Boston University; James Martel , Political Science, San Francisco State; Harriet Murav , Russian, University of Illinois, Champagne-Urbana; Austin Sarat , Law, Jurisprudence, and Social Thought, Amherst College (Editor, Law, Culture and Humanities); Adam Thurschwell , Law, Cleveland State; James Boyd White, Law and English, University of Michigan.

Thursday Calendar

Wednesday, September 07, 2005
John E. Cribbet I am very honored that today I will be "invested" as the John E. Cribbet Professor of Law at the University of Illinois. Professor John E. Cribbet is an icon within the College of Law and the larger University of Illinois community. A 1947 graduate of Illinois Law, Cribbet was named a full Professor in Law in 1953. He became the College's seventh Dean in 1967 and in 1979 he left the College to become Chancellor of the flagship Urbana-Champaign campus of the University of Illinois. He returned to the College five years later and was named the Richard W. and Marie L. Corman Professor of Law, a position which he now holds in emeritus status. Cribbet is truly a living legend at the University of Illinois--an amazing scholar, beloved teacher, and revered leader.
I would also like to express my gratitude to Christian "Rick" Heiligenstein, Illnois Law Class of '55, and his wife, Lisolette Heiligenstein, created the John E. Cribbet Professorship in 2004.
And finally, thank you to all my friends in the blogosphere and the legal academy who have sent messages of congratulations.

Truth & Trust Check out Claims of Truth and Webs of Trust. A Hypothetical Debate by Hanno Kaiser on Law & Society Weblog. Here's a taste:
    Ordinary people – myself emphatically included – have no way to determine the truth of all but the most simplistic factual claims, which does not keep anyone from having strong opinions. Let’s take the evolution v. creationism (or “intelligent design”) debate. Suppose that you argue in favor of creationism. I claim in response:
      “The theory of evolution is among the most secure elements in all of human knowledge. It is on par with claims such as: matter is made of atoms, DNA transmits the blueprint of organisms from generation to generation, light is an electromagnetic wave, which, at times, also behaves like a particle, etc. Any form of creationism or intelligent design is hogwash.”
    How do I know that?
Read the whole post!

Robinette on a Unified Theory of Torts Christopher J. Robinette (Widener Univ. School of Law) has posted Can There be a Unified Theory of Torts? A Pluralist Suggestion from History and Doctrine on SSRN. Here is the abstract:
    In the article, Professor Robinette discusses the tendency of tort theorists to attempt to unify all of tort law. In other words, many scholars have sought to explain torts by the use of a single idea. Originally, scholars attempted a unity of doctrine, such as Holmes’ focus on negligence. In the last several decades, scholars have sought to unify torts by rationale. In particular, modern scholars tend to view torts either as a means of deterring injuries or of achieving corrective justice. Professor Robinette argues that both history and doctrine suggest that the attempt to unify all of torts is futile. From a historical perspective, what is now tort law was created on an ad hoc basis as problems developed in communities in medieval England. The law was developed practically to resolve those problems, not to embody any vision of justice. Furthermore, tort law was the common law’s residual area of civil liability, and was not conceived to be a coherent subject matter. Perhaps as a result, concepts from other areas of law have significantly influenced tort doctrines. These imported concepts are based on goals foreign to, and not necessarily consistent with, tort goals. Tort law’s doctrine also appears hostile to unification. In assessing whether doctrine might support a unified theory of torts, Professor Robinette compared two doctrinal areas for consistency. If a unified theory of torts cannot encompass two discrete doctrines of torts, of course it cannot encompass all of torts. A cursory examination of automobile accidents and medical malpractice reveals significant differences of reciprocity of risk, causation and the incursion of doctrines foreign to tort law. Based on the comparison, it appears that each of the three traditional tort goals—deterrence, corrective justice and compensation—may be problematic in one doctrine or the other. Thus, a unified theory of torts is implausible. Based on this conclusion, Professor Robinette argues that scholars should devote their energies to examining the pluralist nature of tort law. In particular, scholars should focus on the contexts of torts. By focusing on the contexts, instead of ignoring them for the sake of cohesion, scholars may be able to determine under what circumstances a particular torts goal should be emphasized.

Harel & Clement on Shame & Deterrence Alon Harel (Hebrew University of Jerusalem - Felt Center for Legal Studies) & Alon Klement (Interdisciplinary Center Herzliyah - Radzyner School of Law) have posted The Economics of Shame: Why More Shaming May Deter Less on SSRN. Here is the abstract:
    This paper investigates the effectiveness of shaming penalties. It establishes that there may be an inverse relation between the rate of shaming penalties and their deterrent effects - the more people are shamed the less deterring shaming penalties become. This conclusion is based on a search model in which the costs of searching for law-abiding partners increase with the rate of shaming, and may lead to lower expected sanction for offenders. The inverse relation between the rate of shaming penalties and their effectiveness is later used to show that increasing the probability of detection, increasing the magnitude of shaming penalties or reducing the number of wrongful acquittals does not necessarily increase the deterrent effects of shaming penalties (and may, in fact, decrease these effects).

Tuesday, September 06, 2005
Request for Assistance with the Legal Theory Calendar--Moved to the Top of the Blog I would greatly appreciate help identifying websites that list speakers, conferences, and workshops for the Legal Theory Calendar. If your law school or other legal theory program has such a website, just email the link to: Thank you!

Tuesday Calendar

Mazzone on Copyfraud Jason Mazzone (Brooklyn) has posted Copyfraud on SSRN. Here is the abstract:
    Copyright in a work now lasts for seventy years after the death of the author. Critics contend that this period is too prolonged, it stifles creativity, and it undermines the existence of a robust public domain. Whatever the merits of this critique of copyright law, it overlooks a more pervasive and serious problem: copyfraud. Copyfraud refers to falsely claiming a copyright to a public domain work. Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven piano scores, greeting card versions of Monet's water lilies, and even the U.S. Constitution. Archives claim blanket copyright to everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the "owner's" permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use. Copyfraud also refers to interference with fair uses of copyrighted works. By leveraging the vague fair use standards contained in the Copyright Act and attendant case law, and by threatening litigation, publishers deter legitimate reproduction of copyrighted works, improperly insisting on licenses and payment of fees. Publishers wrongly contend that nobody may reproduce for any reason any portion of a copyrighted work, without the publisher's prior approval. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech. Copyfraud also weakens legitimate intellectual property rights. Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims, and to specify as a statutory matter that copying less than five percent of a single copyrighted work is presumptively fair use. In addition, Congress should enhance more generally protection for the public domain, with the creation of a national registry listing public domain works, a symbol to designate those works, and a federal agency charged with securing and promoting the public domain. Failing a congressional response, there may also exist remedies under state law and through the efforts of private parties.
I'm still reading this very interesting paper. I may have some online reactions later, but for now highly recommended and also controversial!

Klein & Wright on Slotting Arrangments Benjamin Klein (UCLA Economics) & Joshua Wright (George Mason Law) have posted The Economics of Slotting Arrangements on SSRN. Here is the abstract:
    Slotting arrangements, payments made by manufacturers to retailers for shelf space, have become increasingly prevalent in grocery retailing. We demonstrate that these arrangements are a consequence of the normal competitive process when shelf space primarily promotes incremental manufacturer sales rather than shifts sales between retailers. In these circumstances, manufacturers must contract with retailers to supply desired shelf space. When promotional shelf space is more valuable, the shelf space contract is more likely to involve a per unit time payment. In this way, retailers earn a market return on the promotional shelf space they provide to manufacturers, a return that is competed away on other retail price and non-price dimensions. In contrast to alternative theories where slotting is used to anticompetitively exclude rivals or to compensate retailers for assuming the risk of stocking an increased number of new products, our theory explains both the growth and the incidence across products of slotting arrangements in grocery retailing.

Stras & Scott on Life Tenure David Stras (Minnesota) & Ryan Scott (10th Circuit) have posted Retaining Life Tenure: The Case for a Golden Parachute on SSRN. Here is the abstract:
    The first vacancy on the Supreme Court in eleven years has sparked renewed debate about the continued viability of life tenure for federal judges. Scholars have decried life tenure as one of the Framers' worst blunders, pointing to issues such as strategic retirement, longer average tenure, and widespread mental infirmity of justices. In this Article, the authors argue that, notwithstanding the serious problem of mental and physical infirmity on the Court, life tenure should be retained. They also argue that recent statutory proposals to eliminate or undermine life tenure, for example through a mandatory retirement age or term limits, are unconstitutional. Surprisingly, scholars have failed to take a multidisciplinary approach to the question of life tenure, or to propose alternatives that address its weaknesses without abolishing it. The authors address that gap by adopting an incentives approach to Supreme Court retirement. They first demonstrate that, as an historical and empirical matter, pensions have been the most important factor in influencing the retirement timing of Supreme Court justices and comparable actors over history. Building on that track record, the authors propose that Congress create a golden parachute for Supreme Court justices by doubling their retirement benefits upon reaching an appropriate retirement age or upon certifying a mental or physical disability. They also propose modest institutional reforms that will make the office of senior justice more attractive to justices considering retirement.

Conference Announcement: Behavioral Analysis of Corporate Law at Lewis & Clark
    BEHAVIORAL ANALYSIS OF CORPORATE LAW: INSTRUCTION OR DISTRACTION? ELEVENTH ANNUAL FALL BUSINESS LAW FORUM LEWIS & CLARK LAW SCHOOL FRIDAY, SEPTEMBER 30, 2005 Lewis & Clark Law School will present its annual Business Law Forum featuring nationally-recognized legal scholars engaged in lively debate on corporate governance and regulatory issues. Economic analysis has dominated corporate law for forty years. The application of rational choice theory to matters of corporate law, corporate governance, securities regulation and finance has proved remarkably successful and robust. In recent years, however, proponents of behavioral economics have challenged traditional economic theory and, citing empirical studies, have argued that the rational choice model fails accurately to describe human behavior. Perhaps more importantly, scholars of behavioral economics contend that certain systematic deviations from rational choice’s predictions can be (and have been) identified, suggesting the existence of a better predictive model. Numerous articles, appearing in both legal and economic journals, have applied or challenged the application of behavioral analysis to myriad aspects of corporate governance and its regulation. While the debate continues to rage, it is time to take stock of the state of behavioral analysis of corporate law—has it proved instructive, or is it merely a distraction from the still-reigning traditional paradigm? This topic is of great scholarly interest, and the questions concerning the validity, predictive power and scope of behavioral analysis constitute some of the central disputes in modern corporate law and economics. This topic should also be of significant intellectual interest to the corporate legal community, as the outcomes of these debates will ultimately shape both corporate regulation and its judicial interpretation. The annual Business Law Forum at Lewis & Clark Law School fosters vigorous and engaging discussions about legal issues of vital interest to businesses across the nation and the world. Papers presented at this year’s Forum will be published in Volume 10 Issue 1 of the Lewis & Clark Law Review. TOPICS & SCHEDULE: Each paper presentation will be followed by a roundtable discussion with the conference presenters, moderators, commentators and other invited participants.
      Morning Session I 9:15 a.m. Donald Langevoort – “Reflections of the Psychology of Scienter (and the Securities Fraud Case Against Martha Stewart That Never Happened)” 10:15 a.m. Adam Pritchard – “Auditor Liability, Civil and Otherwise” 11:15 a.m. Break Morning Session II 11:30 a.m. Jill Fisch – “Regulatory Response to Investor Irrationality: The Case of the Research Analyst” 12:45 p.m. Lunch Afternoon Session I 2:00 p.m. Stephen Choi – “Behavioral Economics and the Regulation of Public Offerings” 3:00 p.m. Larry Ribstein – “Rational Markets, Irrational Investors and Securities Regulation” 4:00 p.m. Break Afternoon Session II 4:15 p.m. Commentary Henry G. Manne and Thomas Ulen 5:00 p.m. Closing of Conference - Dean James Huffman 5:15 p.m. Reception
      Stephen Choi, New York University School of Law Jill Fisch, Fordham University School of Law Donald C. Langevoort, Georgetown University Law Center Henry G. Manne, George Mason School of Law (emeritus) Adam Pritchard, University of Michigan Law School Larry Ribstein, University of Illinois College of Law Thomas Ulen, University of Illinois College of Law
    MODERATORS: Jennifer Johnson, Lewis & Clark Law School & Geoffrey Manne, Lewis & Clark Law School FORUM LOCATION: Lewis & Clark Law School, Wood Hall, Room 7, 10015 SW Terwilliger Blvd., Portland, Oregon, 97219. FOR ADDITIONAL INFORMATION PLEASE CONTACT: Shirley Johansen at 503-768-6756 Additional details and driving instructions at:

Monday, September 05, 2005
Mihail Posts New Version John Mikhail has posted a new version of Aspects of the Theory of Moral Cognition: Investigating Intuitive Knowledge of the Prohibition of Intentional Battery and the Principle of Double Effect on SSRN. If you missed this the first time around, it is highly recommended.

George Will's Wrong Turn Check out Will, For Once, Takes A Wrong Turn over at Discriminations.

Roberts to be Nominated as Chief CNN is reporting that the President with renominated Roberts for the position of Chief Justice of the Supreme Court of the United States.

Weekend Update On Saturday, the Download of the Week was There's No Such Thing as Biopiracy ... And It's a Good Thing Too by Jim Chen and the Legal Theory Bookworm recommended Priceless: On Knowing the Price of Everything and the Value of Nothing. On Sunday, the Legal Theory Lexicon entry was on the Coase Theorem and the Legal Theory Calendar previewed this weeks workshops and colloquia.

Clermont on Reverse Erie Kevin M. Clermont (Cornell University - School of Law) has posted Reverse-Erie (Cornell Legal Studies Research Paper No. 05-021) on SSRN. Here is the abstract:
    Traditional Erie is like a false front on a movie set, with nobody seeing the unfinished rear side. That other side depicts the extent of federal law applicable in state courts, which is determined under a doctrine called reverse-Erie. While everyone has an Erie theory and stands ready to debate it, almost no one has a theory of reverse-Erie, and no one at all has developed a clear choice-of-law methodology for it. Reverse-Erie, often misunderstood, mischaracterized, and misapplied by judges and commentators, goes strangely ignored by most scholars. And it goes ignored even though it holds a key to understanding this major problem ubiquitously encountered in our system: every question of law posed to every actor in a system of federalism such as ours is preceded by the choice-of-law problem of whether the legal question is a matter of state or federal law. This article therefore tries to unearth the doctrine, developing a theory and methodology of reverse-Erie. This doctrine turns out to provide that federal law - be it constitutional, statutory, or common law - will apply in state court pursuant to the Supremacy Clause whenever that federal law preempts state law or, as less frequently acknowledged, prevails by an Erie-like judicial balancing in situations where Constitution and Congress have not chosen. Indeed, it interlocks with and ultimately merges into that megadoctrine also called Erie, which treats the system's overall relationship between state and federal law. Then, this article tries to explain the overlooked significance of this subject. After the integration of reverse-Erie, Erie comes to form a logical pattern, in which not only the state and federal courts but also all the other institutional and private actors can balance state and federal interests to shape or perceive the optimal relationship of state and federal law in our governmental and legal life. Nevertheless, reverse-Erie has experienced only neglect apparently because it falls between the curricular stools of civil procedure, constitutional law, and federal courts and because scholars tend to come at the subject from doctrinal jumping-off points other than Erie itself.

Claus on Constitutional Guarantees of the Judiciary Laurence Claus (Univeristy of Scan Diego) has posted Constitutional Guarantees of the Judiciary: Jurisdiction, Tenure, and Beyond (American Journal of Comparative Law, Vol. 54) on SSRN. Here is the abstract:
    This National Report to the XVIIth Congress of the International Academy of Comparative Law analyzes the constitutional guarantees of jurisdiction and tenure that empower and protect the U.S. federal judiciary. On jurisdiction, the Report adumbrates arguments advanced in a major work-in-progress on Article III’s guarantee of federal jurisdiction. In particular, the Report argues: 1. The orthodox understanding that Article III’s “exceptions” clause lets Congress remove jurisdiction over Article III matters from the Supreme Court is inconsistent with (a) Article III’s syllogism that the judicial Power “shall be vested” in the Court and “shall extend” to all nine categories of matter listed in the Article; (b) Article III’s requirement that the Court’s relation to the judicial Power be that of one supreme Court; and (c) the source of Congress’s “exceptions” power, which is the necessary-and-proper clause of Article I § 8. 2. The drafting history of Article III at the Philadelphia Convention suggests that Congress’s “exceptions” power was designed only to let Congress shift Article III matters from the Supreme Court’s appellate jurisdiction to the Court’s original jurisdiction. 3. The Supreme Court’s jurisdictional supremacy contemplates an ultimate appellate jurisdiction over all Article III matters. In default of contrary Congressional regulation under the necessary-and-proper clause to create as-of-right appeals, the Court’s ultimate appellate jurisdiction is exercisable at the Court’s discretion. The discretionary nature of ultimate appellate jurisdiction was exemplified for the founders by the British House of Lords’ reception as “supreme court of judicature in the kingdom” of petitions for review. 4. “Two-tier” analysis of Article III’s “case” and “controversy” categories is not supported by the founders’ use of “all” only with respect to the “case” categories. Absence of “all” from the “controversy” categories merely reflects the founders’ plan, for most of Article III’s drafting history, to extend Article III to some but not all controversies between states, and in particular, to except from the Article controversies between states concerning territory or jurisdiction.

Kysar on Heuristics Douglas A. Kysar (Cornell University - School of Law) has posted Are Heuristics a Problem or a Solution on SSRN. Here is the abstract:
    This report reflects the combined efforts of one subgroup of an assemblage of distinguished scholars in law, business, economics, psychology, and neuroscience who gathered for a week in Berlin in 2004 as part of the 94th Dahlem Workshop on Heuristics and the Law. This subgroup was moderated by Robert Frank (Cornell University), and included Peter Ayton (City University - London), Bruno Frey (University of Zurich), Gerd Gigerenzer (Max Planck Institute for Human Development), Paul Glimcher (New York University), Russell Korobkin (University of California, Los Angeles), Donald Langevoort (Georgetown University), and Stefan Magen (Max Planck Institute for Research on Collective Goods). Douglas Kysar (Cornell University) served as rapporteur. Charged with addressing the theme, Are Heuristics a Problem or a Solution?, the subgroup discussed and debated a range of methodological, descriptive, and prescriptive issues concerning the implications of cognitive psychology for law, many of which are summarized in this consensus report. Included are (1) a general introduction to the subject of heuristics in decision theory, with particular attention to the distinction between optimality-based and heuristic-based decision making models within psychology; (2) an attempt to synthesize these two psychological research paradigms into a single conceptual framework that helps to identify important areas in which further research and understanding are needed; (3) an overview of scholarship to date on heuristics and the law, including the observation that this scholarship has ignored certain significant lessons of the heuristics research tradition in psychology; and (4) a compilation of suggestions for future interdisciplinary research concerning both the use of heuristics by legal subjects whose behavior the law is attempting to influence, and the use of heuristics by policymakers as a model for the substantive design of legal rules.

Bandes on Criminal Lawyering Susan Bandes (DePaul University College of Law) has posted Repression and Denial in Criminal Lawyering (Buffalo Criminal Law Review, Vol. 9, No. 2, February 2006) on SSRN. Here is the abstract:
    Legal scholars as well as laypeople are fascinated by the question of how criminal lawyers can defend people accused of heinous crimes. This topic is commonly addressed as part of a well-established discourse about the morality and ethics of criminal defense. A separate conversation needs to occur. Its topic is how, in an emotional sense, one defends people accused of terrible crimes, and what toll such defense takes, both professionally and personally. This article first explores the defense mechanisms employed by criminal defense lawyers, and how these mechanisms affect lawyers both as advocates and as people whose work is comfortably integrated into their lives. Second, it suggests that the mechanisms and strategies discussed are not unique to defense attorneys, but are common in legal practice generally. Finally, it argues that the legal profession needs to overcome its aversion to acknowledging and addressing the emotional aspects of lawyering, and suggests some possible paths toward this goal.

Godsey on Miranda Mark Godsey (University of Cincinnati - College of Law) has posted Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings (Minnesota Law Review, Vol. 90, 2006) on SSRN. Here is the abstract:
    Since Miranda v. Arizona was decided in 1966, much scholarly attention has been devoted to both the theoretical underpinnings and the real world impact of that decision. Little attention, however, has been paid to the substance or content of the warnings. The Supreme Court has often stated that the Miranda warnings requirement is a prophylactic rule that can change and evolve. However, in spite of 40 years of legal developments and practical experience, the content of these famous four warnings has never been modified or even been subjected to systematic scrutiny. This Article proposes that the substance of the Miranda warnings should be reconsidered as the rules of law underlying the warnings substantially evolve, and as we gain new insights into their effectiveness (or lack thereof). In light of the significant legal changes of the last four decades, and the real world experience that we have gained with the warnings during this time, Miranda's 40th anniversary presents an opportune time to reexamine the content of the warnings to ensure that they remain consistent with and continue to reflect the evolving legal principles that support and justify their existence, and to reaffirm that they remain effective in upholding and enforcing the constitutional rights of suspects. A close examination of the warnings suggests that they are out of date. This Article argues that if the warnings were redesigned today, by a Court as mindful of properly balancing the competing interests as was the Miranda Court, they would take a different form. The first two warnings, relating to the right to remain silent, would certainly be included. However, these warnings should be buttressed by a third right to silence warning that would provide something to the effect of: If you choose to remain silent at the beginning or at any time during the interview, your silence will not be used against use as evidence to suggest that you committed a crime simply because you refused to speak. Furthermore, the third and fourth warnings, relating to the right to counsel, would not make the updated list. In place of the two right to counsel warnings would be three new requirements, reflecting legal developments and practical lessons that have come to light since 1966. The first requirement would be a new warning as follows: If you choose to talk, you may change your mind and remain silent at any time, even if you have already spoken. The second requirement would be a rule mandating that the police to re-instruct suspects of the new Miranda warnings at intervals throughout lengthy interrogations. Finally, the police would be required to videotape all interrogations. These three new requirements would more effectively achieve the intended policy goals of the right to counsel warnings, and thus, should replace the right to counsel warnings in the prophylactic scheme.

Sunday, September 04, 2005
Legal Theory Calendar

Legal Theory Lexicon: The Coase Theorem
    This is the second installment in the Legal Theory Lexicon, an experimental Sunday feature of Legal Theory Blog primarily aimed at law students. Each week I introduce a basic concept or idea in legal theory. This week the idea is the Coase theorem. Ronald Coase is a member of the law and economics faculties at the University of Chicago and a winner of the Nobel Prize in Economics. The idea that we call the Coase Theorem was advanced in a very famous paper:
      Coase, R.H. , The Problem of Social Cost, Journal of Law and Economics 3, 1-44 (1960).
    To understand the Coase theorem, we first need to introduce another idea, the externality. Roughly speaking, an economic externality is cost imposed by an activity that is not accrued by the person or firm who engages in the activity. That's a mouthful. Here's an example:
      The Reading Railroad has track that goes by Farmer Jones's farm. The locamotives cast off sparks that cause a fire that damages Farmer Jones's crop, imposing a cost on Jones of $100. That ocst is an externality.
    If the Reading Railroad owned the farm, then it would bear the cost, and there wouldn't be an externality. Before Coase, we thought that the existence of externalities justified some kind of government intervention. For example, we could create a liability rule that required the Reading Railroad to pay for the damage to his crops. Without a liability rule, the railroad wouldn't have any incentive to prevent the damage if there was a cost-effective means of doing so. Let's add a fact to our hypothetical:
      The Reading Railroad can purchase and install a 100% effective spark arrestor for $50.
    We want the railroad to install the spark arrestor for $50 to prevent $100 worth of damage. Before Coase, we said, "internalize the external diseconomies!" Really! That is, use tort law to transform the external cost imposed by the railroad into an internal cost.
    This is where Coase came in. But to understand what Coase said, we need to add another bit of economic jargon. By transaction cost, we mean the cost of reaching a bargain. In the real world, lawyers are frequently part of transaction costs, but the time and expense that it takes to strike a deal are transaction costs as well--even if you don't actually lay out any cash. One more little move, if we assume that there are zero transaction costs, we are simply assuming that it costs absolutely nothing to strike a deal--no time, no effort, no lawyers, not even any paper on which to write it up.
    Coase said, "Let's assume zero transaction costs!" Okey dokey, what next! If we assume zero transaction costs, then when there are externalities, the market will reach the efficient outcome irrespective of how entitlements are assigned. Another mouthful! Let's go back to our hypo:
      Assuming zero transaction costs, it doesn't matter whether the law assigns the right to generate sparks to the railroad or the right to be free from sparks to the farmer. Why not? Let's work it out. There are two possibilities:
        If we assign the entitlement to the farmer, the railroad will pay $100 in damages to the farmer for vioalting the farmer's right to be spark free. The railroad will realize that it can save this $100 cost by investing $50 in a spark arrestor. So the railroad will buy the spark arrestor.
        If we assign the entitlement to the railroad, the farmer will incur $100 in costs from the fire. The farmer will realize that he can save this $100 cost by entering into a contract whereby he pays $50 (plus some extra enducement, say $51 total) to the railroad in exchange for the railroad installing the spark arrestor. Since we have assumed zero transaction costs, the railroad and the farmer both benefit from this deal.
      That's it! It doesn't matter whether we assign the right to the farmer or the railroad. Either way, we get the efficient outcome.
    If you are a first year law student, the Coase theorem is a very powerful analytic tool for understanding the economics of tort law. When you study a new rule or problem, ask yourself, "How would this come out assuming zero transaction costs?" Then ask, "If we assume positive transaction costs, how does the problem change?"
    One word of warning, the zero-transaction-costs assumption is just an assumption. In the real world, there are always (or almost always) transaction costs. Nonetheless, in some situations, transactions costs are sufficiently low so that the efficient bargain can be struck. In other situations, this is not the case. That's where the action is!

Rehnquist and the "New Federalism" William Rehnquist had a big impact on American law, but one of his most important and distinctive legacies is sometimes called "The New Federalism," a series of constitutional cases that reinvigorated the constitutional federalism provisions, including the 10th and 11tha Amenmdents and the enforcement of Article I. Two of the most important new federalism cases were United States v. Lopez and United States v. Morrison. In thiese cases, the Supreme Court struck down federal statutes on the ground that they exceeded Congress's power under the commerce clause. Both Lopez and Morrison were 5-4 decisions, with Chief Justice Rehnquist writing the opinion of the court--joined by Justices's O'Connor, Kennedy, Scalia, and Thomas. Both Rehnquist and O'Connor dissenting (along with Thomas) in Gonzales v. Raich, the case in which a majority upheld Congress's power to regulate noncommercial intrastate possession of medical marijuana. One of the many questions about the new Supreme Court will concern the future of the new federalism--given the departure of both Rehnquist and O'Connor. It is not clear that John Roberts will be in the mold of O'Connor and Rehnquist--he could be the fifth vote to confine Lopez and Morrison to their facts (or even overrule these cases). If, in addition, the replacement for Rehnquist voted like Justice Scalia on federalism issues, then the Raich might have been an 8-1 decision if it had been preseted to the Court as it could be constituted this fall. In other words, the future of the "New Federalism" (and with it, an important part of Chief Justice Rehnquist's constitutional legacy) rides in some sense on the next two appointments to the Supreme Court.

Rehnquist Scholarship Here are some dowloadable papers that deal with the jurisprudence, impact, and legacy of Chief Justice Rehnquist and the Rehnquist Court:

Saturday, September 03, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Priceless: On Knowing the Price of Everything and the Value of Nothing by Frank Ackerman and Lisa Heinzerling. Here's the a short review from Publishers Weekly:
    Publishers Weekly How does one put a cost on a human life? And what effect does air pollution have on our health? Ackerman and Heinzerling focus on such questions in this volume, a skeptical and instructive look at how economists put a dollar value on intangible risks and rewards. What sounds like a purely technical process has enormous political implications, thanks to the pervasive use of cost-benefit analysis in government decision making. Because this analysis is used to quantify the impact of often controversial regulatory and tax policies, the economists' numbers loom large in public policy, which Ackerman and Heinzerling clearly deplore. They've composed a lively and engaging attack, both well reasoned and well documented, on the myriad ways that these little-scrutinized figures are manipulated for political gain. While it's no surprise to anyone who has worked with statistics that numbers are frequently massaged to advance a particular point of view, the authors argue that in some cases the massaging leans toward misrepresentation or outright incompetence. For example, one study attempted to downplay the hazards of toxic waste dumps by noting that accidents with deer hurt more people every year; but then, there are many more deer than toxic waste dumps. This is a thoughtful book that is partisan but not strident; at the same time, it assumes a certain degree of mathematical sophistication.

Download of the Week The Download of the Week is There's No Such Thing as Biopiracy ... And It's a Good Thing Too (McGeorge Law Review, Vol. 36, 2005) by Jim Chen. 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.
Download it while its hot!

Friday, September 02, 2005
Link Fixed My apologies for the broken link to Pivotal Politics, Appointments Gridlock, and the Nuclear Option yesterday. This should work.

Leiter & Ribstein on SSRN Check out More Fun with SSRN Downloads on Leiter's Law School Reports. And check out SSRN postings and faculty productivity by Larry Ribstein on Ideoblog.

Friday Calendar
    American Society for Political and Legal Philosophy 52nd Annual Meeting Nomos Fifty: Transitional Justice Washington, September 2-3, 2005 Panel 1: Friday September 2, 4:15 pm, Omni Shoreham, room Congressional B Chair: Jon Elster, Political Science, Columbia University Speaker: Debra Satz, Philosophy, Stanford Universit) Commentators: Gary Bass, Politics, Princeton University Adrian Vermeule, Law, University of Chicago Evening reception, Friday September 2, 6 pm, Marriot Wardman Park, Kennedy room Breakfast reception, Saturday September 3, 7:30 am, Marriot Wardman Park, Taft Panel 2: Saturday September 3, 8 am, Marriot Wardman Park, Wilson A Chair: Melissa Williams, Political Science, University of Toronto Speaker: Elizabeth Kiss, Political Science, Duke University Commentators: Gopal Sreenivasan, Philosophy, University of Toronto Jeremy Webber, Law, University of Victoria Panel 3: Saturday September 3, 10:15 am, Marriot Wardman Park, Wilson A Chair: Jacob Levy, Political Science, University of Chicago Speaker: David Dyzenhaus, Law, University of Toronto Commentators: Eric Posner, Law, University of Chicago Bernard Boxill, Philosophy, UNC Dinner: Saturday September 3, 7:30 pm, Cafe Milano

Schoenbrod and Sandler on Institutional Reform Litigation David Schoenbrod and Ross Sandler (New York Law School and New York Law School) have posted The Supreme Court, Democracy and Institutional Reform Litigation (New York Law School Law Review, Forthcoming) on SSRN. Here is the abstract:
    In an unexpected portion of its unanimous opinion in Frew v. Hawkins, 540 U.S. 431 (2004), the Supreme Court broke new ground on an important question involving consent decrees. The case began when Texas state officials invoked the Eleventh Amendment in their resistance to a federal Medicaid consent decree. The Court quickly disposed of that argument, but Justice Anthony Kennedy, writing for the unanimous Court, took the opportunity to forcefully state that consent decrees that intrude on the policy making prerogatives of state and local officials more than is necessary to protect rights undercut the effective functioning of elected state and local governments. In that context Justice Kennedy broadly discussed the Court's rulings on modifications of consent decrees. In this essay, we argue that Frew significantly eased the standards for modification of consent decrees previously set out in Rufo v. Inmates of Suffolk County Jail. Frew as a whole received little attention and the part of it easing modification seems to have received no notice at all. It is, however, possible to gauge the reaction it will produce from the reaction to our book, Democracy by Decree: What Happens When Courts Run Government (Yale U. Press, 2003). The book came out a year before Frew, proposed the kind of easing adapted by that case, and explained it in terms similar to that stated by the Supreme Court. In this essay, we reply at once to Frew's potential critics and our actual critics. Citing our book and Frew, a bi-partisan group of senators and representatives introduced this spring the Federal Consent Decree Fairness Act. The act would not affect the power of federal courts to approve consent decrees, but would allow state and local defendants to more easily get decrees modified or vacated when the decrees are no longer necessary to protect rights. The bill was the subject of hearings in the House on June 21 and in the Senate on July 19, 2005.

Heinzerling on Daubert Lisa Heinzerling (Georgetown University Law Center) has posted Doubting Daubert (Georgetown Public Law Research Paper No. 784689) on SSRN. Here is the abstract:
    In 'Daubert v. Merrell Dow Pharmaceuticals, Inc.,' the Supreme Court announced that it was liberalizing the rules on admissibility of expert scientific evidence by rejecting a requirement that such evidence be generally accepted in the scientific community. 'Daubert' has had just the opposite effect from the one the Court said it intended: it has narrowed rather than enlarged the range of expert evidence admitted by courts, and it has ushered in a whole suite of unscientific legal rulings in the process. Proposals to extend 'Daubert' to the administrative setting should be rejected, and the courts should pull back from 'Daubert' itself.
I just saw Heinzerling speak at Georgetown the day before yesterday--very impressive.

Lerner on Enron and the CIA Craig S. Lerner (George Mason University - School of Law) has posted Calling a Truce in the Culture Wars: From Enron to the CIA (George Mason Law & Economics Research Paper No. 05-24) on SSRN. Here is the abstract:
    This Article compares and evaluates recent Congressional efforts to improve institutional "cultures" in the private and public sectors. The Sarbanes-Oxley Act of 2002 was designed to upgrade corporate culture by patching up the "walls" that separate corporate management from boards of directors, accountants, lawyers, and financial analysts. The Intelligence Reform Act of 2005 took a different tack, hammering away at walls that supposedly segmented the intelligence community. The logic was that the market failed because people did not observe sufficient formalities in their dealings with one another, while the intelligence community failed precisely because people kept their distance from one another and declined to share information. The way to improve their respective cultures, Congress determined, was to build up walls in the one case and to tear them down in the other.

Issacharoff and Delaney on Credit Card Accountability Samuel Issacharoff and Erin F. Delaney (New York University School of Law and New York University - School of Law) have posted Credit Card Accountability (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
    The dramatic expansion in consumer credit, particularly through the ready availability of credit cards, raises significant questions about checks on potentially unscrupulous behavior. In democratized markets characterized by large sellers and small transaction consumers, there is the risk that marginal charges may impose costs not worth the consumer's bother, but amounting in the aggregate to significant gains for the seller. This article examines the problem of insufficient regulatory responses as a result of the creation of effective barriers against deterrence-based oversight of the credit card market. The first barrier is the ability of small states to export favorable treatment of banks issuing credit cards under the National Banking Act and the role of federal preemption in foreclosing any response by other states. The second is the spreading use of binding arbitration clauses precluding class actions by most major credit card companies in their agreements, thereby effectively threatening any ex-post accountability for misbehavior. This article is a first cut examination of the role of ex post accountability as a form of weak paternalistic regulation, regulatory responses that leave wide berth for contractual initiatives ex ante but demand effective checks after the fact. From this perspective, we suggest these impediments to collective enforcement mechanisms are of sufficient consequence as to require exacting judicial scrutiny. The recent decision by the California Supreme Court views arbitration clauses from a functional perspective, one that assesses both the vulnerability of consumers and the availability of meaningful means of redress. Ultimately, the California court's decision may provide the best method of achieving some accountability within the boundaries of weak paternalism.

Kim on Hate Crimes & the Limits of Inculpation Janine Young Kim (Whittier Law School) has posted Hate Crime Law and the Limits of Inculpation (Nebraska Law Review, 2006) on SSRN. Here is the abstract:
    Critics sometimes maintain that hate crime law punishes an offender for her motive and character and is therefore doctrinally and morally illegitimate. This manuscript explores the concept of culpability to examine this challenge, and argues that critics inaccurately assume that our criminal law conditions culpability on a robust understanding of choice. This inaccuracy significantly undermines the doctrinal critique against hate crime law, which in fact appears to be consistent with many other laws that consider motive and character as relevant factors in determining degree of guilt and proportionate punishment. Notwithstanding the apparent doctrinal validity of hate crime law, the author questions whether enhanced punishment for racially motivated crimes is morally (and politically) defensible in light of our current theoretical and psychological understanding of race and racism.

Thursday, September 01, 2005
Blogs for New Orleans Law Schools Eric Muller writes:
    I have set up blogs for the Loyola-New Orleans and Tulane Law School communities to use over the coming days and (if necessary) weeks and months. The idea is to give the communities a message board -- a place to post information of common interest that community members can access (as they are able). People can post to the blogs by emailing me at the below addresses, or by phoning me at (919) 962-7067 and leaving a message with the content of what they'd like posted. For Tulane: URL = email (for posts) = For Loyola-New Orleans: URL = email (for posts) = The success of these blogs as information clearinghouses for these communities depends on GETTING THE WORD OUT. Most members of these communities are still without power, and will only slowly be regaining internet access. As I understand it, the university computer systems are entirely down. Please pass the word along to others that these blogs exist, and that they are open to receiving posts about school-related matters from members of the affected communities. I am especially at a loss to know how to reach the affected student bodies, so if you can forward to someone who might be able to get the word out to them, please do so, or notify me and I'll contact them.

My Panel at APSA I'll be presenting today at the American Political Science Association in Washington DC, with my co-author David Law. Our paper is: Pivotal Politics, Appointments Gridlock, and the Nuclear Option. You can download the paper from SSRN by following the link. Here is the information on the panel:
    26-9 Congress and Federal Judicial Selection Date: Thursday, Sep 1, 2:00 PM Location: Hotel: Marriott Room: Marriott Salon 3 Chair: David A. May, Eastern Washington University Author(s): "How Right Is He? A Quantitative Analysis of Judge John G. Roberts" Kenneth L. Manning,, University of Massachusetts, Dartmouth The Nuclear Option: Judicial Filibusters and the Fate of Senate Tradition and Procedure Michael J. Korzi,, Towson University Waning Influence? Senatorial Courtesy at the District Court and Courts of Appeals Levels Marcus Hendershot,, Washington University, St. Louis Pivotal Politics, Appointments Gridlock, and the Nuclear Option David Law,, University of San Diego Lawrence Solum,, University of San Diego Discussant(s): Elliot E. Slotnick,, Ohio State University

Thursday Calendar
    Florida State University, College of Law: Anupam Chander, University of California, Davis School of Law, NetWork: The Law and Economics of Trade in Services.
    American Political Science Association Annual Meeting, Washington DC