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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Saturday, December 31, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Hegel: Elements of the Philosophy of Right by Georg Wilhelm Fredrich Hegel. A classic! As an undergraduate, I took a graduate seminar on Hegel's philosophy of right with Josh Cohen. It is an immensely rich text--one that deserves serious attention from legal theorists. Here's a blurb:
    This book is a translation of a classic work of modern social and political thought. Elements of the Philosophy of Right, Hegel's last major published work, is an attempt to systematize ethical theory, natural right, the philosophy of law, political theory, and the sociology of the modern state into the framework of Hegel's philosophy of history. Hegel's work has been interpreted in radically different ways, influencing many political movements from far right to far left, and is widely perceived as central to the communitarian tradition in modern ethical, social, and political thought. This edition includes extensive editorial material informing the reader of the historical background of Hegel's text, and explaining his allusions to Roman law and other sources, making use of lecture materials which have only recently become available. The new translation is literal, readable, and consistent, and will be informative and scholarly enough to serve the needs of students and specialists alike.

Download of the Week The Download of the Week is Contract as Statute by Stephen J. Choi and G. Mitu Gulati. Here's the abstract & you can scroll down to Friday for some comments:
    Formalists contend that courts should apply strict textual analysis in interpreting contracts between sophisticated commercial parties. Sophisticated parties have the expertise and means to record their intentions in writing, reducing the litigation and uncertainty costs surrounding incomplete contracts. Moreover, to the extent courts misinterpret contracts, sophisticated parties may simply rewrite their contracts to clarify their true intent. We argue that the formalist approach imposes large costs on even sophisticated parties in the context of boilerplate contracts. Where courts make errors in interpreting boilerplate terms, parties face large collective action problems in rewriting existing boilerplate provisions. Any single party that attempts to change a boilerplate term will face a large market discount for deviating from the market standard. In such situations, a court erroneous interpretation that reduces overall contracting surplus may persist in an industry. We also contend that taking a more contextual approach, including evidence on course of conduct and industry custom, to contract interpretation will not ameliorate the difficulties inherent in the interpretation of boilerplate terms. The specific parties to a boilerplate contract often have no understanding of what the disputed boilerplate clause means. Where such parties attempt to supply their own ex post understandings, they may not represent the interests of the entire industry that relies on the particular boilerplate clause. We provide a new approach to the interpretation of boilerplate terms between sophisticated contracting parties. Courts should bypass an inquiry into the understanding of the parties to the current contract and instead go back to the point in the past when the disputed clause first became part of the boilerplate. Much like the enacting legislative body for a statute, the original drafting parties provide the best source of information on the original meaning of boilerplate contract terms. The original drafting parties will have spent the most time and resources in negotiating the contract term (and thus represent a true "meeting of the minds"). In a market populated with sophisticated parties on all sides, the drafting parties necessarily must balance the interests of all sides for a contract term to gain at least initial widespread acceptance in the industry. The drafters will also enjoy an expertise advantage over any court attempting to interpret a term. Taking a historical approach to the interpretation of boilerplate terms will create an incentive for standard setters to arise in industries comprised of sophisticated contracting parties to supply boilerplate terms and a detailed historical record of the meaning of the terms.
Download it while its hot!

Breyer beats out Scalia Check out So, Guy Walks Up to the Bar, and Scalia Says... in today's New York Times. Here's a taste:
    The New York Times, building on Professor Wexler's pioneering work, analyzed the available transcripts for the term that began this October. The mood under Chief Justice Roberts has brightened, the analysis found, with the average number of justice-generated laughs per argument rising to 2.9 from 2.6 the previous term. In the current term, the Times analysis found, there has also been movement in the funniness-of-individual-justices department. Justice Breyer has taken the lead, at 28 laughs, edging out Justice Scalia, with 25. They also tied in the largest-number-of-jokes-in-a-single-argument category, each squeezing five into a single hour.

Friday, December 30, 2005
Choi & Gulati on Contract as Statute Stephen J. Choi and G. Mitu Gulati (New York University - School of Law and Georgetown University Law Center) have uploaded Contract as Statute to SSRN. Here is the abstract:
    Formalists contend that courts should apply strict textual analysis in interpreting contracts between sophisticated commercial parties. Sophisticated parties have the expertise and means to record their intentions in writing, reducing the litigation and uncertainty costs surrounding incomplete contracts. Moreover, to the extent courts misinterpret contracts, sophisticated parties may simply rewrite their contracts to clarify their true intent. We argue that the formalist approach imposes large costs on even sophisticated parties in the context of boilerplate contracts. Where courts make errors in interpreting boilerplate terms, parties face large collective action problems in rewriting existing boilerplate provisions. Any single party that attempts to change a boilerplate term will face a large market discount for deviating from the market standard. In such situations, a court erroneous interpretation that reduces overall contracting surplus may persist in an industry. We also contend that taking a more contextual approach, including evidence on course of conduct and industry custom, to contract interpretation will not ameliorate the difficulties inherent in the interpretation of boilerplate terms. The specific parties to a boilerplate contract often have no understanding of what the disputed boilerplate clause means. Where such parties attempt to supply their own ex post understandings, they may not represent the interests of the entire industry that relies on the particular boilerplate clause. We provide a new approach to the interpretation of boilerplate terms between sophisticated contracting parties. Courts should bypass an inquiry into the understanding of the parties to the current contract and instead go back to the point in the past when the disputed clause first became part of the boilerplate. Much like the enacting legislative body for a statute, the original drafting parties provide the best source of information on the original meaning of boilerplate contract terms. The original drafting parties will have spent the most time and resources in negotiating the contract term (and thus represent a true "meeting of the minds"). In a market populated with sophisticated parties on all sides, the drafting parties necessarily must balance the interests of all sides for a contract term to gain at least initial widespread acceptance in the industry. The drafters will also enjoy an expertise advantage over any court attempting to interpret a term. Taking a historical approach to the interpretation of boilerplate terms will create an incentive for standard setters to arise in industries comprised of sophisticated contracting parties to supply boilerplate terms and a detailed historical record of the meaning of the terms.
This is a very interesting (and highly recommended) article. I have a few questions and comments:
  • Choi & Gulati equate the consideration of "intent" with "a more statutory approach," but I should think that the debates over the role of intentions and "plain meaning" that exist in the statutory context are quite similar to those which exist in contract law.
  • On the surface there is a mismatch between the Choi and Gulati's recognition that alterations in boilerplate are costly and their call for a focus on the "original intent of the drafters" of the boilerplate in question. Indeed, the very same question--what intent should govern boilerplate--arises in the statutory context.
  • From the example of pari passu clauses in sovereign debt contracts, Choi & Gulati argue "a single court attempting to interpret the meaning of a commercial boilerplate term used in a single contract can generate long-lasting and disruptive consequences for the rest of the market using the same boilerplate term." I was certainly persuaded, but I should think that this example does not clearly supports focus on the intent of the original drafters. What is needed is an interpretive approach that will produce stable meanings that can be the focus of wide intersubjective agreement. So long as these two criteria are met, contracting parties will be in a position to select boilerplate with confidence that it's meaning will not vary over time or among different judges. But a focus on intention is exactly the wrong methodology to achieve this result. The intentions of the original drafters of boilerplate are subjective states. New evidence about the intentions results in new meanings. Because the divining of subjective intentions is always an uncertain guessing game, different judges may calibrate them differently. And to the extent that we rely on intentions, evidence of the intentions of the original drafters is likely to be older and more sketchy than evidence of contemporaneous intentions.
  • By way of contrast, focus on public meaning (or the publicly available meaning) of boilerplate seems more likely to produce intersubjective agreement among adjudicators. And a strict rule of stare decisis seems the obvious candidate for the preservation of stable meanings.
  • Choi & Gulati assert, "The first interpretive method that a court is likely to apply is textual analysis, looking at the language of the contract. Formalists would have courts stop at the text itself as the sole source of interpretive authority, applying tie-breaking rules where the text is ambiguous. Further, formalists view all clauses in the contract as dated as of the time that the contract was signed." Well, for all I know, some formalists do take this poisiton. (They provide no citation or supporting evidence for this assertion.) But I should think that it is simply flat-out wrong to identify this position as somehow inherent in "legal formalism" as a position in general jurisprudence. Indeed, I am not sure that it is even coherent to imagine a court would "stop at the text itself," and almost any sophisticated formalist theory of interpretation will require a consideration of the context in which language is used.
  • Perhaps the problem here is that Choi and Gulati don't really define what they mean by formalism--always a mistake, I think.
Quibbles aside, I was immensely impressed by this paper, as I always am by Choi and Gulati's intelligent and provocative work. What else can I say, but download it while its hot!

Thai on Justice Stevens Joseph T. Thai (University of Oklahoma - College of Law) has uploaded John Paul Stevens (Encyclopedia of American Civil Liberties, Routledge, 2006) to SSRN. Here is the abstract:
    This entry for the forthcoming Encyclopedia of American Civil Liberties examines the life and work of Justice John Paul Stevens. As the article relates, in Stevens' three decades on the Supreme Court, he has established himself as a highly independent thinker distinguished for his originality and lack of ideology. A prolific writer, Stevens’ opinions have evinced a dedication to restrained decision making in the common law tradition of case-by-case adjudication, a deep faith in the judicial exercise of reason and judgment, and a profound commitment to fulfilling the Constitution’s fundamental purposes, including especially its promise of liberty.

Thursday, December 29, 2005
Call for Papers: Computers, Freedom, & Privacy
    CFP2006: The Sixteenth Conference on Computers, Freedom & Privacy L'Enfant Plaza Hotel Washington, DC, USA May 2-5, 2006 CALL FOR PROPOSALS The Program Committee of the Sixteenth Conference on Computers, Freedom, and Privacy (CFP2006) seeks your proposals for innovative conference sessions and speakers. The Computers, Freedom & Privacy Conference has been a leading venue for public debate on the future of privacy and freedom in the online world for a decade and a half. Each year, key representatives from government, business, education, and non-profits including the legal, law enforcement, security, media, consumer, and individual hobbyist communities have gathered together to anticipate policy trends and issues and to help map the future of society in the online world. Attendees will meet again this coming May to address cutting edge questions and issues in computing, freedom and privacy. CFP has been held in different cities over the years, from San Francisco to Toronto to Chicago to Austin. This year the conference once again will be held in Washington, D.C., which continues to offer an unusual mix of policy and legal experts and resources to draw upon. This conference will not be limited to discussions of United States-based parties and interests, however -- consistent with its history, CFP expects to draw participants and events from around the world, addressing the forces that continue to shape the global Internet as well as well as other issues raised by our increasingly pervasive technological environment. As always, the conference hopes to examine the role the Internet is playing in democratic activism at all levels: local, national, and global. We welcome proposals on all aspects of computers, freedom, and privacy. We strongly encourage proposals that explore some of the most important issues facing the Internet and freedom, including: intellectual property and intellectual freedom; copyright versus technologies that make copying cheap or free; global activism; technology and monopoly; voting technology and democracy; technology and weapons; ICANN and Internet governance; borders and censorship; digital divide; biometric systems; consumer privacy; wireless privacy and security; hacktivism; digital rights management and privacy; public records and private lives. We are seeking proposals for tutorials, plenary sessions, workshops, technical demonstrations, and birds-of-a-feather sessions. We are also seeking suggestions for speakers and topics. Sessions should present a wide range of thinking on a topic by including speakers from different viewpoints. Complete submission instructions appear on the CFP2006 web site at: All submissions must be received by January 31, 2006. Proposals will be reviewed by the CFP2006 Program Committee and Advisory Board. The Program Committee will notify submitters of the status of proposals no later than March 1, 2006.

Anand on Sarbox & Corporate Governance Anita I. Anand (Yale Law School) has posted An Analysis of Enabling vs. Mandatory Corporate Governance Structures Post Sarbanes-Oxley on SSRN. Here is the abstract:
    I argue that firms have incentives to adopt corporate governance practices in the absence of a legal requirement to do so. I further contend that a partially enabling governance regime, and particularly one coupled with mandatory disclosure of a firm's governance practices, is likely to yield a high level of compliance at lower direct costs to the issuer than a wholly mandatory regime. While a wholly mandatory structure may yield slightly better compliance, its other benefits are uncertain and its costs are likely much higher. I seek to push the boundaries of existing comparative corporate governance scholarship by arguing that the enabling/mandatory dichotomy informs analyses of corporate governance regimes across countries.

Perez on Linkage & the WTO Oren Perez (Bar-Ilan University, Faculty of Law) has posted Multiple Regimes, Issue Linkage and International Cooperation: Exploring the Role of the WTO (University of Pennsylvania Journal of International Economic Law, Spring 2006) on SSRN. Here is the abstract:
    The article questions the validity of the emerging 'linkage narrative'. The notion of linkage seeks to replace the themes of conflict and animosity, which have dominated the 'trade and ...' debate, with a tale of synergy and mutual-support. While the idea that linking distinct regimes, such as the WTO and Multilateral Environmental Agreements, may yield synergistic benefits is intuitively compelling, it also suffers, the article argues, from various blind spots which make its actual feasibility doubtful. The article exposes these blind spots by situating the 'linkage' hypothesis - as it is articulated in the economic and game theory literature - in a richer theoretical framework which recognizes the institutional complexities and ideological divergences that characterize the contemporary international system. It is argued that realizing the synergic potential of cross-regime linkage requires policy makers to develop pragmatic responses to these blind-spots. The article then moves from the theoretical plane into the muddy waters of WTO jurisprudence, discussing how the idea of linkage - in the context of the trade and environment debate - is dealt with under the WTO rulebook and the Doha negotiation processes (commenting also on the results of the Hong Kong summit). The article concludes by outlining several institutional mechanisms which should facilitate the creation of stable and mutually reinforcing links between the trade and environment domains. While the article focuses on the trade-environment nexus, its theoretical insights are relevant to other domains as well.

Mootz on Neitzsche Francis Joseph Mootz III (Pennsylvania State University - The Dickinson School of Law) has posted Responding to Nietzsche: The Constructive Power of Destruktion (Law, Culture and the Humanities, 2006) on SSRN. Here is the abstract:
    As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer's philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche's caustic critical challenges, but that Gadamer's hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche's philosophy, I argue that Gadamer responds to Nietzsche's challenge in a manner that is exemplified in the critical dimensions of legal practice. Using the example of family law that Smith offers, I contend that Smith underestimates the critical and interpretive elements inherent in legal practice and captured in Gadamer's philosophy. I conclude that Gadamer offers a persuasive answer to Nietzsche's challenge.

Wednesday, December 28, 2005
Concerence Announcment: European Socio-Legal Conference
    FIRST EUROPEAN SOCIO-LEGAL CONFERENCE European Ways of Law To be held in Oñati July 6-8, 2005 The title of this conference assumes special European characteristics not only – which is obvious – of law in the books but also of law in action. Styles of regulation, styles of adjudication, the role of the state, as well as legal cultural behaviour may differ considerably from the American way of law or from socio-legal particularities in other world regions. The purpose of the conference is a broad view of the socio-legal enterprise to include law's relations with all the social sciences; a multi-cultural outlook, a strong focus on attracting young researchers and enabling them to meet like-minded scholars, and a contribution to a real strengthening of European identity in socio-legal studies. The emphasis on Europe will be strong but not exclusive: comparisons with non-European legal cultures are welcome and submissions on law and society topics unrelated to the general theme will also be considered. The event will be richer if participants are free to propose papers on topics that go beyond the conference theme and present possibly unexpected developments. The academic responsibility for the event lies with the IISL Scientific Director Volkmar Gessner, assisted by an advisory board: Reza Banakar (Oxford), Joxerramon Bengoetxea (San Sebastián), Anne Boigeol (Paris), Roger Cotterrell (London), Vincenzo Ferrari (Milano), Hakan Hyden (Lund), David Nelken (Macerata), Vittorio Olgiati (Urbino), Stefan Parmentier (Leuven), Grazyna Skapska (Krakow), András Sajo (Budapest), Boaventura de Sousa Santos (Coimbra), Lisa Webley (London), Gerd Winter (Bremen). The IISL as an institution of the Research Committee of the Sociology of Law of the International Sociological Association is committed to global exchanges on the basis of strong local and regional scientific communities. It believes more in informal networks than in formal organisations. There is no intention to foster as a consequence of the conference the creation of formal associations for the sociology of law in Europe or elsewhere. The 2005 conference program - to be developed mainly in reaction to incoming session and paper proposals - will consist of Plenary Sessions with some keynote speakers Featured Sessions organised by the IISL Workshops (organised on the basis of incoming papers) Work in Progress (dissertations, reports on research commissioned by public authorities). Although the official language will be English, sessions may be held in other European languages if a sufficiently large audience can be expected (the papers presented will have to provide an English summary). The Oñati Institute has held big conferences before and has the infrastructure and the experience for organizing them. Only accommodation may become a problem. It can be resolved by early registration of participants. A preliminary program on this webpage will be accessible and updated regularly as soon as the paper and session proposals are coming in. For further information: IISL (Meetings) Antigua Universidad Apartado 28 20560 Oñati (Gipuzkoa) - Spain Tel.: +34 943 71 88 89 Fax: +34 943 78 31 47 E-Mail:

Duncan on Remorseless Children Martha Grace Duncan (Emory University - School of Law) has posted 'So Young And So Untender' Remorseless Children and the Expectations of the Law (Columbia Law Review, Vol. 102, p. 1469, 2002) on SSRN. Here is the abstract:
    A nine-year-old speaks with apparent callousness as he walks by the body of the girl he has killed. A fourteen-year-old jokes about “body parts in her pocket” after bashing in her mother’s head with a candlestick holder. And a fifteen-year-old laughingly names his accomplice “Homicide” after participating in a robbery that culminated in the victim’s death. Seemingly remorseless acts such as these can have a crucial impact on the way a child or adolescent fares in the juvenile justice or criminal system. Yet, when one looks closely at what the courts interpret as indicators of remorselessness - taking into account psychological findings about the developmental stages, sociological theories about the code of the street, and literary portrayals of the paradoxes of the human mind - these indicators often appear ambiguous, the courts’ interpretations problematic. This article employs psychology, sociology, and literature to investigate the expectation of remorse in the juvenile and criminal justice systems. More specifically, it presents seven in-depth case studies of juveniles who were charged with murder or attempted murder and whose apparent lack of remorse played a salient role in the legal process. Through these case studies, the article challenges the law’s assumption that any decent, redeemable person, regardless of age, will exhibit sorrow and contrition after committing a heinous crime. Beyond challenging the courts’ ability to interpret the emotional state of a juvenile, the article questions the validity of remorse as a predictor of future character. Drawing on Biblical and literary examples and the psychoanalytic theory of the superego, the article suggests that remorse, as the most agonizing form of guilt, may actually undermine the ability to “turn one’s life around” and begin anew.

Richman, Weinstock and Mehta on Rockingham County v. Luten Bridge Co. Barak D. Richman , Jordi Weinstock and Jason Mehta (Duke University School of Law , Duke University - School of Law and Harvard University - Harvard Law School) have posted A Bridge, a Tax Revolt, and the Struggle to Industrialize: The Story and Legacy of Rockingham County v. Luten Bridge Co. on SSRN. Here is the abstract:
    Rockingham County v. The Luten Bridge Company is now a staple in most Contracts casebooks. The popular story goes as follows: Rockingham County entered into a contract with the Luten Bridge Company to build a bridge over the Dan River. Shortly after work commenced, the County repudiated the contract. Nonetheless, the Luten Bridge Company continued with its construction project and sued the County for the entire bill. Judge John J. Parker, the long-time chief judge of the Fourth Circuit, ruled in the famous 1929 opinion that the County was liable only for the costs up until the time of breach plus the anticipated profit, a sum of approximately $1,900, and not for the entire bill that was closer $18,000. The case is used to illustrate the "duty to mitigate," where a party to a contract against whom a breach has occurred is obligated to mitigate the damages resulting from that breach In this article, we revisit the history of this famous case. Examining original sources related to the case, the contemporary history, and the lives of those involved, we reveal that the case arose during, and sharply illustrates, Rockingham County's struggle to industrialize. The dispute emerged within a heated tax revolt that pitted the county's farmers against its mill owners and constituted a microcosm of the larger political conflict - endemic throughout North Carolina and the south - over investing in the public improvements necessary to promote industrialization. The Fourth Circuit opinion that transpired from the dispute offers many lessons and insights into the era's history, its legal issues challenges, and the development of the common law. We do our best to bring the rich story to life and to understand its lessons. Section I of the paper documents the case's current importance in contract law, and Section II describes in detail the political and legal fights that culminated in Judge Parker's 1929 opinion. Section III then examines the true contemporary significance of the opinion. We reveal that Judge Parker's real objective was to enable North Carolina counties to enter into enforceable contracts to enable municipal development and facilitate industrialization, and that the ruling on mitigating damages was merely an afterthought. Section IV then examines the process through which the opinion, despite Judge Parker's intents, lost its original significance but later became immortalized to establish the mitigation principle.

Rosenfeld on Derrida's Ethical Turn, Terrorism, and Enlightenment Michel Rosenfeld (Cardozo Law School) has posted Derrida’s Ethical Turn and America: Looking Back from the Crossroads of Global Terrorism and the Enlightenment (Cardozo Law Review, Vol. 27, 2006) on SSRN. Here is the abstract:
    Derrida has denied that he has taken an ethical turn in the 80’s and 90’s. This article argues, however, that Derrida’s deconstruction of the ethical implications of major moral, social or political issues, such as law and justice, friendship, hospitality, forgiveness, the death penalty and most recently global terrorism, does result in an ethical turn. This turn leads Derrida to articulate an ethics of difference which focuses on diversity and the other and America as compared to Europe stands for greater diversity and looms as Derrida’s and Europe’s “other”. In contrast to Derrida’s America is Habermas’s Europe, his Kantian ethics of identity and his clear place in modernism and the project of the Enlightenment. Many, including Habermas have accused Derrida of having repudiated the legacy of the Enlightenment - a serious charge which would make Derrida’s unequivocal condemnation of global terrorism appear as theoretically unfounded. Derrida has rejected this charge and claimed to be a true heir of the Enlightenment taken in its full historical dimension replete with internal contradictions. Moreover, Derrida’s ethical assessment of global terrorism lead him to turn away from America and to return for good shortly before his death to Europe. The article examines Derrida’s claim, traces his intellectual return to Europe, and asseses how his ethics of difference fares as compared to an ethics of identity in dealing persuasively with the ethical issues raised by global terrorism.

Goldberg on Wood v. Lucy, Lady Duff-Gordon Victor P. Goldberg (Columbia Law School) has posted Reading Wood v. Lucy, Lady Duff-Gordon with Help from the Kewpie Dolls on SSRN. Here is the abstract:
    In Wood v. Lucy, Lady Duff Gordon, Cardozo found consideration in an apparently illusory contract by implying a reasonable effort obligation. Unbeknownst to Cardozo, Wood had agreed to represent Rose O’Neill, the inventory of the kewpie doll in an earlier exclusive contract. Wood sued O’Neill two months prior to entering into the Lucy arrangement. That contract included an explicit best efforts clause. The failure to include such a clause in this contract was, quite likely, deliberate, suggesting that Wood was trying to avoid making a binding commitment to Lucy. The paper examines both the kewpie doll and Lucy contract in some detail. It then goes on to argue that the decision’s role in finding consideration is probably minimal–it would be easy enough for the parties to provide an alternative source of consideration if they desired. The mischief of the opinion is its impact on contract interpretation. The UCC and some common law courts have taken to imposing a vague effort standard on promisors, even if there exists an explicit source of consideration.

Tuesday, December 27, 2005
Berman on the End of Conflicts Harold Berman (Emory University - School of Law) has posted Is Conflict of Laws Becoming Passe? An Historical Response (BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY ZUM 70. GEBURTSTAG, Hans-Eric Rasmussen-Bonne, Richard Freer, Wolfgang Lüke, Wolfgang Weitnauer, eds., Verlag Recht und Wirtschaft GmbH, 2005) on SSRN. Here is the abstract:
    Now that virtually all the nations of the world have come together in a world economy and an emerging world society, and universal bodies of law are gradually being created to help support that economy and society, the question has arisen whether the scope of both conflict-of-laws and comparative law will now gradually be substantially reduced. A response to that question raises the further question, what is the basic purpose of conflict-of-laws? Is it to preserve the autonomy of diverse legal systems or is it to help to harmonize them? A historical answer to that question is presented in this short essay. It appears that conflict-of-laws doctrines emerged in the West in the late eleventh and twelfth centuries drawn not, as is usually said, from Roman law but rather from the canon law of the Roman Catholic Church, and that their basic purpose was not primarily to support the reciprocal application of the diverse bodies of law but rather to harmonize the laws of diverse jurisdictions that co-existed in the West. The fact that different results would be reached by the application of one or another body of laws was subordinated to the fact that all the different bodies of law had a common purpose, namely, to achieve justice. Thus conflicts rules were not originally, and should not now be, applied primarily in order to preserve the autonomy of competing laws but primarily in order to achieve common goals of justice.

Gervais on IP, Trade, & Development Daniel J. Gervais (University of Ottawa - Common Law) has posted Intellectual Property, Trade & Development: The State of Play (Fordham Law Review, Vol. 74, pp. 505-535, 2005) on SSRN. Here is the abstract:
    This Article considers, first, available economic, social, and cultural analyses of the impact of intellectual property protection in developing countries. Economics provides a useful set of analytical tools and are directly relevant, in particular since the successfully arranged marriage of IP and trade rules after which it became inevitable that IP rules would be measured using an economic yardstick. The Paper also considers the claim that making proper intellectual property policy is impossible or inherently unreliable because theoretical models are inadequate or valid empirical data unavailable. Against this backdrop, the Article then examines the emergence of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS added a significant level of comfort for multinational corporations deciding when and where to export to new markets or expand research and development efforts. The Article also considers the Doha Ministerial Declaration of November 2001 and follow-up work on access to medicines. In the second Part, this Article discusses recent economic analyses of the impact of IP protection on bilateral trade flows and foreign direct investment (FDI). Wherever possible, lessons about the right level of intellectual protection for developing countries are drawn. Recent efforts in the World Intellectual Property Organization (WIPO) and the WTO are also discussed. In a third and final part, the Article looks at the current quest for a balanced approach and suggests ways in which such a balanced IP regime could be constructed, as part of a broad, knowledge-oriented economic development strategy.

Haynes on Prosecuting Traffickers Dina Francesca Haynes (University of Nevada, Las Vegas - William S. Boyd School of Law) has posted Used, Abused, Arrested and Deported: Extending Immigration Benefits to Protect the Victims of Trafficking and Secure the Prosecution of Traffickers (Human Rights Quarterly, Vol. 26, No. 2, May 2004) on SSRN. Here is the abstract:
    Organized crime rings exploit 700,000 to 4 million new victims of human trafficking each year, often luring them across borders where they are more vulnerable to abuse. Trafficking in Southeastern Europe is a relatively new phenomenon, fueled by the dissolution of the former Soviet Union, as well as the presence of international peacekeepers who have sometimes exacerbated the problem. Both domestic and international anti-trafficking laws, by virtue of their nature as government created legislation, focus largely on a law enforcement agenda, failing to adequately addresess immigration options that could serve to protect the victim and in so doing provide better evidence with which to prosecute the traffickers for their crimes.

Roberts on Jurisdiction Stripping Caprice L. Roberts (West Virginia University College of Law) has posted Jurisdiction Stripping in Three Acts - Three String Serenade (Villanova Law Review, Vol. 51, 2006) on SSRN. Here is the abstract:
    As interbranch tension reaches a fever pitch, legislators seek to tighten screws on the judiciary. Congressional backlash against disfavored court opinions includes threats to impeach judges, establish judicial inspectors general, weaken life tenure, and strip federal jurisdiction over certain constitutional cases. Two current jurisdiction-stripping bills seek to preclude all federal review of the Defense of Marriage Act and recitation of “under God” in the Pledge of Allegiance. The Senate recently approved a third bill that strips military prison detainees such as those at Guantanamo Bay of all but one civilian federal forum. This Article explores separation-of-powers tension through an experiential meditation on a hypothetical conversation involving one representative of each branch of government. In the tradition of Professor Hart’s seminal dialogue, this three-act play, set in a power-broker restaurant, addresses whether Congress possesses plenary power over federal jurisdiction and, if so, the wisdom of exercising it. Where pertinent, the restaurant server, “Vox Populi,” injects an opinion reflecting perspectives of “the people.” The characters engage in precedential battles, play scholarly trump cards, sound predictions of (dire) consequences, employ philosophical theories, and craft real-world solutions. Thematically, each branch constitutes a set of strings that, with the other two branches, forms one guitar-like instrument. One out-of-tune branch ruins the melody of government. If indelicate hands turn the tuners too tight, the strings could snap (i.e., constitutional crisis). The manner in which the branches conduct themselves in crisis moments will leave an indelible mark on the functioning of our democratic government. Thus, each branch must attune itself to the motivations of, and realities faced by, the other branches. All must retune their instrument when intense strife threatens ideal balance.

Monday, December 26, 2005
Weekend Update On Saturday, the Legal Theory Bookworm recommended Democratic Autonomy: Public Reasoning about the Ends of Policy by Henry Richardson, and the Download of the Week was Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis by Peter H. Huang. On Sunday, the Legal Theory Lexicon entry was on Originalism.
Best wishes to everyone for a joyous holiday season!

Meehan on Patentable Subject Matter Dr. Michael Meehan (Stanford Law School) has posted The Handiwork of Nature: Patentable Subject Matter and Laboratory Corporation v. Metabolite Labs on SSRN. Here is the abstract:
    The patent statutes establish that “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof [can be patented.]” Whereas, the wording of the statute is broad, it is nonetheless well-established that mathematical algorithms, laws of nature, natural phenomena, and abstract ideas cannot be patented. The Supreme Court, in interpreting the patent statutes, has consistently held that such discoveries “are not the kind of ‘discoveries’ that the statute was enacted to protect.” In a recent Federal Circuit case, Metabolite Labs., Inc. v. Laboratory Corp. of Am. Holdings, the court held claim 13 of Metabolite’s 4,940,658 patent valid. The claim has two limitations: “[1] assaying a body fluid for an elevated level of total homocysteine; and [2] correlating an elevated level of total homocysteine in said body fluid with a [vitamin B] deficiency . . . .” The Federal Circuit ruled that “[t]he correlating step is a simple conclusion that a [vitamin B] deficiency exists vel non based on the assaying step.” The court also found that every time a doctor orders any total homocysteine level assay, whether it is patented by Metabolite or is part of the prior art, and merely thinks about the natural relationship between elevated homocysteine level and vitamin B deficiencies, she directly infringes claim 13. The Supreme Court has granted certiorari on this case and should overturn the decision. As it stands, the ruling would set a precedent that those who discover laws of nature can obtain patents on methods comprising [1] collecting data related to a law of nature and [2] thinking about the law of nature. Such patents, especially when taken in aggregate, have the potential to stifle the practical application of science. Such a result would be antithetical to the patent system’s goal of promotion of the useful arts. In this paper, I argue that Metabolite’s claim 13 is unpatentable because it is drawn to a law of nature in view of Parker v. Flook and Diamond v. Diehr. I then argue that, even if claim 13 were not a patent on the law of nature, it precludes all practical use of the law of nature and therefore is unpatentable under Gottschalk v. Benson and Diamond v. Diehr. I further argue that claim 13 is unpatentable because it merely claims what the Funk Bros. Seed Co. v. Kalo Inoculant Co. and Diamond v. Chakrabarty courts termed the “handiwork of nature.”

Green on Subsidies & Environmental Norms Andrew James Green (University of Toronto - Faculty of Law) has posted You Can't Pay Them Enough: Subsidies, Environmental Law and Social Norms (Harvard Environmental Law Review, Vol. 30, No. 2) on SSRN. Here is the abstract:
    Governments' choice of instrument to address environmental concerns affects not only the relative prices faced by individuals making choices but also their norms or values. This effect on values is important because some argue that traditional instruments (such as taxes and regulations) are insufficient to address new environmental concerns such as climate change. Instead they argue that individuals must change their values - how they view the environment and its relationship to humans. This paper uses the social norms literature from law and economics to examine the impact of one instrument - subsidies - on values in the context of climate change. Climate change is particularly difficult for social norms to address because of its large number, negative payoff nature. Further, law and economics tends to take values as given and does not fully address the internalization of norms or values. This paper discusses the potential impact of government policies both on norms or values that are externally enforced (such as through reputation) and on internalized norms. It argues that governments should consider the impact of instrument choice on both types of norms or values and that subsidies may have a negative impact on environmental norms or values, depending on how they are implemented.

Oestreicher-Singer and Sundararajan on Valuing Digital Rights Gal Oestreicher-Singer and Arun Sundararajan (New York University - Leonard N. Stern School of Business and New York University - Leonard N. Stern School of Business) have posted Are Digital Rights Valuable? Theory and Evidence from eBook Pricing on SSRN. Here is the abstract:
    The effective management of digital rights is the central challenge in many industries making the transition from physical to digital products. We present a new model that characterizes the value of these digital rights when products are sold both embedded in tangible physical artifacts, and as pure digital goods, and when granting rights permitted by one's digital rights management (DRM) platform may affect the extent of digital piracy. Our model indicates that in the absence of piracy, digital rights should be unrestricted, since a seller can use its pricing strategy to optimally balance sales between physical and digital goods. However, the threat of piracy limits the extent to which digital rights should be granted: the value of digital rights is determined not only by their direct effect on the quality of legal digital goods, but by a differential piracy effect that can lower a seller's pricing power. When the latter effect is sufficiently high, granting digital rights can have a detrimental effect on value -- our model indicates that this kind of effect is more likely to be observed for digital rights that aim to replicate the consumption experience of physical goods, rather than enhancing a customer's digital experience. We test the predictions of our analytical model using data from the ebook industry. Our empirical evidence supports our theoretical results, showing that four separate digital rights each have an economically significant impact on ebook prices, and establishing that the digital rights which aim to replicate physical consumption while increasing the threat of piracy are the ones that have negative impact on seller value. We also show that if the pricing of a digital good is keyed off that of an existing tangible good, optimal pricing changes for the former should be more nuanced, rather than simply mirroring changes in the price of the latter, and we discuss the effect of the technological sophistication of potential customers on optimal pricing and rights management. Our results represent new evidence of the importance of an informed and judicious choice of the different digital rights granted by a DRM platform, and provide a new framework for guiding managers in industries that are progressively being digitized.

Basheer on Baazee Shamnad M. Basheer (University of Oxford - Oxford Intellectual Property Research Centre (OIPRC)) has posted Baazee, Bajaj, and Bailing out the Law (BAAZEE, BAJAJ, AND BAILING OUT THE LAW, Economic Times, February 5, 2005) on SSRN. Here is the abstract:
    With Avinash Bajaj out on bail and an intervening Tsunami, the noise around the Baazee case has all but died out. The issues that it brought into sharp focus however still await resolution - in particular, the issue pertaining to online intermediary liability. We thought this an opportune time to bring back this case into public focus. We noticed that the ‘law’, which for good or for bad, continues to occupy centre stage in this debate has not been articulated clearly enough - and in fact in many instances has been wrongly stated. Writers have either let their emotions get the better of their propensity to objectively lay down the law or have not been bothered with associating themselves with what they consider to be the trivialities of the law. Our task is therefore a fairly modest one - to try and articulate the law in a manner that would provide a decent enough spring board to engage in broader policy debates.

Sunday, December 25, 2005
Legal Theory Lexicon: Originalism
    Introduction There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism"--actually a loosely-knit family of constitutional theories. The idea that courts would look to evidence from the constitutional convention, the ratification debates, The Federalist Papers, and the historical practice shortly after ratification of the Constitution of 1789 (or to equivalent sources for amendments) is an old one. This post provides a very brief introduction to "originalism" that is aimed at law students (especially first-year law students) with an interest in legal theory.
    The Originalist Revival No one scholar or judge can deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. At various points in time, both sides have claimed the upper hand, but at the level of theory, the case for originalism has always been contested.
    Originalism is not an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan's nomination of Robert Bork (an avowed originalist) was one key moment--with his defeat by the democrats seen as a political rejection of originalism. The current Supreme Court has at least three members who seem strongly influenced by originalist constitutional theory--Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas.
    The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. Two developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court--We the People: Foundations, published in 1991. Second, Randy Barnett (along with Richard Epstein, the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists. Ackerman and Barnett represent two trends in originalist thinking: (1) the political orientation of originalism has broadened from conservatives to liberals and libertarians, and (2) the theoretical structure of originalism has morphed and diversified from the early emphasis on "the original intentions of the framers." After the publication of Paul Brest's Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is more likely to hear pronouncements that "we are all originalists, now."
    Original Intentions Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as "intentions," e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality--leading to the conclusion that segregation is unconstitutional--or at a very particular level--in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the "separate but equal" principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles.
    Yet another challenge to original-intent originalism was posed by Jefferson Powell's famous article, The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell's critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating if Powell's historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers' resistance to originalism were quite powerful. Especially important was the idea that "secret intentions" or "hidden agendas" had no legitimate role to play in constitutional meaning. In the end, however, Powell's article actually had the effect of turning originalism in a new direction--from original intention to original meaning.
    Original Meaning The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.
    The concept of original meaning originalism in its modern incarnation has been attributed to Justice Scalia, who is reported to have introduced the idea in a series of lectures in the 1980s; his essay, Originalism, The Lesser Evil, published in 1989, focuses on "original understanding" rather than "original intent." The idea has also been traced to a brief mention in Robert Bork's The Tempting of America, but Bork did not develop the idea extensively. Original-meaning originalism was develped more extensively by Justice Scalia in his opening essay in A Matter of Interpretation. Although the distinction between original meaning and original intent can be found in a variety of early contemporary sources including an article by Robert Clinton in 1987, the systematic development of original-meaning originalism is a relatively recent phenomenon. Original meaning originalism receives its most comprehensive explication and defense in Randy E. Barnett's new book, Restoring the Lost Constitution: The Presumption of Liberty--a systematic development of the original meaning approach and critique of the original intention theory.
    Regime Theory Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted.
    Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s.
    Originalism and Precedent Whither originalism? Given the ups and downs of originalism over the past three decades, making long-term predictions seems perilous indeed. But I will make one prediction about the future of originalism. We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent--both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Already, originalists of various stripes are beginning to debate the role of precedent in an originalist constitutional jurisprudence. Given the conferences and papers that are already in the works, I think that I can confidently predict that the debate over originalism and stare decisis will be the next big thing in the roller-coaster ride of originalist constitutional theory.
    Bibliography This very selective bibliography includes some of the articles that have been influential in the ongoing debates over originalism.
    • Bruce Ackerman, We the People: Foundations (Harvard University Press 1991) & We the People: Transformations (Harvard University Press 1998).
    • Randy Barnett, An Originalism for Nonoriginalists, 45 Loyola Law Review 611 (1999) & Restoring the Lost Constitution (Princeton University Press 2004).
    • Raoul Berger, Government by Judicary (Harvard University Press 1977).
    • Robert Bork, The Tempting of America (Vintage 1991).
    • Paul Brest, The Misconceived Quest for the Original Understanding, 60 Boston University Law Review 204 (1980).
    • Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of the Constitution, 72 Iowa L. Rev. 1177 (1987).
    • Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Northwestern Univeristy Law Review 226 (1988)
    • Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).
    • Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989)
    • Antonin Scalia, A Matter of Interpretation (Princeton University Press 1997)
    • Lawrence Solum, Originalism as Transformative Politics, 63 Tulane Law Review 1599 (1989).
    • Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas 1999).

Saturday, December 24, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Democratic Autonomy: Public Reasoning about the Ends of Policy by Henry Richardson. Here's a blurb:
    What would our decision-making procedures look like if they were actually guided by the much-discussed concept of "deliberative democracy"? What does rule by the people for the people entail? And how can a modern government's reliance on administrative agencies be reconciled with this populist ideal? What form must democratic reasoning take in the modern administrative state? Democratic Autonomy squarely faces these challenges to the deliberative democratic ideal. It identifies processes of reasoning that avert bureaucratic domination and bring diverse people into political agreement. To bridge our differences intelligently, Richardson argues, we cannot rely on instrumentalist approaches to policy reasoning, such as cost-benefit analysis. Instead, citizens must arrive at reasonable compromises through fair, truth-oriented processes of deliberation. Using examples from programs as diverse as disability benefits and environmental regulation, he shows how the administrative policy-making necessary to carrying out most legislation can be part of our deciding what to do. Opposing both those liberal theorists who have attacked the populist ideal and those neo-republican theorists who have given up on it, Richardson builds an account of popular rule that is sensitive to the challenges to public deliberation that arise from relying on liberal constitutional guarantees, representative institutions, majority rule, and administrative rulemaking. Written in a nontechnical style and engaged with practical issues of everyday politics, this highly original and rigorous restatement of what democracy entails is essential reading for political theorists, philosophers, public choice theorists, constitutional and administrative lawyers, and policy analysts.

Download of the Week The Download of the Week is Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis by Peter H. Huang. Here is the abstract:
    This Article advocates that regulators should go beyond cost-benefit analysis to analyze process concerns and emotional impacts of alternative policies. This Article analyzes such affective benefits as investor confidence, faith, and trust in securities markets, and such affective costs as depression, financial anxiety, and investment stress, all of which non-affective cost-benefit analysis fails to sufficiently address. This Article also examines a number of general conceptual and measurement issues regarding affective benefits and costs. This Article focuses on how such issues arise with such regulations as mandatory securities disclosures; gun-jumping rules for publicly registered offerings; financial education or literacy campaigns; statutory or judicial default rules and menus; and statutes that provide for continual reassessment and revision of regulation. All these regulations affect investor sentiment and thus reinforce how and why incorporating affect into cost-benefit analysis enhances financial and securities regulation.

Friday, December 23, 2005
Macklin on the Safe Third Country Agreement Audrey Macklin (University of Toronto - Faculty of Law) has posted Disappearing Refugees: Reflections on the Canada-US Safe Third Country Agreement (Columbia Human Rights Law Review Vol. 36, pp. 365-426, 2005) on SSRN. Here is the abstract:
    Refugees are vanishing from the territory of wealthy industrialized nations. I do not mean that refugees are literally disappearing. Despite the best efforts of western governments to deter them, thousands of asylum seekers do manage to arrive and lodge refugee claims each year. I refer here not to the legal and material reality of refugees, but rather to the erosion of the idea that people who seek asylum may actually be refugees. This dispiriting turn in public sentiment is enabled by a series of legal and popular conjunctions that produce what I call the discursive disappearance of the refugee.This erasure performs a crucial preparatory step toward legitimating actual laws and practices that attempt to make them vanish in reality. While such policies can never entirely succeed in preventing entry, they may reduce numbers, and they can and do consign a growing proportion of entrants to the illegal category. This article explores one such legal instrument designed to constrain the movement of asylum seekers, namely the Canada-U.S. Safe Third Country Agreement (Agreement). The Agreement was negotiated by Canada and the United States as part of a package of post-9/11 measures, is presented as furthering security, and is modeled on the Dublin Convention (now the Dublin II Regulation) of the European Union. It requires asylum seekers to lodge their refugee claims in the first country of arrival. In other words, asylum seekers on the U.S. side of the border who are attempting entry into Canada will be deflected back to the United States and vice versa. I will use the preamble to the Agreement to illustrate how the legal text tacitly profits from the popular blurring of asylum seekers and ‘illegals’. I will also consider the extent to which the Agreement is likely to advance the principles and objectives attributed to it.

Horwitz on Blogs and the Law Paul Horwitz (Southwestern University School of Law) has posted Or of the [Blog] on SSRN. Here is the abstract:
    This paper, a contribution to a symposium on blogs and the law, examines the legal and constitutional status of blogs. Specifically, it offers three ways of looking at the relationship between blogs and the Press Clause - and, not incidentally, of looking at the Press Clause itself. First, drawing on recent historical work, I suggest that we might view the Press Clause through either the free press or open press models that historically have applied to that provision. Viewing the Press Clause through the open press model makes a home for blogs in the Press Clause, but dilutes the content of the rights that might be available, for blogs or anyone else, under the Press Clause. Second, I suggest that we might view the Press Clause from a functional perspective, protecting those activities that are at the heart of what we consider to be the social value of journalism. This approach does manage to give some content to the press right, and to extend it to journalists working in the old and new media alike; but it fails to fully capture the qualities that we value in either the established press or the blogosphere. Finally, I argue that we might view the Press Clause specifically, and the First Amendment generally, in institutional terms, identifying those speech institutions that contribute in unique and important ways to public discourse and granting them considerable autonomy to act according to the norms and practices that define and give value to each First Amendment institution. Under this approach, both the established news media and the blogosphere may find substantial protection under the Press Clause, although the content of the rights available to each institution will be different, based on the distinct nature of each institution. I argue that this approach, although in some ways it may appear to be the most radical of the three visions of the Press Clause I offer, is both normatively attractive and closer to current First Amendment doctrine than one might assume. Ultimately, although my conclusions differ significantly from his, I suggest that there may yet be life in the arguments made by Justice Stewart in his famous article on the Press Clause.

Donohue & Wolfers on Empirical Evidence in the Death Penalty Debate John J. Donohue III and Justin Wolfers (Yale Law School and University of Pennsylvania - Business & Public Policy Department) have posted Uses and Abuses of Empirical Evidence in the Death Penalty Debate (Stanford Law Review, Vol. 58, December 2005) on SSRN. Here is the abstract:
    Does the death penalty save lives? A surge of recent interest in this question has yielded a series of papers that purport to show robust and precise estimates of a substantial deterrent effect of capital punishment. We assess the various approaches that have been used in this literature, testing the robustness of these inferences. Specifically, we start by assessing the time series evidence, comparing the history of executions and homicides in the United States and Canada, and within the United States, between executing and non-executing states. We analyze the effects of the judicial experiments provided by the 1972 Furman and 1976 Gregg decisions and assess the relationship between execution and homicide rates in state panel data since 1934. We then revisit the existing instrumental variables approaches and assess two recent state-specific execution moratoria. In each case, we find that previous inferences of large deterrent effects based upon specific samples, functional forms, control variables, comparison groups, or IV strategies are extremely fragile and that even small changes in specifications yield dramatically different results. The fundamental difficulty facing the econometrician is that the death penalty - at least as it has been implemented in the United States - is applied so rarely that the number of homicides that it can plausibly have caused or deterred cannot be reliably disentangled from the large year-to-year changes in the homicide rate caused by other factors. As such, short samples and particular specifications may yield large but spurious correlations. We conclude that existing estimates appear to reflect a small and unrepresentative sample of the estimates that arise from alternative approaches. Sampling from the broader universe of plausible approaches suggests not just reasonable doubt about whether there is any deterrent effect of the death penalty, but profound uncertainty - even about its sign.

Maillard on the Pocahontas Exception Kevin Noble Maillard (Syracuse University College of Law) has posted The Pocahontas Exception: American Indians and Exceptionalism in Antimiscegenation Law on SSRN. Here is the abstract:
    This article addresses the treatment of Native American ancestry as a curious exception to the threat of racial impurity. Virginia’s Racial Integrity Act of 1924 aimed to prevent all interracial marriages in the state between white and nonwhite persons. This antimiscegenation statute sought to eradicate stealth intrusions of tainted blood into the white race, which proponents believed to be threatened “by the quagmire of mongrelization.” Exempted from this racial policing regime were those influential whites, the “First Families of Virginia,” who proudly claimed Native American ancestry from Pocahontas. For a statue with racial purity as its obsession and mantra, how does this exceptionalism hold? Why would Native American ancestry, as opposed to others, pass as acceptable nonwhite blood and good law? Even in our contemporary era, why do claims of the “Cherokee Princess Grandmother” not invoke multiraciality? This disparity calls for a critical inquiry of the miscegenistic exceptionalism accorded to American Indians. With increasing numbers of Americans freely and lately claiming Native ancestry, we may ask why such affirmations do not meet the triumvirate of resistance, shame, and secrecy that regularly accompanies findings of partial African ancestry. This paper contends that antimiscegenation laws relegate Indians to existence only in a distant past, creating a temporal disjuncture to free Indians from a contemporary discourse of racial politics. I argue that such exemptions assess Indians as abstractions rather than practicalities. These practices bifurcate treatments of Indian blood, either essentializing a pre-modern and ahistorical culture, or trivializing this ancestry as inconsequential ethnicity.

Thursday, December 22, 2005
Koplow on Lethal Weapons David A. Koplow (Georgetown University Law Center) has posted Tangled up in Khaki and Blue: Lethal and Non-Lethal Weapons in Recent Confrontations (Georgetown Journal of International Law, Vol. 36, p. 703, 2005) on SSRN. Here is the abstract:
    Too often, military and law enforcement authorities have found themselves constrained by inadequate weaponry: the tools available to them, in addressing confrontations with entrenched opponents of various sorts, are either too weak (not sufficing to disarm or defeat the enemy) or too strong (generating unacceptable “collateral damage” in harming innocent people or property). An emerging category of “non-lethal weapons” carries promise for resolving this dilemma, proffering deft new capabilities for disabling, dissuading, or defeating opponents without inflicting death or permanent injury. Some primitive non-lethal weapons (such as truncheons, tear gas, and water cannon) have long been staples in the inventories of police and military forces in the United States and other countries. More sophisticated options (e.g., electronic stun guns or pepper spray) are becoming more common and are increasingly employed in a variety of law enforcement and security situations. Most dramatically, an array of much more sophisticated technologies (including directed energy beams, calmative chemicals, and foam sprays that seal buildings or make an area impassively slippery) are being developed, and could emerge for use by soldiers and police in the near future. These augmented capabilities carry both immense promise and grave risks: they expand the power of law enforcement and military units, enabling them to accomplish assigned missions with greater finesse and reduced casualties. But they may also be misused, they may proliferate to malign applications, and they may inspire leaders to over-rely upon a myth of “bloodless combat.” This article explores the emerging world of non-lethal weapons by examining a series of case studies – recent real-world scenarios from three diverse confrontations around the world in which the availability of a modern arsenal of non-lethal weapons might have made a difference, enabling a more successful outcome in the face of deeply entrenched opposition.

Gibbons & Grabau on Linguistic Minorities Llewellyn Joseph Gibbons and Charles M. Grabau (University of Toledo - College of Law and Independent) has posted Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation (New England Law Review, Vol. 30, No. 227, 1996) on SSRN. Here is the abstract:
    The trial judge has the duty to supervise and conduct judicial proceedings so as to afford all parties a fair and impartial trial to the end that justice may be served. Courtsand scholarly commentators recognize that inadequate or improper court interpretation creates problems of constitutional dimensions.Often some parties are denied a fair and impartial trial because judges are either insensitive to the necessity of a qualified court interpreter to protect the rights of a non-English speaker - a linguistic minority - or act as if they have no control over the interpreter, and consequently over the proceeding. While the focus of this article is on the use of court interpreters in a criminal proceeding, the principles discussed and the suggestions made are generally applicable to any civil or administrative proceeding requiring an interpreter. This article will discuss the statutory and constitutional rights of defendants and witnesses to have access to a court interpreter, court interpreter qualifications, ethical issues in court interpreting, and some common problems that frequently occur during judicial proceedings. Throughout the article there are suggestions that will facilitate the proper use of court interpreters. The article concludes with a recommendation for increased awareness by judges, attorneys, and other participants in the legal system of the unique role a professional court interpreter serves in promoting equal access to the courts, and a recommendation that states adopt uniform court interpreter certification programs.

Drobac on Adolescent Consent Jennifer Ann Drobac (Indiana University School of Law - Indianapolis) has posted 'Developing Capacity': Adolescent 'Consent' at Work, at Law, and in the Sciences of the Mind (Journal of Juvenile Law & Policy, Vol. 10, No. 1, 2006) on SSRN. Here is the abstract:
    No national consensus exists concerning adolescent capacity to consent to sex. The law gives differing legal significance to adolescent “consent” to teen-adult sex depending upon a variety of factors. In response to an increase in teen sexual harassment cases, this Article examines three subject areas that should inform the debate over the actual meaning of adolescent consent: adolescent development, adolescent sexuality, and child/adolescent sexual abuse. First, new neuroscientific and psychosocial science data suggest that adolescent physical and psychosocial development continue into the third decade of life. Studies reveal that adolescents’ activities influence their physical brain development and growth. In other words, adolescents “hard-wire” their experiences into their brains. Second, statistics regarding adolescent sexuality indicate that teens are having sex that is not always completely voluntary. Moreover, parents are often unaware that their children are having sex. Finally, evidence demonstrates that child sexual abuse can permanently and physically disable youth. This Article suggests that the new scientific and statistical evidence should prompt law reform pertaining to teen capacity and consent. It concludes that while adolescents need to exercise their decision-making skills as they mature, they still need protection from adult sexual predators. As the Supreme Court’s recent decision in Roper v. Simmons suggests, we should not presume full capacity where science indicates adolescents are immature and still developing capacity. This Article recommends, in particular, that sexual harassment law should be revised to make teen consent to workplace sex with an adult supervisor voidable by the minor. Courts should find teen-adult sex unwelcome as a matter of law, when the minor alleges sexual harassment. This Article recommends a strict liability civil response to teen sexual harassment, whether or not the teenager once consented to sex with the adult supervisor.

Huang on Cost-Benefit Analyhsis in Financial Regulation Peter H. Huang (Temple University - James E. Beasley School of Law) has posted Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis on SSRN. Here is the abstract:
    This Article advocates that regulators should go beyond cost-benefit analysis to analyze process concerns and emotional impacts of alternative policies. This Article analyzes such affective benefits as investor confidence, faith, and trust in securities markets, and such affective costs as depression, financial anxiety, and investment stress, all of which non-affective cost-benefit analysis fails to sufficiently address. This Article also examines a number of general conceptual and measurement issues regarding affective benefits and costs. This Article focuses on how such issues arise with such regulations as mandatory securities disclosures; gun-jumping rules for publicly registered offerings; financial education or literacy campaigns; statutory or judicial default rules and menus; and statutes that provide for continual reassessment and revision of regulation. All these regulations affect investor sentiment and thus reinforce how and why incorporating affect into cost-benefit analysis enhances financial and securities regulation.

Wednesday, December 21, 2005
Hatcher on Anime Online Jordan S. Hatcher (University of Texas at Austin) has posted Of Otaku and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law (Sript-ed, Vol. 2, No. 4, 2005) on SSRN. Here is the abstract:
    The advent of digital technology and increased global connectivity has, to put it mildly, caused some ripples for the entertainment industry specifically and copyright law generally. In the aftermath, many are searching for new ways to incorporate the benefits of digital copies and the internet while minimizing the harms. To some, the anime industry and its fans offer examples of how an industry can benefit and even grow from allowing copyright infringement. This article examines the anime industry in-depth with this suggestion in mind and places the industry among current copyright policy debates, such as those suggested by Lawrence Lessig.

GIbbons on Naughty Bytes Llewellyn Joseph Gibbons (University of Toledo - College of Law) has posted Digital Bowlderizing: Removing the Naughty Bytes (Michigan State Law Review, Vol. 167, 2005) on SSRN. Here is the abstract:
    During the Victorian era, the prevailing delicacy of the age inspired Dr. Thomas Bowdler and his sister to edit Shakespeare's plays to make them suitable for 'family reading'. All off-color jokes and sexual matter were removed. The word bowdlerize entered the language as a synonym for militant prudery. Luckily for Dr. Bowdler and his sister, the works of Shakespeare were clearly in the public domain. The modern Dr. Bowdlers and their accomplices do not share Dr. Bowdler's luck, however. When they abridge modern digital works to remove content that is offensive to the conscience of their constituencies, their reward for this public service is allegations of, and possible liability for, copyright infringement. Other modern Bowdlers modify software by deleting portions of code to add new capabilities. These deletions are often only shocking to the artistic license or the pocketbook of the copyright owner. Yet, these deletions convey significant advantages to the user or consumer of bowdlerized works. These technologies not only support militant prudery, but they also may add new functionality and capabilities that expand consumer choice. The legal rights being asserted by copyright owners represent a common threat to the use of copyrighted works in the private sphere. Digital bowdlerization makes available works inherent in cultural literacy to all, regardless of age or delicacy of conscience.

Shepherd on Fee Shifting George B. Shepherd (Emory University School of Law) has posted The Impacts of the European Rule for Fee-Shifting on Litigation Behavior (BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY ZUM 70. BEBURTSTAG, Hans-Eric Rasmussen-Bonne, Richard Freer, Wolfgang Luke and Wolfgang Weitnauer, eds., Verlag Recht und Wirtschaft GmbH, 2005) on SSRN. Here is the abstract:
    In honor of the international range and sophistication of Peter Hay's scholarship, this essay examines the impact of an important procedural rule that differs in Europe and the United States: shifting of attorneys fees in litigation. Existing studies suggest that, compared to a regime of no fee-shifting as in the United States, fee-shifting will have an ambiguous affect on the amount of litigation. In contrast, my analysis suggests that fee-shifting as actually practiced in many European countries will tend unambiguously to reduce the amount of litigation. It appears that actual experience in European courts confirms this theoretical prediction.

Call for Papers: Action, Ethics, and Responsibility
    9th annual Inland Northwest Philosophy Conference Topic: Action, Ethics, and Responsibility Dates: March 31-April 2, 2006 Location: Moscow, ID & Pullman, WA The Inland Northwest Philosophy Conference is a topic-focused, interdisciplinary conference, co-sponsored by the Philosophy Departments at the University of Idaho and Washington State University. Keynote Speaker: Frances Kamm, Harvard Other participants include Robert F. Allen, Hilary Bok, Randolph Clarke, John Martin Fischer, Caspar Hare, Elizabeth Harman, Sarah McGrath, Alfred Mele, Michael Moore, Derk Pereboom, Paul Russell, Carolina Sartorio, Saul Smilansky, Angela Smith, Peter van Inwagen, David Widerker, and David Zimmerman. Essays of up to 12 double-spaced pages in length (30-40 minutes reading time) will be accepted until January 10, 2006. Please send one electronic copy (standard word processing program) to and two hard copies of your submission to the following address: Inland Northwest Philosophy Conference Department of Philosophy University of Idaho Moscow, ID 83844-3016 Please prepare submissions for blind review. Individuals will be notified of decisions regarding submissions in February. Accepted papers will be eligible for publication in volume seven of Topics in Contemporary Philosophy, an edited volume to be published by the MIT Press, pending editorial review. For information about the series, please visit Graduate students and individuals in other disciplines are welcome to submit essays. In addition, there will be a session devoted to undergraduate work on this topic; please mention this to interested undergraduates. Chairs and commentators are also needed. If you are interested, please indicate areas of competence. Additional information about this conference can be obtained at our website:

Tuesday, December 20, 2005
H.L.A. Hart Fellowships at Oxford
    Applications are now open for the 2006-7 H.L.A. Hart Visiting Fellowships at the Centre for Ethics and Philosophy of Law in Oxford. The CEPL website is The fellowship advert is at
      The Oxford Centre for Ethics and Philosophy of Law (CEPL) invites applications for up to four short-term HLA Hart Visiting Fellowships to be held at University College, Oxford, during the academic year 2006-7. CEPL was founded in 2002 as a collaboration between three neighbouring colleges of the University of Oxford (Corpus Christi College, Merton College, and University College). It exists to encourage and support advanced work in moral, political, and legal philosophy, not only in Oxford but also nationally and internationally. CEPL occupies attractive shared premises in Merton Street, in the heart of the University’s historic centre, next to the University’s Philosophy Faculty and Library. More detailed information about CEPL is available on its website at CEPL’s HLA Hart Visiting Fellowship Scheme is aimed at philosophers on sabbatical leave from other institutions who wish to spend a period of time working in Oxford, normally for the duration of one extended university term (up to eleven weeks), although consideration will also be given to applications for Fellowships spanning two consecutive terms. The Oxford terms are known as Michaelmas (early October to mid-December), Hilary (early January to late March), Trinity (mid-April to end June). The Long Vacation starts in early July, until late September, and applicants should bear in mind that during this period there are few academic events. The Fellowships are unsalaried, but attract a housing allowance of up to £800 per calendar month, depending on circumstances. Successful applicants will be provided with an attractive office in the Centre. They will also enjoy full use of University College’s nearby academic and social facilities, on the same basis as other College Fellows, including meals at common table. The College and the Centre will normally have just one Visiting Fellow in residence at any one time, but special arrangements may be possible for those working on joint projects, or in other exceptional circumstances. Visiting Fellows are expected to engage in advanced philosophical work in Oxford during the period of their Fellowship, and to participate in the common academic life of the legal, political and moral philosophy communities, as appropriate. CEPL welcomes applications from philosophers at a relatively early stage of their careers as well as from senior and well-established philosophers. Applicants should send a brief CV, a statement of the research plan to be pursued during the period of the Fellowship, details of the term(s) which the applicants would like to spend in Oxford (Michaelmas, Hilary, Trinity, Long Vacation), and the names and contact details of two academic referees to the Academic Administrator, University College, Oxford, OX1 4BH (tel: +44 1865 286565, fax +44 1865 276790; email to reach her by Wednesday 18 January 2006. Candidates should ask their referees to write to the Academic Administrator by the same date. Applicants and their referees are encouraged to submit all material electronically to the dedicated email address Informal enquiries from those interested in Visiting Fellowships may be directed to Professor John Gardner ( or Professor John Broome (

Call for Papers: Philosophy & Cognitive Science
    CALL FOR PAPERS & LAST ANNOUNCEMENT XVI Inter-University Workshop on Philosophy and Cognitive Science Invited Speaker: Richard Moran (Harvard University, USA) Valencia, Spain. March 27th-29th, 2006 PRESENTATION The Inter-University Workshop on Philosophy and Cognitive Science was created in 1989 with the aim of enhancing the development of original research in philosophical questions related to the empirical research in cognitive science. Philosophical discussions encouraged by this workshop have focused on problems in philosophy of mind, philosophy of language and epistemology. The workshop is hosted by a different Spanish university each year and is organized with the support of the Spanish Society of Analytical Philosophy (SEFA). The workshop tries to make easier the incorporation of young researchers to these areas of debate by facilitating the contact with prominent philosophers. These are invited to give three lectures during the workshop; about ten other people are invited to discuss different aspects of his/her work with contributed papers blindly reviewed by the scientific committee of the workshop. During the last 14 years, influential philosophers such as Daniel Dennett, Jerry Fodor, Fred Dretske, Ruth Millikan, Tyler Burge, John Searle, Jaegwon Kim, Christopher Peacocke, François Récanati, Barry Stroud, John McDowell and Robert Brandom have been invited to the workshop. The 16th edition of the Workshop will be held in the University of Valencia, organized by the Phronesis Group. The invited speaker on this occasion will be the American philosopher Richard Moran (Harvard University), who has published papers on metaphor, on imagination and emotional engagement with art, and on the nature of self-knowledge. A book Authority and Estrangement: An Essay on Self-Knowledge, was published by Princeton University Press in 2001. Recent publications include "The Expression of Feeling in Imagination", Philosophical Review 103 (1994), pp. 75-106; "Interpretation Theory and the First-Person", Philosophical Quarterly 44 (1994), pp. 154-73; "Self-Knowledge, Discovery, Resolution, and Undoing", European Journal of Philosophy 5 (1997), pp. 141-61; and "The Authority of Self-Consciousness", Philosophical Topics, 1999-2000. CALL FOR PAPERS The organizing committee invites the people interested in those topics discussed in R. Moran's work to submit his/her contributions. Preferably, complete papers, though the submission of long abstracts (not less than 1500 words) will also be accepted for review. Each submission will be sent for blind selection to two members of the Scientific Committee. The deadline for the submission of the papers is January 10th, 2006. The program of the workshop will be published in this web around March 1st, 2006. The organization expects to be able to cover accommodation and boarding expenses of all speakers. CORRESPONDENCE AND SUBMISSIONS
      Josep E. Corbí Manolo Garcés José Luis Pérez López
    Address & Phone:
      Department of Metaphysics and Theory of Knowledge Faculty of Philosophy University of Valencia Avda. Blasco Ibañez, 30 E-46010-VALENCIA (Spain) Tel. (34) 963 86 48 48 Fax. (34) 963 86 44 32

Call for Papers: Comparative Law Work in Progress
    Michigan-Illinois Workshop: Comparative Law Work in Progress Announcement and Call for Papers Jacqueline Ross (University of Illinois College of Law) and Mathias Reimann (University of Michigan Law School) are organizing a comparative law workshop to discuss work in progress. This workshop will be established jointly by the University of Illinois College of Law and the University of Michigan Law School and will be co-sponsored by the American Society of Comparative Law. There is no regular opportunity for comparative law scholars in the United States to meet and discuss their work in any depth. The scholarly programs of the meetings of the American Society of Comparative Law are chosen and organized by the respective host schools and aim at the presentation of finished papers on a given topic. While there is some opportunity to present work in progress, there is little opportunity for sustained discussion. The meetings of the Comparative Law Section at the AALS Conference each January are also dedicated to a specific topic and usually exhaust themselves in the presentation of papers with little substantive discussion. There is a thus a need for a forum in which comparative law work in progress can be explored among colleagues in a serious and thorough manner that will be truly helpful to the respective authors. The Workshop: Comparative Law in Progress will fill that need. It will involve up to six papers during a two-day period. If more than six papers are submitted for discussion, the organizers will jointly decide which ones to accept, giving preference to younger scholars. The participants will consist of the respective authors, one commentator on each paper, faculty members of the host institution, particularly those with expertise in comparative law and research, and others interested in attending. The overall group will be kept small enough to sit around a large table and to allow serious discussion (20 people maximum). The papers will not be presented at the workshop. They will be distributed two weeks in advance and every participant must have read them before attending the meeting. The commentator will present a 10 to 15 minute introduction and critique, leaving at least one hour for discussion. There are no plans to publish the papers. Instead, it is up to the authors to seek publication if, and wherever, they wish. The first Workshop will take place on April 21-23, 2006 at the University of Michigan Law School. It will be an experiment. If it works as intended, it will then take place on a regular basis, once or twice a year, depending on the amount of interest. For the time being, its venue will alternate between the University of Michigan Law School in Ann Arbor and the University of Illinois College of Law in Champaign. The Workshop will be funded by the host school and by the American Society of Comparative Law. Authors of papers and commentators will be reimbursed for their travel expenses and accommodation up to $ 600.00. Interested authors should submit papers either to Jacqueline Ross ( or Mathias Reimann ( by February 15, 2006. "Work in progress" means scholarship that has reached a stage at which it is substantial enough to merit serious discussion and critique but that has not yet appeared in print (although it may have been accepted for publication). It includes law review articles, book chapters or outlines, substantial book reviews, and other appropriate genres. Our objective is not only to provide an opportunity for the discussion of scholarly work but also to create an opportunity for comparative lawyers to get together for two days devoted to nothing but talking shop, both in the sessions and outside. We hope that this will create synergy that fosters more dialogue, cooperation, and an increased sense of coherence in a discipline badly in need of it. Jacqueline Ross Mathias Reimann

Monday, December 19, 2005
Fellowship Announcement: Health Policy at Harvard Harvard Law School announced a new fellowship program at Harvard in Health Law Policy, Biotechnology and Bioethics? We're planning to have 8 fellowships, which will be for staggered terms of 2 years, $60,000/yr, and require no teaching obligations. It is part of the new Petrie-Flom Center at Harvard Law School. The program is designed for young scholars to develop the scholarly corpus they need to maximize their odds of success on the entry-level market in health law, which is a market with marked undersupply of aspiring legal academics relative to the demand. For details see

Rappaport on Breyer's Active Liberty Michael Rappaport has a review of Justice Breyer's on Tech Central. Here's a taste:
    Interestingly, Breyer’s tour fails to make one important stop -- his majority opinion for the Court in Stenberg v. Carhart, which struck down a ban on partial birth abortions. One might argue that Stenberg is inconsistent with Breyer’s active liberty -- purposivist approach, because the opinion protects what seems to be a personal decision unrelated to political participation. But perhaps Breyer can avoid this inconsistency. Breyer might argue that terminating pregnancies is necessary for women to work and thereby to participate fully in politics. Alternatively, Breyer never says that active liberty is the only important value. So he might argue that another purpose of the Fourteenth Amendment is to protect individual rights, which in the modern world requires giving those rights a modern interpretation. In other words, Breyer’s approach might be so flexible that there is no decision, including Stenberg, that it can’t be made consistent with. Having articulated this extremely flexible interpretive approach, one would expect that Breyer would defend it against objections. It is here where Breyer’s book is particularly unsuccessful. One major problem with the vast discretion that Breyer confers on judges is that it is inconsistent with the active liberty that is the primary concern of his book. Judicial activism is generally thought to undermine democracy, because it deprives the people of their ability to set policy through their representatives -- either through statutes or through constitutional amendments. Even if a statute or constitutional provision is currently unpopular and needs revision, the Court’s decision to update it will deprive the people of the opportunity to do the updating and they are likely to update it in a different way than the Court does.

Hasen on the Texas Redistricting Case Check out Hold the Line; The Texas redistricting case is not a winner for Democrats by election-law superblogger Rick Hasen. Here's a taste:
    It is hard to believe that even an activist Supreme Court has the stomach to declare all legislatively enacted redistricting unconstitutional, so we might try coupling a "bad intent" test with a "bad effects" test: For example, if a state contains a majority of Democrats but keeps sending many more Republicans than Democrats to Congress, that might raise a constitutional problem. In those cases, the legislature was not merely acting in its own interest, but had also skewed the results. The trouble with applying this test in the Texas case is that there do appear to be more Republicans than Democrats in the state. The argument applied to Texas would have to be extended to something like a requirement of rough proportionality between a party's support and the shape of the congressional delegation: Texas deserves a majority Republican delegation, the argument goes, but not this big a majority.

Sunday, December 18, 2005
Legal Theory Lexicon: The Rule of Law
    Introduction I'm just back from two weeks in China and Singapore, where I gave a paper that focused on the relationship between legal formalism, legal realism, and the rule of law. And the "rule of law" is the topic of this week's installment in the Lexicon.
    This installment of the Legal Theory Lexicon provides a very short introduction to the idea of "the rule of law," aimed as usual at law students (especially first year law students) with an interest in legal theory.
    What is the Rule of Law? The ideal of the rule of law, which can be traced back at least as far as Aristotle, is deeply embedded in the public political cultures of most modern democratic societies. For example, the Universal Declaration of Human Rights of 1948 declared that "it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law." Although the ideal of the rule of law has been criticized on the ground that it is an ideological construct that masks power relationships, even Marxist critics may acknowledge that observance of the ideal may curb abuses by the ruling class.
    What is the ideal of the rule of law? An initial observation is that there are several different conceptions of the meaning of the rule of law. Indeed, the rule of law may not be a single concept at all; rather, it may be more accurate to understand the ideal of the rule of law as a set of ideals connected more by family resemblance than a unifying conceptual structure.
    Dicey's Influential Formulation Historically, the most influential account of the rule of law was offered by A.V. Dicey. His formulation incorporated three ideas:
      (1) the supremacy of regular law as opposed to arbitrary power;
      (2) equality before the law of all persons and classes, including government officials; and,
      (3) the incorporation of constitutional law as a binding part of the ordinary law of the land.
    Rawls on the Rule of Law A contemporary elaboration of the ideal of the rule of law is provided by John Rawls. He defines the rule of law as "the regular, impartial, and in this sense fair" administration of "public rules." In schematic form and with some alterations, Rawls offered the following conception of the rule of law:
      1. The Requirement that Compliance Be Possible. The legal system should reflect the precept that ought implies can.
        a. The actions which the rules of law require and forbid should be of a kind which men can reasonably be expected to do and to avoid.
        b. Those who enact the laws and issue legal orders should do so in good faith, in the sense that they believe "a" with respect to the laws and orders they promulgate.
        c. A legal system should recognize impossibility of performance as a defense, or at least a mitigating circumstance.
      2. The Requirement of Regularity. The legal system should reflect the precept that similar cases should be treated similarly.
        a. Judges must justify the distinctions they make between persons by reference to the relevant legal rules and principles.
        b. The requirement of consistency should hold for the interpretation of all rules.
      3. The Requirement of Publicity. The legal system should reflect the precept that the laws should be public.
        a. The laws should be known and expressly promulgated.
        b. The meaning of the laws should be clearly defined.
      4. The Requirement of Generality. Statutes and other legal rules should be general in statement and should not be aimed at particular individuals.
      5. The Requirement of Due Process. The legal system should provide fair and orderly procedures for the determination of cases.
        a. A legal system ought to make provision for orderly and public trials and hearings.
        b. A legal system ought to contain rules of evidence that guarantee rational procedures of inquiry.
        c. A legal system ought to provide a process reasonably designed to ascertain the truth.
        d. Judges should be independent and impartial, and no person should judge her own case.
      Absent from Rawls's formulation is the notion that the rule of law requires that the government and government officials be subject to the law. Thus, a sixth aspect of the rule of law might be added to Rawls' formulation as follows:
      6. The Requirement of Government under Law. Actions by government and government officials should be subject to general and public rules.
        a. Government officials should not be above the law.
        b. The legality of government action should be subject to test by independent courts of law.
    More can be said about the content of the ideal of the rule of law, but this brief exposition provides sufficient clarity for for this brief introduction.
    The Values Served by the Rule of Law What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot's of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.
    Another way to look at the value of the rule of law is to focus on what the world would be like if there were systematic and serious departures from the requirements of the rule of law. What if the laws were secret? What if officials were immune from the law and could act as they pleased? What the system of procedure were almost completely arbitrary, so that the results of legal proceedings were random or reflected the whims and prejudices of judges? What if some classes of people were above the law? Or if other classes were "below the law" and denied the laws protections? These rhetorical questions are intended to draw out a "parade of horribles" in your imagination. In other words, the rule of law serves as a bulward against tyranny, chaos, and injustice.
    The Rule of Law and Bad Law One final question: "Is the rule of law a good thing, even if the laws are bad, unjust, or in the extreme case evil?" This question is too tough to take on in a systematic way, but here is one helpful thought. In a reasonably just society, one might believe that the rule of law is a good thing, even if some of the laws are bad. Certainty and predictability provide very great goods, which would be undermined if each judge or official picked and chose among the laws, enforcing the ones that the judge thought were good and nullifying the ones the judge thought were bad. But in a thoroughly evil society, the rule of law will be extremely problematic. Even an evil society may benefit from regularity in the enforcement of ordinary laws, but when it comes to horrendously evil laws, anarchy or revolution is likely to be preferable to the rule of law.
    Conclusion Sooner or later most law students run into a reference to "the rule of law," but in my experience, this idea is rarely explained when its introduced. This entry in the legal theory lexicon is designed to give you a fairly solid foundation with respect to the content of the rule of law and to get you thinking about what functions the rule of law serves.

Saturday, December 17, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Essays on Bentham : Jurisprudence and Political Theory by H. L. A. Hart. There is a lot of theoretically important work in this somewhat neglected collection of Hart's essays.

Download of the Week The Download of the Week is Equity Analysis and Natural Hazards Policy by Matt Adler. Here is the abstract:
    What is an “equitable” policy for mitigating the impacts of hurricanes, earthquakes, floods, and other natural hazards? Economists tend to see “equity” or “distribution” as irreducibly political and subjective. But, in truth, equity analysis and cost-benefit analysis are on a par. Both require a normative justification. Moreover, normative argument can help us structure equity analysis, just as it can help structure cost-benefit analysis. This chapter, written for a forthcoming book on natural hazards policy after Katrina, argues that equity is a normative consideration distinct from efficiency or overall well-being. It then argues that equity is: individualistic, not group-based; ex post, not ex ante; that the “currency” for equity consists in the multiple dimensions of well-being, not income or longevity; and that, at a minimum, equity analysis should be concerned to avoid serious deprivations with respect to any well-being dimension. The upshot is an account with a close affinity to an emerging body of scholarship in development economics, inspired by Amartya Sen's work on capabilities and functionings; and a set of concrete recommendations for how equity analysis of natural hazards policy should be structured.
Download it while its hot!

Friday, December 16, 2005
Klerman on Trademark Dilution Daniel Klerman (University of Southern California Law School) has posted Trademark Dilution, Search Costs, and Naked Licensing on SSRN. Here is the abstract:
    Trademark dilution needs to be rethought to ensure that it enhances social welfare. Blurring should only be considered harmful when it increases consumer search costs. The fact that a trademark calls to mind two different products should not itself be considered actionable. Blurring only causes real harm when it interferes with consumers’ ability to remember brand attributes. The Coase Theorem suggests that anti-dilution statutes will not block beneficial, non-competing uses of a mark, because, if transactions costs are low and the use is socially beneficial, the trademark owner will license the use. Unfortunately, the “naked licensing” rule, which forbids unsupervised licenses, adds unnecessary transactions costs and blocks potentially beneficial uses. Some commentators think free riding is or should be the essence of dilution. If free riding causes no harm - no consumer confusion, no blurring, and no tarnishment - then it is socially beneficial and should be allowed.

Wagner on Commons Insurance Wendy E. Wagner (University of Texas at Austin - School of Law) has posted Commons Ignorance: The Failure of Environmental Law to Provide the Information Needed to Protect Public Health and the Environment (Duke Law Journal, Vol. 53, No. 6, p. 1619, April 2004) on SSRN. Here is the abstract:
    One of the most significant problems facing environmental law is the dearth of scientific information available to assess the impact of industrial activities on public health and the environment. After documenting the significant gaps in existing information, this Article argues that existing laws both exacerbate and perpetuate this problem. By failing to require actors to assess the potential harm from their activities, and by penalizing them with additional regulation when they do, existing laws fail to counteract actors' natural inclination to remain silent about the harms that they might be causing. Both theory and practice confirm that when the stakes are high, actors not only will resist producing potentially incriminating information but will invest in discrediting public research that suggests their activities are harmful. The Article concludes with specific recommendations about how these perverse incentives for ignorance can be reversed.

Somek on Misuse of Constitutional Rights Alexander Somek (University of Iowa, College of Law) has posted Equality as Reasonableness: Constitutional Normativity in Demise (THE DARK SIDE OF FNDAMENTAL RIGHTS, A. Sajo, ed., Kluwer, 2006) on SSRN. Here is the abstract:
    The first part of this article is attempt to make sense - from a constitutional perspective - of concepts such as the "abuse" or "misuse" of constitutional rights. It is argued that while the meaning of "abuse" is very much dependent on specific constitutional provisions the notion of "misuse" can be given a more general application. It extends to cases where a misinterpretation of a fundamental rights gives rise to a serious alteration of the separation of powers. The second part of the article offers a case-study of misuse. It affects the equality principle and how it has been transformed by some European courts into an expedient tool for the intuitive assessment of the rationality and reasonableness of legislation. This transformation of the equality principle has serious repercussions for the separation of powers. It invests constitutional courts with virtually unlimited power to invalidate the political choices made by the legislature on the basis of the mere moral intuitions of their members.

Lubben on the Microeconomics of Chapter 11 Stephen Lubben (Seton Hall University - School of Law) has posted The Microeconomics of Chapter 11 and the Irrelevance of Ex Ante Costs on SSRN. Here is the abstract:
    Several recent studies have put the level of professional fees in large chapter 11 cases at about 2.5 percent of assets or less. This compares favorably with other significant corporate transactions. But little attention has been given to the issue of how professional fees are allocated within chapter 11 cases. Examining this issue is important because a significant strain of bankruptcy scholarship is premised on the notion that chapter 11 is excessively expensive, notwithstanding the existing evidence that suggests otherwise. In particular, these theorists employ the long-recognized principle that lenders will recoup anticipated losses through higher ex ante interest rates to support the argument that altering or even replacing chapter 11 will reduce the costs of debt financing and thus promote efficiency. But if most of the supposed costs of chapter 11 are in fact exogenous to the Bankruptcy Code, reductions in the cost of chapter 11 may have only a modest correlation with reductions in the cost of financial distress. This paper thus offers the first look at the intra-debtor distribution of professional fees. I analyze a new sample of almost 4,000 attorney time entries, from more than 30 law firms, in 27 very large chapter 11 cases filed between 2001 and 2003 to look at several basic questions regarding the allocation of attorney’s fees within chapter 11 cases. I find that up to 60% of the professionals fees in a bankruptcy case may be exogenous to chapter 11. I then develop the broader argument that ex ante costs are virtually irrelevant to current discussions of chapter 11.

Huntington on Child Welfare Clare Huntington (University of Colorado School of Law) has posted Rights Myopia in Child Welfare (UCLA Law Review, Vol. 53, 2006) on SSRN. Here is the abstract:
    For decades, legal scholars have debated the proper balance of parents’ rights and children’s rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents’ rights nor children’s rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict rather than collaboration between the state and families. In lieu of a solely rights-based model, this Article proposes a problem-solving model for child welfare and explores one embodiment of such a model, family group conferencing. This Article concludes that a problem-solving model holds significant potential to address many of the profound theoretical and practical shortcomings of the current child welfare system.

Blumn on Public Choice and Public Lands Michael C. Blumm (Lewis & Clark Law School) has posted Public Choice Theory and the Public Lands: Why Multiple Use Failed (Harvard Environmental Law Review, Vol. 18, 1994) on SSRN. Here is the abstract:
    This article applies public choice political theory to public lands decisionmaking and concludes that it explains why multiple-use management, the paradigm for most federal public lands, consistently overemphasizes commodity production at the expense of other values like watershed protection and wildlife preservation. Public choice theory predicts small, well-organized special interests will be able to dominate diffuse, less-invested majorities. Consequently, rent-seeking commodity-based interest groups pressure federal land managers to maintain historic levels of grazing or timber harvest levels in low-visibility administrative decisionmaking under the multiple-use directive. And the lack of meaningful standards in multiple-use statutes means extraordinarily deferential judicial review. The article recommends that Congress discard the existing concept of multiple-use decisionmaking because it produces unbalanced decisions from captured land managers who serve factional interests, and thus undermine the long-term sustainability of public land resources. Instead, Congress should redefine a new concept of multiple-use around Clean Water and Endangered Species Act standards and the fish and wildlife provisions in the National Forest Management Act. Such a redefinition would focus on protecting the most vulnerable public land resources, not those capable of providing economic benefits to a narrow class of rent-seekers.

Morrison on Hamdi Trevor W. Morrison (Cornell University - School of Law) has posted Hamdi's Habeas Puzzle: Suspension as Authorization? (Cornell Law Review, Vol. 91, January 2006) on SSRN. Here is the abstract:
    Although the executive detention of individuals outside the criminal justice system implicates the historical core of the writ of habeas corpus, there persists in this area a remarkable amount of disagreement over the nature of habeas corpus and its place in our constitutional system. This phenomenon is especially evident in Hamdi v. Rumsfeld, the 2003 Supreme Court case involving a challenge to the executive branch's detention, without charge, of a U.S. citizen alleged to be an enemy combatant. The case divided the Court, producing four opinions in all. Two of those opinions - a plurality by Justice O'Connor and a dissent by Justice Scalia - are particularly intriguing, especially when read against one another. Although both opinions adopted positions substantially favoring the alleged enemy combatant, they did so in radically different ways, reflecting starkly opposed visions of habeas corpus and the Suspension Clause, and, more deeply, the nature of the separation of powers in our constitutional system. This article takes up those differences. In particular, I aim to show that although Justice Scalia's dissent has been widely hailed as the most liberty-protective of all the Hamdi opinions, in fact it could, if adopted more broadly, pose a serious threat to the safeguards of liberty built into the law of habeas corpus and the Constitution itself. According to Justice Scalia, the government's only options with respect to U.S. citizen detainees are to charge them criminally, release them, or convince Congress to suspend habeas corpus. The problem, I argue, lies with the suggestion in the third of these options that suspending the writ is necessary and sufficient to authorize otherwise-unlawful detention. I contend that this view is both formally untenable and functionally undesirable. Formally speaking, suspending the writ simply removes a judicial remedy. It does not authorize any executive action that was not already permitted; unlawful detention remains unlawful even after the writ is suspended. Functionally speaking, Justice Scalia's approach requires one branch of government (the judiciary) to be read out of the equation in order for another (the executive) to act. But that is contrary to the basic principle of checks and balances established by the constitutional separation of powers. In contrast, Justice O'Connor's approach preserves a role for all three branches even in times of national security crisis. On one hand, by permitting Congress to authorize the executive branch to engage in extraordinary executive detention, Justice O’Connor embraced a process-based, institutionally oriented approach in the tradition of Justice Jackson's famous concurrence in the Steel Seizure Case. That is, Justice O'Connor adopted a judicial approach that privileges, and largely defers to, the joint action of the legislative and executive branches. On the other hand, Justice O'Connor also preserved for the courts a vital role in ensuring that the executive's use of the authority conferred by Congress comports both with the scope of the statutory grant and with basic constitutional demands. In this respect, her approach combines a general focus on second-order questions of institutional process with an attentiveness to at least some basic, first-order constitutional values. This approach, I argue, is most consistent with the three-branch structure of the Constitution.

Thursday, December 15, 2005
Cotter on Competition and Intellectual Property Thomas F. Cotter (Washington and Lee University - School of Law) has posted The Precompetitive Interest in Intellectual Property Law on SSRN. Here is the abstract:
    The conventional wisdom that antitrust is less tolerant of monopoly than is intellectual property (IP) law is sometimes true, but there is another side of the coin that is less frequently commented upon and that deserves further scrutiny. On occasion, IP law condemns conduct on the part of IP owners - or excuses otherwise infringing activity on the part of IP defendants - expressly for the purpose of promoting competition, even though antitrust law (if it were to apply at all) would not find anticompetitive harm absent a more thorough analysis of whether the antitrust defendant possesses power over a well-defined market. Salient examples include the misuse doctrines in patent and copyright law; some applications of merger and fair use in copyright; and trademark law’s functionality doctrine. In this paper, I develop an explanation for this divergence between antitrust and IP. Specifically, I argue that in some limited contexts the expected social costs (including error costs) of ruling for IP defendants are relatively low in comparison with the expected anticompetitive harm from ruling for IP plaintiffs. As a result, it is sometimes welfare-enhancing for IP courts to be less concerned than antitrust courts about the expected costs of "false positives," that is, cases wrongly decided against the party defending the allegedly anticompetitive conduct. Thus, in an appropriate case courts should deploy IP doctrine to prevent harms that would be deemed unduly speculative, or not cognizable at all, in the analogous antitrust context, including (1) harms stemming from the exercise of small-scale, transitory, or localized market power; (2) harms that are individually of little competitive significance, but which in the aggregate threaten a substantial reduction in consumer welfare; (3) threats to dynamic efficiency stemming from the reduction of competition in innovation markets; and (4) potential reductions in expressive output that, for reasons rooted in the First Amendment, may be qualitatively, but not quantitatively, significant. I further contend, however, that such cases probably are more common in the copyright than in the patent law context, and that even in copyright contexts courts should be cautious about casually inferring anticompetitive harm; but that the analysis provides a rationale for a relatively expansive definition of trademark functionality.

Wiggins on Optimal Consumer Bankruptcy Policy Mary Jo Wiggins (University of San Diego - School of Law) has posted Conservative Economics and Optimal Consumer Bankruptcy Policy (Theoretical Inquiries, 2006) on SSRN. Here is the abstract:
    In this paper, Professor Wiggins explores the relationship between conservative economic theories and major bankruptcy reforms recently enacted by the United States Congress. First, she describes three key components of conservative economic theory as advanced by the Bush administration and conservative scholars. These include: 1) a strong preference for private ordering over public ordering, 2) the promotion of private property as a means to expand personal freedom and liberty, and 3) the encouragement of individual risk internalization. Next, she describes two theoretical components of the new bankruptcy reforms. These include: 1) a preference for creditor collection over debt relief and 2) the promotion of individual risk internalization. Then, Professor Wiggins examines two questions: First, is there meaningful theoretical symmetry between conservative economics and the new bankruptcy law? Second, is there significant operational symmetry between the two? The paper suggests theoretical convergence for two reasons: First, both aim to promote private bargains over administratively adjusted ones. Second, both seek to force individuals to absorb more of the risks of financial decision-making. The paper also suggests, however, that at the operational level, there exists significant divergence between the aims of conservative economics and the predicted consequences of the new law. Professor Wiggins concludes, among other things, that economic conservatives should pay more rigorous attention to personal bankruptcy policy because operational asymmetry between their theories and the new legislation could blunt their ambitious economic agenda for American consumers.

Adler on Equity & Natural Hazards Policy Matthew D. Adler (University of Pennsylvania Law School) has posted Equity Analysis and Natural Hazards Policy (ON RISK AND DISASTER: LESSONS FROM HURRICANE KATRINA, Ronald Daniels, Howard Kunreuther, and Donald Kettl, eds., University of Pennsylvania Press, 2006) on SSRN. Here is the abstract:
    What is an “equitable” policy for mitigating the impacts of hurricanes, earthquakes, floods, and other natural hazards? Economists tend to see “equity” or “distribution” as irreducibly political and subjective. But, in truth, equity analysis and cost-benefit analysis are on a par. Both require a normative justification. Moreover, normative argument can help us structure equity analysis, just as it can help structure cost-benefit analysis. This chapter, written for a forthcoming book on natural hazards policy after Katrina, argues that equity is a normative consideration distinct from efficiency or overall well-being. It then argues that equity is: individualistic, not group-based; ex post, not ex ante; that the “currency” for equity consists in the multiple dimensions of well-being, not income or longevity; and that, at a minimum, equity analysis should be concerned to avoid serious deprivations with respect to any well-being dimension. The upshot is an account with a close affinity to an emerging body of scholarship in development economics, inspired by Amartya Sen's work on capabilities and functionings; and a set of concrete recommendations for how equity analysis of natural hazards policy should be structured.
Adler is a careful and immensely intelligent thinker. This sounds very interesting!

Tsai on Democracy Robert L. Tsai (University of Oregon - School of Law) has posted Democracy's Handmaid (Boston University Law Review, Vol. 86, 2006) on SSRN. Here is the abstract:
    Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this model, metaphors, metonyms, and other idioms serve as integral features of democratic institution-building. An especially resonant metaphor spreads democratic ideology efficiently and aggressively. The composition helps to create the appearance of political rule as continuous and timeless. It also renders law accountable to the people. By reestablishing the terms of community through this language device in the course of litigation and public debate, ordinary citizens can redirect the very path of higher law. In short, popular language legitimates constitutional regimes and builds support among the people themselves.

Nagareda on Choice of Law and the Class Action Fairness Act Richard A. Nagareda (Vanderbilt University School of Law) has posted Bootstrapping in Choice of Law After the Class Action Fairness Act (University of Missouri-Kansas City Law Review, Vol. 74, Winter 2005) on SSRN. Here is the abstract:
    This article will appear in a larger symposium on the twentieth anniversary of the Supreme Court’s decision in Phillips Petroleum Co. v. Shutts. There, the Court famously overturned the application of Kansas substantive law to a nationwide class action brought in Kansas state court concerning a contractual dispute over royalties associated with natural gas leases. In overturning the choice of Kansas law on due process grounds, the Court voiced two concerns: first, concern about potential arbitrariness in the choice made and, second, resistance to what the Court deemed “something of a ‘bootstrap’ argument” - the invocation by the Kansas court of the class-wide nature of the litigation as a consideration in the choice-of-law analysis. Part I of this article situates the anti-bootstrapping stricture in Shutts as the intellectual precursor for the Court’s later encounters with the class action as an engine for law reform in both Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. Amchem and Ortiz contain within them a significant, though largely unarticulated, theory about the limited authority of the class action to achieve law reform. Both decisions embody the proposition that the class action device enjoys no freestanding authority to alter preexisting rights as delineated by substantive law. Part I shows how the anti-bootstrapping stricture in Shutts both anticipates and fits within this broader account of the institutional position occupied by the class action vis-a-vis public legislation. Part II observes that the impulse to use choice of law to drive the certification of nationwide class actions has not ended with Shutts. A small but consequential minority of courts in recent years have certified nationwide classes in consumer litigation based upon the choice to apply a single body of law - this time, the law of the defendant’s principal place of business. Part II focuses on what may well emerge as the trickiest scenario for application of the anti-bootstrapping stricture in the legal world since the enactment of the Class Action Fairness Act (CAFA) in 2005: a nationwide class brought in, or removed to, a federal court sitting in a state where the highest state court has clearly established bootstrapping as part of its choice-of-law principles for consumer class actions. The Court’s 1941 decision in Klaxon v. Stentor Manufacturing Co. directs a federal court in a diversity case to apply the choice-of-law principles of the state in which that court sits. The CAFA, however, offers grounds to deviate from this approach where the applicable state choice-of-law principles encompass bootstrapping. The article develops an argument along these lines grounded in existing Court precedent on the parameters of the Erie doctrine - specifically, the notion of the CAFA as an “affirmative countervailing consideration” that should trump the ordinary application of Klaxon where it would lead to bootstrapping.

Pfaff on Vountary Sentencing Guidelines After Blakely John F. Pfaff (Fordham University - School of Law) has posted The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines on SSRN. Here is the abstract:
    This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v Washington. In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation. For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 28% for violent crimes and 17% for property crimes. By comparison, the analogous results for presumptive guidelines are a 48% drop for violent crimes and a 45% drop for property crimes. For the use of impermissible factors, the results are more ambiguous. Presumptive guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing; due to limitations in the data used for this project, however, it is difficult to draw clear inferences about the welfare implications of the changes with regards to the use of impermissible factors. Furthermore, voluntary guidelines appear to avoid some of the problems associated with other alternatives, such as sentencing juries and the increased use of mandatory minimums. In short, voluntary guidelines appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely.

Wednesday, December 14, 2005
Conference Announcement: Practical Reason at Bowling Green
    Practical Reason A Conference at Bowling Green State University April 7-9, 2006 Speakers include:
      Michael Bratman, Stanford University Chair: Scott Shapiro, University of Michigan Law Stephen Darwall, University of Michigan Chair: Douglas Lavin, Harvard University James Dreier, Brown University Chair: Donald Hubin, Ohio State University Elijah Millgram, University of Utah Chair: Daniel Jacobson, Bowling Green State University Peter Railton, University of Michigan Chair: Justin D’Arms, Ohio State University Joseph Raz, Oxford University/Columbia University Chair: Philip Clark, University of Toronto Michael Smith, Princeton University Chair: Ruth Chang, Rutgers University Gary Watson, University of California, Riverside Chair: Michael Thompson, University of Pittsburgh
    The conference is being organized by David Sobel ( and Steven Wall ( It is sponsored by Bowling Green State University’s Department of Philosophy and by The Social Philosophy and Policy Center. It is free and open to the public. Directions and such will be available on the conference web page:
Fantastic lineup. This looks like it is well worth attending!

Call for Papers: Mackie's Inventing Right and Wrong
    *Call for Papers: Ethical Theory and Moral Practice* Special Edition on John Mackie's "Ethics: Inventing Right and Wrong" Guest Editor: Richard Joyce (ANU) 2007 sees the 30th anniversay of publication of John Mackie's "Ethics: Inventing Right and Wrong". To mark the occasion, ETMP is devoting a special issue of the journal in 2007 to consider aspects of this work and its influence, paying particular attention to Mackie's moral error theory. Here are some suggested possible topics, but authors should feel free to write on any topics that concern error theory and Mackie's "Ethics":
      - What is the structure of Mackie's error theory? Are there other arguments for moral error theory that are more cogent than Mackie's? - How plausible is Mackie's opening claim that "first order" and "second order" moral views are "completely independent" of each other? - What does Mackie mean when he claims that his thesis that "there are no objective values is specifically the denial that any ... categorically imperative element is objectively valid" (p. 29)? - How powerful are Mackie's Argument from Relativity and Argument from Queerness? - Is Mackie's defence of Hume's Law plausible? Does it in any way affect his moral scepticism? - How are we to understand the relation between the sceptical view Mackie endorses in Chapter 1 and the apparent moralising in which he engages in the rest of the book? - If one endoreses a moral error theory, to what extent is the elimination of moral language (as least as it appears in the making of unembedded atomic claims) called for? What would the practical costs of such a moral eliminativism be? - Are Mackie's moves in ch. 4 between the various stages of universalization justified?
    Deadline for Submissions: Monday 25th September 2006 Please make clear at the top of your work that you wish your paper to be considered for the special issue. Please submit papers electronically via ETMP's submission service. Details are here: For any questions regarding this special issue, please contact Simon Kirchin:
Mackie's famous book was one of the primary texts in a seminar on Metaethics that I did with Philippa Foot at UCLA long ago. It is a fascinating and important book. If you are interested in moral theory and I have not yet read it, I highly recommend it.

Call for Papers: Constitutional LIteracy at American
    CALL FOR PAPERS: “Law Schools and the Promotion of Constitutional Literacy in America” The Program on Law and Government and Marshall-Brennan Constitutional Literacy Project at American University Washington College of Law announce a Call for Papers related to “Law Schools and the Promotion of Constitutional Literacy in America.” Papers should run no more than 25-30 pages, lightly footnoted, for presentation in draft form at a conference in March (see details below) and for possible publication in a future issue of the Journal of Legal Education or another journal or in a book of essays. The organizers seek interesting, concrete and reflective essays on constitutional literacy projects and work, including Street Law, the Marshall-Brennan Constitutional Literacy Project, mock trial, Open Doors to Federal Courts, Justice Anthony M. Kennedy’s Dialogues on Freedom, the American Bar Association’s Division for Public Education and the ABA’s Commission on Civic Education and the Separation of Powers, and other law school or law firm projects relating to the spread of constitutional knowledge and values throughout American society. Papers can concern any dimension of the constitutional literacy movement, including but not limited to: paradigms of teaching in public high schools and junior high schools; skills training in high school classrooms; different models in the law school curriculum of engaging in such projects; organizational best practices; improving the “pipeline” of minority and disadvantaged students to college, law school, and the practice of law; the effects of these programs on the institutional commitment to public service and public education; the enrichment of constitutional law and education law classes; how law school missions are changed by the constitutional literacy movement; and how law firms contribute to the communities in which they work. Paper drafts may be presented at a conference at American University Washington College of Law on March 17, 2006 from 12 noon until 5:00 PM. This conference, called “One Nation Under the Constitution – Bridging Communities Through Constitutional Literacy,” will involve many of the leading faculty, lawyers, and students in constitutional literacy projects at American law schools and in law firms. For further information, or to submit a draft, please contact Steve Wermiel, Associate Director of the Marshall-Brennan Constitutional Literacy Project at American University Washington College of Law, or 202-274-4263.

Tuesday, December 13, 2005
Blumm & Brown on Pluralism & the Environment Michael C. Blumm and Stephen R. Brown (Lewis & Clark Law School and Lewis & Clark Law School) have posted Pluralism and the Environment: The Role of Comment Agencies in NEPA Litigation (Harvard Environmental Law Review, Vol. 14, pp. 277-310, 1990) on SSRN. Here is the abstract:
    Judicial interpretation of the National Environmental Policy Act (NEPA)in the aggregate has prompted widespread confusion, as some analysts have alleged that NEPA is a “paper tiger;” others have claimed that the statute amounts to a “procedural straightjacket.” NEPA’s opaque language and its process-oriented provisions seem to give courts license to subject agency environmental documents to either the hardest of looks or the softest of glances. As a result, many critics have alleged that NEPA litigation is completely unpredictable, a function of the caprice of the reviewing judges. This article challenges the notion that NEPA is unpredictable by relating the comments of environmental and natural resources agencies to the outcomes of NEPA litigation. The results of numerous case studies the article examines show a close correlation to the views of agencies with expertise and the courts’ views of NEPA compliance. When environmental comment agencies raised serious concerns, courts were much more likely to conclude that the action agency violated NEPA. On the other hand, when environmental comment agencies approved agency proposals, courts were quite likely to find NEPA compliance. Although there were some exceptional cases that did not conform to the model suggested above, we maintain that the study demonstrated that comments by agencies with environmental expertise have had a profound effect on the outcome of NEPA litigation, an outcome that is wholly consistent with NEPA’s goal of elevating the role of agencies with environmental expertise in governmental decisionmaking. Among other lessons, the study suggests that members of the public with an interest influencing the outcome of agency proposals subject to NEPA should focus their attention on encouraging comments from agencies with environmental expertise which share their perspective.

Katyal on Slash Fan Fiction Sonia Katyal (Fordham University School of Law) has posted Performance, Property, and the Slashing of Gender in Fan Fiction (Journal of Gender, Social Policy, and the Law, Forthcoming) on SSRN. Here is the abstract:
    Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law - as it is owned, constituted, created, and enforced-both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost every other area of legal scholarship, scholarship on intellectual property, while perfectly poised to grapple with these aspects, has traditionally reflected a striking lack of attention to these considerations. Indeed, far from being a value-neutral regime, the history of intellectual property law reveals an astonishing number of incidences where the laws of copyright, trademark and patent have been used-often with great success - to silence transgressive depictions of sexuality, sexual identity, and gender expression. While depictions of sex and sexuality have always been fraught with cultural controversy, these incidents also demonstrate how, increasingly, such incidences of "semiotic disobedience" personify an underlying tension between our legal regimes of intellectual property and speech, and reveal how issues of distributive justice are invisibly enterwined within the interstices of commodified representations. In this article, I explore one particular type of fan fiction as an example of this trend, known as 'slash' fan fiction, which demonstrates how copyright both protects and prohibits divergent kinds of expression. Women have long been the dominant force behind fan fiction; like many types of creative work performed by women, their contributions are usually circulated among informal, decentralized, and largely unrecognized communities outside of the mainstream. 'Slash' fan fiction, like other types of fan fiction, is just one example of the myriad number of ways in which female audience participation can drastically alter the performance and interpretation of a given text. Yet slash fan fiction takes the trope of the engaged audience to a new level. 'Slash' fan fiction involves fictional, homoerotic pairings between male characters in mainstream television and science fiction programs. As I show, slash fan fiction empowers the virtual community to actively rework traditional narratives between men, demonstrating how queering mainstream characters can actually deconstruct, and then transcend, traditional gender norms and stereotypes. Unlike the commodified world of the content industries, which are largely dominated by men, slash fan fiction represents a striking example of how female consumers can radically rework and recode existing texts to create new works that add to the marketplace of ideas to create a kind of alternative cultural and political economy that surrounds a copyrighted work, and, as I argue, actually "slash" the strictures of gender stereotyping in the process. To show how this world is possible, I draw on performance theory to demonstrate the need for copyright's active reengagement with its audience. By creating spaces for such reworkings of cultural texts, we allow texts to transcend their fixed, stable form - and instead to become properties that are performative in nature; that is, they become ripe for audience participation and contribution. I suggest that copyright law must embrace a clear division between the product as "property" and the product as "performance." While most conventional scholarship tends to think of the audience as a largely passive body of recipients, performance theory has helped us to radically rethink these assumptions, and instead has offered scholars a host of insights regarding the multiple and intersecting ways in which audiences respond to performances, often creating rich and varied interpretations of a preexisting work, fan fiction being a single example. Along these lines, I argue that copyright must view its commodities not as fixed, stable texts, but rather as a set of starting points, a set of ongoing performances that can be recoded and reanalyzed by an active audience. In other words, I argue that copyright law needs to equalize the authorial monopoly of the creator in favor of a more dialogic and dynamic relationship between producers and consumers in the process.

Eisenberg & Miller on Incentives for Class Action Plaintiffs Theodore Eisenberg and Geoffrey P. Miller (Cornell Law School and New York University School of Law) have posted Incentive Awards to Class Action Plaintiffs: An Empirical Study on SSRN. Here is the abstract:
    Incentive awards to representative plaintiffs in class action cases have been the focus of recent law reform efforts and generated inconsistent case law. But little is known about such awards. This study of 374 opinions from 1993 to 2002 finds that awards were granted in about 28% of settled class actions. Rate of awards varied by case category as follows: consumer credit actions 59%, employment discrimination cases 46%, antitrust cases 35%, securities cases 24% (before the PSLRA limited awards), corporate and mass tort actions, less than 10%. The decision to grant an incentive award was associated with increased awards of attorney costs and expenses (our proxy for representative plaintiff costs) in relation to median class member recoveries and with the case being in federal court. When given, incentive awards constituted, on average, 0.16% of the class recovery, with a median of 0.02%. Award levels varied by case category. Employment discrimination cases had large incentive awards compared to other categories. Award size was associated with the case’s costs and expenses, the class recovery amount, the median recovery per class member, the case’s risk, and the presence of objection to the settlement. Awards exhibited a scaling effect; their percentage of the class recovery decreased as the class recovery increased. We examine the data in light of four hypotheses about the function of incentive awards: (1) reimbursing class representatives for non-pecuniary litigation costs; (2) rewarding class representatives for superior service; (3) facilitating self-interested behavior by class counsel; and (4) achieving proportionality between awards and other outcomes in the case. We find support for the reimbursement and proportionality hypotheses and weaker support for the attorney self-interest and reward-for-service hypotheses. We find little evidence of systematic abuse in incentive awards. Given the modest frequency and size of awards, and their possible benefits, case-by-case adjudication may be more appropriate than fixed legislative or judicial rules banning awards.

Bradley on Raich Craig Bradley (Indiana University School of Law-Bloomington) has posted Gonzales v. Raich: Oh Federalism, Where is thy Sting? (Trial Magazine, August 2005) on SSRN. Here is the abstract:
    This is a draft of a column, subsequently published by Trial Magazine (August 2005, p. 52) criticizing the Supreme Court's holding in the medical marijuana case and arguing that under Lopez and Morrison, Congress lacked the power to penalize marijuana possession absent a showing of a connection to interstate commerce.

Monday, December 12, 2005
Secunda on Lawrence v. Texas Paul Secunda (University of Mississippi) has posted The (Neglected) Importance of Being Lawrence: The Constitutialization of Public Employee Rights to Decisional Non-Interference in Private Affairs on SSRN. Here is the abstract:
    This paper argues that whatever debates continue to stew regarding the true meaning of Lawrence v. Texas, at the very least, Lawrence represents the recognition of an individual's heightened interest in decisional non-interference in private affairs. This is an important constitutional development since a problem under the doctrine of unconstitutional conditions only arises when the government offers a benefit, like government employment, conditioned on the waiver of a preferred constitutional right. Thus, a government employer, post-Lawrence, should be prohibited, under the doctrine of unconstitutional conditions, from firing a government employee who exercises her rights to decisional non-interference in private affairs. However, the current protections for public employee speech rights under the Connick/Pickering analysis do not adequately safeguard these emerging rights to decisional non-interference. The proposed modified Pickering test discards the unnecessary "public concern test" for these post-Lawrence substantive due process cases and, in the first instance, balances the employee's right to decisional non-interference in private affairs against the government's interest in operating an efficient governmental service for the public. The upshot, and a much neglected aspect of Lawrence, is that over 21 million federal, state, and local United States' employees will enjoy a significant expansion of their rights to be free from arbitrary and capricious government employer interference in their personal and private lives.

Heller on Circumstantial Evidence Kevin Jon Heller (University of Georgia) has uploaded The Paradox of Circumstantial Evidence to SSRN. Here is the abstract:
    Empirical research indicates that jurors routinely overvalue direct evidence (eyewitness identifications, confessions) and undervalue circumstantial evidence (DNA, fingerprints, etc.) when making verdict choices, even though false-conviction statistics indicate that the latter is actually far more reliable than the former. The traditional explanation of this paradox, based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant’s guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology as the “Wells Effect”: the puzzling fact that jurors are likely to acquit in circumstantial cases even when they know the objective probability of the defendant’s guilt is sufficient to convict. This speculative Article attempts to explain why jurors find circumstantial evidence so psychologically troubling. Drawing on a wide variety of psychological research into judgment and decision-making – Kahneman & Tversky’s simulation heuristic in particular – it argues that jurors decide whether to acquit in a criminal case not through mechanical probability calculations, but on the basis of their ability to visualize a scenario in which the defendant is factually innocent. The Article then examines the basic epistemological differences between direct and circumstantial evidence and shows how those differences normally make it easier for jurors to visualize a factually-exculpatory scenario in circumstantial cases. Finally, the Article concludes by discussing how an ease-of-simulation model of jury decision-making improves our understanding of how and why false verdicts occur.

Sunday, December 11, 2005
Legal Theory Lexicon: Positive and Normative Legal Theory
    Introduction One of the most fundamental distinctions in legal theory is that between "positive legal theory" and "normative legal theory." This post provides a very brief introduction to the distinction, aimed at law students (especially first years) with an interest in legal theory.
    The core idea of the distinction between positive and normative legal theory is simple: positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas normative legal theories tell us what the law ought to be. Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are about facts and normative legal theories are about values.
    Positive Legal Theory Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:
      Positive Legal Theory Type 1: Doctrinal Theories--The first kind of legal theory that is called "positive" is quite simply a theory of what the content of a particular field of legal doctrine is. Thus, a theory of the freedom of speech might simply seek to explain the shape of existing first amendment doctrine. Or a theory of hearsay rule might seek to provide an account of the rule and exceptions that explains and accurately predicts particular applications of the rule. Doctrinal legal theories are responsive to questions like, "What are the principles that shape this area of the law?" or "Can these cases be explained by some underlying theory?"
      Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules.
      Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.
    Normative Legal Theory Normative legal theories, on the other hand, are by their nature evaluative. Thus, a normative theory of products liability law would take a stand on the question whether negligence or strict liability is the better rule. Normative legal theories tend to be entwined with more general normative theories, e.g. moral or political theories, although this is not necessarily the case. The Legal Theory Lexicon already includes entries on deontology, utilitarianism, and virtue ethics--three of the most important general normative theories that have had an influence on the law. There are two other distinctions that are important to understanding the general idea of a normative legal theory:
      Ideal versus Nonideal Theory Some normative legal theories are "ideal"--that is, they are theories about what the best legal rule would be in the world in which everything was politically possible, the law could be adequately enforced, and other legal rules that interact with the subject of the theory could be adjusted to produce the best overall system. Other normative legal theories are "nonideal"--that is, they are theories that assume a variety of constraints on the choice of legal rules. For example, a nonideal theory might take into account political feasibility or it might take into account the possibility that the system would not provide an optimal level of enforcement for the rule that would otherwise be best. The Legal Theory Lexicon entry on second best explores these ideas in greater detail.
      Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose. They do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.
    The Intersection of Positive and Normative Theory So far, we have been assuming a fairly sharp distinction between positive and normative legal theory. And for many purposes, assuming that there is a bright line that separates normative and descriptive legal theory is a good working hypothesis. Even assuming there is such a bright line, however, there are relationships between positive and normative legal theories.
      Positive Theory in the Service of Normative Theory One relationship is clear and straightforward. Many normative theories underdetermine what the legal rules should be in the absence of substantial information about the effects of the rules. This is most obvious in the case of utilitarian theories, where information about consequences does all the real work of determining which legal rule is best. For normative theories like utilitarianism, positive theory performs an essential service. Without a positive account of the effects of a given rule choice, utilitarianism has nothing to say about what rule is best.
      Positive Theory as a Constraint on Normative Theory Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory.
      Interpretivism and "Law as Integrity" There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post.
    Conclusion The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both. One of the oft-repeated questions that law professors ask of entry-level candidates giving job talks (or ambitious students writing papers) is whether their theory is positive or normative. Be sure you know the answer before the question is asked!

Saturday, December 10, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Judicial Review in the New Democracies by Tom Ginsburg. Here's a blurb:
    Where does judicial power come from, how does it develop, and what political conditions support its expansion? This book answers these important questions through an examination of three constitutional courts in East Asia, where law is traditionally viewed as a tool of authoritarian rulers. New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Thomas Ginsburg argues that, while judicial review does put constraints on government, it is sought as a solution to the problem of uncertainty in constitutional design. By providing "insurance" to prospective electoral losers, judicial review facilitates democracy.
    "Every serious scholar and student of constitutional politics and institutional design should read this book." The Law and Politics Book Review

Download of the Week The Download of the Week is No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty by Carol Steiker. Here is the abstract:
    Cass Sunstein and Adrian Vermeule have argued that, if recent empirical studies claiming to find a substantial deterrent effect from capital punishment are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible, but actually morally required. While there is ample reason to reject this argument on the ground that the empirical studies are deeply flawed (as economists John Donohue and Justin Wolfers elaborate in a separate essay), this response directly addresses Sunstein and Vermeule's moral argument. Sunstein and Vermeule contend that recognition of the distinctive moral agency of the government and acceptance of "threshold" deontology (by which categorical prohibitions may be overridden to avoid catastrophic harm) should lead both consequentialists and deontologists to accept the necessity of capital punishment. This response demonstrates that neither premise leads to the proposed conclusion. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to non-purposeful killing), and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of "threshold" deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven; rather, arguments about catastrophic "thresholds" face special challenges in the context of criminal punishment. This response also explains how Sunstein and Vermeule's argument necessarily commits us to accepting other brutal or disproportionate punishments, and concludes by suggesting that even consequentialists should not be convinced by the argument.
For my prior post on this article, surf here. For Sunstein and Vermeule's original paper, download Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs.. And, of course, Download it while its hot!

Friday, December 09, 2005
The Globalization of Legal Theory
    Introduction I’ve been attending a series of conferences in China on the general theme of Law and Economic Development. Although the primary focus of these events is not high legal theory, both the formal presentations and informal discussion have prompted me to reflect on the topic of the globalization of legal theory. I’ve heard a lot of sophisticated theory talk, and have been enlightened by learning of the penetration of sophisticated legal theory into the undergraduate classrooms of Chinese universities.
    Of course, in the Western tradition there is a long tradition of legal theory that transcends national boundaries. For example, Roman law provides a set of shared jurisprudential ideas for legal systems in the “civil law” tradition, and English common law serves a similar function for common-law legal systems in the United States, Canada, Australia, Israel, and elsewhere. Moreover, there is a tradition of legal theorizing, running from Plato and Aristotle through Aquinas, Pufendorf, and Grotius and extending to modern figures like Austin, Kelsen, and Hart. Institutionally, the IVR has played an important role in bringing legal theorists together in biannual “World Congresses for Legal and Social Philosophy.”
    That is, long before “globalization” was a buzz word, there was global dissemination of legal theory. Nonetheless, I suspect that globalization has hit legal theory in a way that makes the global dissemination of theoretical ideas about law more rapid, thorough, and influential than ever before. This suspicion is based on several pieces of data. Most recently by my observations in China, where both law and economics and analytic jurisprudence have been the subject of several papers and informal conversations, not just with faculty members but also with undergraduate students! I read hundreds of SSRN abstracts almost every week, and the globalization of legal theory is in strong evidence there, with abstracts being posted from all over the world on a regular basis.
    This post is simply a set of reflections about the globalization of legal theory, informed by my own recent experiences, in China and elsewhere.
    Legal Theory and the Parochial Nature of Legal Culture The main thrust of this post is an argument that legal theory is “globalizing” or transcending the boundaries of national legal cultures, in new and important ways. But this phenomenon takes place against a “centripetal force” that tends to “balkanize” thinking about law. That force is the parochial nature of legal culture. Law in modern societies is organized by the nation-state. That is, legal cultures are organized national (and subnational) legal systems. Most American lawyers know federal law and/or the laws of a particular state or group of states. Most French lawyers know French law, Chinese lawyers, Chinese law, and so forth. To the extent that legal theory functions to “theorize” actual legal practice, they theorize “American law,” “Chinese law,” “French law,” and so forth. Moreover, legal cultures “speak the vernacular.” That is, American lawyers speak English—proficiency in other languages is not a professional requirement for becoming a lawyer. And the same is true (more or less) for many other legal cultures. So there is a “centripetal force,” the linguistic and cultural isolation that drives legal cultures apart.
    Of course, this point should not be exaggerated. National law is supplemented by international law, transnational commercial law, and by the study of “comparative law,” a methodology that aims to bridge the gap between diverse legal cultures. American lawyers know a little about civil law, and French lawyers may know about English law. Some lawyers specialize in international public or private law. This has always been true, and therefore, there have always been “gravitational pulls” that operate against the centripetal force of linguistically isolated national legal cultures. And, as I’ve already mentioned, in Western legal cultures there is a common intellectual heritage of legal philosophy that has been shared by diverse national legal cultures.
    In other words, there has always been some “globalization” of legal theory. Has this globalization increased? And, if so, why?
    The Forces Driving and Enabling the Globalization of Legal Theory I certainly haven’t done any sort of systematic empirical investigation of the question whether legal theory is more global now than it was 10, 20, or 50 years ago, but I strongly suspect that it is. Why? There are a variety of changes that may have contributed. Here are some possibilities:
    • Economic Globalization—Let’s get this one out of the way first. Legal theory does not exist in an economic or cultural vacuum. So, I think it is uncontroversial that legal theory is likely to mirror underlying economic and cultural globalization. There are several mechanisms by which this might happen, but the most obvious one is that legal cultures follow commercial cultures. Economic globalization tends to be reflected in the globalization of legal practice, and the legal academy is influenced by this in a variety of ways, including its absorption of lawyers with international practices.
    • English as a Global Academic and Commercial Language—The dissemination of English as a global academic and commercial language is another factor. Although national legal cultures use the vernacular, commerce and the academy have increasingly adopted English as a the new “lingua franca”—the international language of business transactions and scholarly conferences. Legal theories can cross national boundaries at a lower cost if there is no language barrier, and increasingly legal theorists everywhere speak and read English.
    • Interdisciplinarity—Legal theory is increasingly interdisciplinary. That is, legal theorists increasingly have PhDs in other disciplines, go to conferences in other disciplines, and publish in peer-reviewed journals in other disciplines. And scholars in other disciplines are increasingly interested in law and the legal academy. If legal cultures have been parochial, many academic disciplines are not. This varies from discipline to discipline, of course. Economics may be more transnational than political science. For complex historical reasons, philosophy was for many years divided into an “Anglo-American” camp and a “continental” camp—mirroring the divide between common-law and civil systems. But the real point is the interdisciplinarity tends to break down the barriers created by linguistically isolated national legal cultures. Legal economists in the United States have much in common with legal economists in China. Legal philosophers in the United States share a common agenda with legal philosophers in Israel.
    • Communication and Travel—It used to be relatively quite costly for legal theories to be transported across national boundaries and over great distances. In an age of snailmail and rail travel, few academics would travel to conferences or serve as visiting professors in foreign countries. We now live in an era of cheap air travel, cheap international telephony, and virtually free email (and instant messaging). That means legal theories can travel farther, cheaper. I’m currently visiting China, and can continue conversations started here by email with no additional costs associated with the distance between Champaign, Illinois, and Beijing or Guangzhou in China.
    • The Internet—We already take the Internet for granted, but as a mass communications medium it is only ten years old. The Internet has already begun to have a significant impact on the dissemination of legal scholarship. SSRN is an important example of this. Before the Internet, access to legal scholarship was expensive and access to legal scholarship across national boundaries was really very expensive. Nowadays, however, articles can be posted on SSRN at a very very low cost. And once an article (or working paper) is on SSRN, it becomes available across the globe. Most articles and papers on SSRN can be downloaded for free by anyone with a reasonably fast Internet access method. Moreover, SSRN abstracts (but not full text articles) are searchable by search engines like Google, making access to these articles even less costly.
    It seems to me that all of these factors combine to make legal theory a global enterprise in a way that it has never been before now. Moreover, my guess is that the globalization of legal theory is just beginning to take off.
    Let me use SSRN to illustrate the about-to-take-off thesis. I take SSRN for granted. (I read abstracts and papers almost every day.) But I still know some legal academics who have barely heard of SSRN—much less uploaded (or downloaded) a paper. SSRN has penetrated many legal cultures, but there are still whole nations where no one uses SSRN. I don’t know whether SSRN as we know it will even exist in 10 years, but something like it will exist, and I suspect that free distribution of scholarship on the Internet in 10 years will be ubiquitous. Almost everyone will upload working papers and final articles one way or another, and full-text searching will become the norm. When a scholar in Asia works on a problem of legal theory, they will have easy access to the latest relevant work from Europe or Latin America. And this will happen in world where more legal theorists speak English and where the costs of communications and travel are even lower than they are today.
    Is “Globalization” really “Americanization”? In other contexts, some consider “globalization” to be a synonym for Americanization. Well, in the context of legal theory, not exactly “Americanization,” because the United Kingdom has played an important role in American legal theory—consider the role of Oxford scholars H.L.A. Hart, Joseph Raz, Ronald Dworkin, and John Finnis in the philosophy of law. So we might ask the question: Is the globalization of legal theory really an Anglo-Americanization of legal theory? In some ways, the answer seems to be “yes.” Americans have played a leading role in the law and economics movement—with Ronald Coase and Richard Posner as just two prominent examples. One counter example to the Anglo-Americanization thesis is the major impact that the German social theorist Jürgen Habermas has had on legal theory, especially in Europe but also in the common-law world.
    There are reasons to believe that the relative importance of the United States may decline over time. The United States was on the leading edge of the Internet curve, but that comparative advantage is fading fast as other nations equal or exceed the United States in rates of high-speed Internet access. Of course, many other factors play a role in determining the relative importance of regions and nations in the development of legal theory—certainly national wealth and the level of financial investment in legal education are just two important factors among many.
    Conclusion Legal theory is globalizing to an unprecedented extent—I’m sure of that. But what does this mean? Does this phenomenon have any significant implications? I’m not sure, and I would welcome the opinions of Legal Theory Blog readers on this question. My guess is that we are about to see more interpenetration of ideas that have developed in relatively isolated legal cultures. But will anything new and important be brought to the table? Will globalization make legal theory blander rather than better?
    Comments by email are especially welcome on this topic! I’m especially interested in the thoughts of scholars from outside the United States and outside of the developed world! As always, you can email me at:

Thursday, December 08, 2005
Conference Announcement: Multiculturalism and the Antidiscrimination Principle at Ramat-Gan
    In recognition of the international human rights day, the Human Rights Division of Ramat-Gan College Law in Israel is holding its first international human rights conference on the subject of "Multiculturalism and the Antidiscrimination Principle". The conference will be conducted as a researchers' workshop and will take place in Sheraton City-Tower Hotel, Ramat-Gan, Israel on December 10-12, 2005. The conference will focus on the complicated relationship between the commitment to multiculturalism and the antidiscrimination principle. More specifically, it will deal with the claim of cultural minorities for exemptions and/or accommodations on the basis of the right to equality; as well as with the possible clash between the rights of cultural groups and the right of individuals within these groups to be free from discrimination. List of participants and all the workshop's papers can be viewed at the workshop's site: The five workshop's sessions will be videotaped and uploaded in the conference's site as video files soon after the conference. Dr. Moshe Cohen-Eliya Conference Organizor

Rothman on Initial Interest Confusion Jennifer Rothman (Washington University, St. Louis) has posted Initial Interest Confusion: Standing at the Crossroads of Trademark Law on SSRN. Here is the abstract:
    While the benchmark of trademark infringement traditionally has been a demonstration that consumers are likely to be confused by the use of a similar or identical trademark to identify the goods or services of another, a court-created doctrine called initial interest confusion allows liability for trademark infringement solely on the basis that a consumer might initially be interested, attracted, or distracted by a competitor's, or even a non-competitor's, product or service. Initial interest confusion is being used with increasing frequency, especially on the Internet, to shut down speech critical of trademark holders and their products and services, to prevent comparative advertisements and to otherwise limit information and choices available to consumers. Contemporary trademark law is at a crossroads and the initial interest confusion doctrine stands at the center of this intersection. This article uses the troublesome doctrine as a prism to analyze three crucial issues that will decide the future of trademark law: The first is whether it is ever acceptable to trade off of the goodwill established by another. The second is whether trademark protection primarily serves to protect consumers from being duped by unethical competitors, or instead primarily serves to bolster the business of individual trademark holders. Finally, the article considers the fundamental question: are trademarks and trademark infringement actions about protecting property rights or about providing more limited rights akin to tort and unfair competition actions? The answers to these questions lead to the conclusion that the initial interest confusion doctrine must be eliminated and trademark infringement returned to its origins as a narrow cause of action primarily directed at protecting consumers from deceptive business practices.

Erbsen on Class Action Regulation Allan Erbsen (University of Minnesota Law School) has posted From 'Predominance' to 'Resolvability': A New Approach to Regulating Class Actions on SSRN. Here is the Abstract:
    This Article develops normative and doctrinal innovations to cope with a pivotal yet undertheorized question in most proposed class actions: assuming that a class has adequate representatives, how much variance among class members' circumstances should courts tolerate? Class actions seeking monetary damages would be much less controversial if all class members were identically situated. In an imagined world of perfect homogeneity, shifting from an individualized to an aggregative mode of adjudication would promote efficiency, mitigate collective action problems, and counterbalance defendants' inherent economies-of-scale without sacrificing accuracy or redistributing entitlements among class members. In the real world, however, most classes encompass at least partially heterogeneous claims spread across a spectrum of merit and economic value. This diversity creates opportunities for strategic behavior that can distort the outcome of trials or of settlements negotiated in the shadow of trial. The Article defines three phenomena that create such distortions: "cherry-picking," "claim fusion," and "ad-hoc lawmaking." The potentially mischievous consequences of heterogeneity in class actions suggest that courts should have a normative theory and doctrinal mechanism to distinguish between acceptable and excessive diversity among proposed class members. The Article addresses the normative question by introducing and justifying three principles to structure certification criteria: "finality," "fidelity," and "feasibility." The Article then applies these principles to assess the forty-year-old "predominance" standard that currently governs how courts decide whether to certify diverse damages classes. This analysis reveals that the predominance standard is conceptually incoherent and that widely-cited doctrine applying it is normatively unsound. To fill the gatekeeping function that the predominance standard ineffectively attempts, the Article proposes a new "resolvability" test for courts to apply when deciding if a class action would be an appropriate procedural vehicle for adjudicating diverse claims and defenses. The proposed test would permit certification of class actions seeking money damages only when: "The court has a feasible plan to answer all disputed questions of law and fact that must be resolved before entering judgment for or against class members under the law governing each class member's claim and applicable defenses." The Article then discusses broader implications of its proposal that highlight a dynamic relationship between substantive and procedural constraints on regulation of mass risks.

Wednesday, December 07, 2005
Danay on P2P in the UK Robert Danay has posted Copyright vs. Free Expression: The Case of Peer-to-Peer File-Sharing of Music in the United Kingdom on SSRN. Here is the abstract:
    This paper explores the extent to which the peer-to-peer (p2p) file-sharing of music is a form of communication protected from the restrictions of the Copyright, Designs and Patents Act 1988 (U.K.) (CDPA) by the guarantee of free expression enshrined in Article 10 of the European Convention on Human Rights (ECHR) and incorporated into domestic law through the Human Rights Act 1998 (U.K.) (HRA). The paper first examines the protection offered to freedom of expression through the existing copyright scheme. It is asserted that due to a lack of context-sensitivity, mechanisms such as the idea-expression dichotomy must not be relied upon to deny the existence of prima facie breaches of Article 10(1) of the ECHR. Rather, such breaches must be acknowledged and justified (if possible) as being "necessary in a democratic society" under Article 10(2) of the ECHR. Next, the extent to which p2p music file-sharing represents an infringement under the terms of the CDPA (exclusive of any effect of the ECHR) is examined. It is concluded that such sharing does amount to an infringement under the Act and is not subject to any of the enumerated defences. The final part of the paper explores the extent to which the statutory restriction on file-sharing of music may be permitted under Article 10 of the ECHR. It is suggested that, for a number of reasons, the CDPA's restriction on free expression may not be "necessary in a democratic society" under Article 10(2) of the ECHR. As a result, should this statutory restriction be impugned in a U.K. courtroom in the context of p2p music file-sharing, such a court may be under an obligation to exculpate infringing parties under the "public interest" defence or to make a declaration of incompatibility under the HRA.

Sandefur on Kelo I am now in Bejing, and posting on a brand-new paper by Tim Sandefur. But before I give you the usual details, I wanted to mention that the Kelo was the subject of active interest by several Chinese academics at the conference I attended earlier this week in Guangzhou. Small world?
Timothy Sandefur has posted The “Backlash” So Far: Will Citizens Get Meaningful Eminent Domain Reform? on SSRN. Here is the abstract:
    The Supreme Court’s decision in the eminent domain case of Kelo v. New London was greeted with anger and frustration. The public outcry reaction came to be called the “Kelo backlash,” and news reports and editorials declared throughout the fall of 2005 that this backlash was leading to statutory reforms in many state legislatures. Following Justice Stevens’ suggestion in the Kelo opinion that states could provide greater protection for property owners than the federal courts provided, and recognizing that some state courts had imposed stricter limits on eminent domain through the “public use” requirements in state constitutions, activists and legislators in 38 states began working on changing state laws regarding property seizure. So far, the backlash has produced few results. Largely because most state legislatures have been in recess since shortly after the Kelo decision was announced, only four states have passed legislation regarding eminent domain. Unfortunately, those four provide little protection for property owners. Proposals in other states, including two brought forward in the California Legislature, even appear to have been consciously designed to effect no meaningful change. On the other hand, a bill recently passed by the Pennsylvania House of Representatives and now pending before the state Senate, as well as federal legislation which appears likely to be enacted into law, do include significant limits on eminent domain. These bills give reason to hope that meaningful reform is on the horizon once other state legislatures return from winter recess. But proponents of these measures must resist the pressure to include loopholes and exceptions that have so severely weakened the four new reform laws In this article, I survey these four new laws, as well as three proposals that were shot down by the legislature of California, to see how they promise far more than they actually deliver. I will also examine bills recently passed by the Pennsylvania Legislature, and by the United States House of Representatives, which, if enacted, would provide genuine protection for property owners. After a brief background on the law of eminent domain after Kelo, and the public reactions to that decision, I explore each bill in sequence. I then conclude with some observations as to the two biggest obstacles faced by those hoping for serious eminent domain reform: the political influence of powerful redevelopment proponents, and the lack of serious philosophical support for opposition to the outcome of Kelo.
I am always interested in Sandefur's work.

Conference Announcement: Kripke in Barcelona
    LOGOS Workshop with Saul Kripke MEANING AND USE Barcelona, 19-21, December 2005 Monday, December 19
      11’30 -13'45: Saul Kripke (CUNY) "The first person, presupposition, implicatures and anaphora I" 15'30-16'30: Adriana Silva Graça (Univ. Lisboa) "The Semantic Relevance of Speakers' Linguistic Intentions" 16'30-17'30: Josep Macià (LOGOS, Univ. Barcelona) "Expressive Meaning as Presupposition"
    Tuesday, December 20
      11’30 -13'45: Saul Kripke (CUNY) "The first person, presupposition, implicatures and anaphora II" 15'30-16'30: Dan López de Sa (LOGOS, Univ. St. Andrews) "Rigidity for Predicates: the Simple Proposal" 16'30-17'30: José Martínez (LOGOS, Univ. Barcelona) "Some remarks on the fixed-point problem in Kripke's theory of truth"
    Wednesday, December 21
      11’30 -13'45: Saul Kripke (CUNY) "The first person, presupposition, implicatures and anaphora III" 15'30-16'30: Óscar Cabaco (LOGOS, Univ. Barcelona) "The explanations of the necessary a posteriori (and the contingent a priori)" 16'30-17'30: Adele Mercier (LOGOS, Queen's Univ.) "So, laziness aside, who's Santa Claus?"

Tuesday, December 06, 2005
Visit to Beijing I will be attending a conference at the MILES Institute of Law and Economics in Beijing on Friday, December 9. If you are a reader of Legal Theory Blog and plan to attend the conference or would like to say hello during my visit, drop me an email at or introduce yourself at the conference. See you then!

Thanks You! I wanted to thank my hosts at Sun Yat-Sen University in Guangzhou for their very gracious hospitality the last few days. I've been at a conference on Law and Economic Development with colleagues from the University of Illinois and legal scholars from all over China. It has been an enlightening and stimulating experience.
One of the most imteresting aspects of the visit has been my new appreciation of the penetration of law and economics into Chinese legal theory. I must have heard at least a half-dozen papers that made extensive use of sophisticated economic reasoning, and there were more mentions of Ronald Coase by Chinese legal academics than I can count, as well as sophisticated analysis of the interaction between legal norms and social norms.
I would also like to thank the many readers of Legal Theory Blog who came to the conference to hear my talk or to say hello. It was a pleasure to meet all of you and to discuss analytic positivism, Dworkin, virtue jurisprudence, and neoformalist legal thinking.

Monday, December 05, 2005
Steiker on the Sunstein-Vermeule Death Penalty Thesis with an update! Carol S. Steiker (Harvard Law School) has posted No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
    Cass Sunstein and Adrian Vermeule have argued that, if recent empirical studies claiming to find a substantial deterrent effect from capital punishment are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible, but actually morally required. While there is ample reason to reject this argument on the ground that the empirical studies are deeply flawed (as economists John Donohue and Justin Wolfers elaborate in a separate essay), this response directly addresses Sunstein and Vermeule's moral argument. Sunstein and Vermeule contend that recognition of the distinctive moral agency of the government and acceptance of "threshold" deontology (by which categorical prohibitions may be overridden to avoid catastrophic harm) should lead both consequentialists and deontologists to accept the necessity of capital punishment. This response demonstrates that neither premise leads to the proposed conclusion. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to non-purposeful killing), and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of "threshold" deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven; rather, arguments about catastrophic "thresholds" face special challenges in the context of criminal punishment. This response also explains how Sunstein and Vermeule's argument necessarily commits us to accepting other brutal or disproportionate punishments, and concludes by suggesting that even consequentialists should not be convinced by the argument.
I highly recommend this article which takes on the now famous (or infamous) Sunstein-Vermeule life-life thesis. Steiker is absolutely right that Sunstein & Vermeule do not have an argument to collapse the moral distinction between intentional killing--executions are surely that--and nonintentional killings, but I do not see how this point damages the Sunstein-Vermeule thesis in the way that Steiker claims. I am currently in Guangzhou China & I don't have enough time to give this the comment it deserves, but briefly, I think that the key argument that Sunstein and Vermeule make is that more wrongful killing of innocents results from failure to deter than from accidentally execution of innocents. This is assuming their empirical hypothesis is correct--which is controversial, of course. When the government executes an innocent person by mistake, the action is intentional under the description "killing the person sentenced to death by execution," but it is not intentional under the description "killing an innocent person." So, while the government acts intentionally, it does not kill innocents intentionally. Hence, Steiker's point, although correct, does not really defeat the "innocent life-innocent life" point, which is the point that Sunstein and Vermeule are making. I don't think the Sunstein-Vermeule argument works, but my reasons are entirely different than Steikers. Maybe more on this later! Read Steiker's piece!
Thanks to Adrian Vermeule for help on the precise nature of the claim they made. In the original version of this piece, I said I was not sure whether they specified "innocence" in their claim. As Adrian points out, this distinction is clear in the original article.

Hill on the Endorsement Test in Establishment Clause Jurisprudence Jessie Hill (Case Western Reserve University - School of Law ) has posted Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test (Michigan Law Review, Vol. 104, p. 491, 2005) on SSRN. Here is the abstract:
    The Supreme Court's jurisprudence concerning public displays of religious symbols is notoriously unpredictable. In this Article, Professor Hill argues that the instability and apparent incoherence of the Supreme Court's religious symbolism jurisprudence is due to certain difficulties inherent in discerning the meaning or message of a religious display. In particular, she attributes the unpredictability of the jurisprudence to the fact that the meaning of the display is dependent on the context, which is itself an unmanageable and unformalizable concept. This Article, which draws on insights from literary and linguistic theory, breaks with previous commentators' claims that the difficulties with the Court's jurisprudence in this area are due to doctrinal incoherence, thinly veiled politics, or unconscious bias, arguing instead that the problems reflected by the Supreme Court's case law inhere in the task of discerning the social meaning of a religious display.

Hayden on Race & Voting Rights Grant M. Hayden (Hofstra University - School of Law) has posted Refocusing on Race (George Washington Law Review, Vol. 73, p. 1254, 2005) on SSRN. Here is the abstract:
    This paper, prepared for a symposium on voting rights in the George Washington Law Review, is a call to refocus attention on the role of race in politics. In recent years, many voting rights scholars have shifted their attention away from the plight of minority voters. Indeed, the issue of race came up in this symposium only obliquely, if at all, as part of a discussion of other issues. And this is more than a bit unusual, for race has been a driving force in the development of much of the law of democracy over the last several decades. Of course, there is more to politics than race. The 2000 presidential election fiasco, coupled with the passage of the Help America Vote Act and predictions (mostly correct, it turns out) of a close presidential election in 2004, made us focus on ballot access and integrity in a way that we haven’t since the passage of the Voting Rights Act. Significant new legislation and Supreme Court opinions in the areas of campaign finance and partisan gerrymandering in the last couple of years have made those issues especially relevant. And when it comes to the law of politics, we all recognize the need to strike while the iron is hot--and ballot access, campaign finance, and partisan gerrymandering are certainly the hot issues of the last election. But the relative inattention to the role of race in politics may reflect more than the temporary rise of other issues. It may also reflect a broader belief that, when it comes to race, we’ve done about all we can, especially when it comes to the larger, structural issues. The thinking goes something like this. The problem of minority access to the polls was largely resolved in the 1960s through enforcement of the Voting Rights Act. The problem of minority vote dilution has proven more difficult, but the creation of majority-minority (or, more recently, coalition) districts under sections 2 and 5 of the Voting Rights Act has effectively remedied that issue. In any case, that remedy appears to have reached its limit, both because there are few places left to draw additional majority-minority districts and because the creation and maintenance of such districts may actually reduce minority influence in political affairs. The belief that problems of minority political participation have been solved, or perhaps more accurately, that there is not that much more we can do about them within existing legal structures, comes at a critical time. Several portions of the Voting Rights Act, including section 5, come up for reauthorization in 2007. Allowing section 5 to expire without replacing it with something comparable will eliminate one of the most flexible legal tools for countering the constantly evolving methods of effectively reducing meaningful minority political participation. This paper, then, is a plea to refocus attention on the issue of race. Part of this project must involve making sure we continue to set new goals as the old ones are achieved. Another part involves making sure that we recognize that some of the constraints that prevent minority groups from fully realizing their potential in a democratic society are of our own, or the Supreme Court’s, making, and that what we have created, we can undo (or at least question). The paper, then, is a call to remain vigilant in policing the many intentional and unintentional ways in which the political rights of racial minorities may be infringed upon. And, more generally, it is an argument to think more broadly about the possibilities that may exist to improve minority participation.

Neff on Interpretive Power Lance Neff (Florida Coastal School of Law) has posted The Keys to the Kingdom: Interpretive Power and Societal Influence During Two Ages on SSRN. Here is the abstract:
    This article provides a comparative analysis of the character of interpretation from two ages: the interpretation of biblical text during the Reformation era in Europe and the "living Constitution" interpretive framework employed in current American constitutional jurisprudence. The article demonstrates the anti-majoritarian tendency of interpretation from above and how institutions with the authority to create its own rules of interpretation tend to use that influence to perpetuate its own hierarchical power base. Interpretive institutions that employ such means generally do so to its own demise as demonstrated by the splintering of the Catholic Church as a result of the Reformation. The question for contemporary times, however, is how to stop the rising onslaught of vitriol directed at the American judiciary? This article attempts to find a compromise between the independence the judiciary needs and the right of self-determination the general public desires. For possible answers, the author turns to old and new philosophical concepts to offer two common sense approaches to solving the problem of the judicial intemperance before public distrust reaches critical mass. The work suggests either deference to "local narratives" or a scrupulous regime of constitutionalist interpretation. Through either of these means, both of the following results will occur: the people of the United States can reclaim the power of self-determination and the judiciary can maintain some level of independence from the political process.

Liberals and Abortion by Levinson & Balkin Over at Legal Affairs, Sandy Levinson and Jack Balkin debate Should Liberals Stop Defending Roe? From Levinson:
    my concerns about Roe, and whether the Democratic Party should continue to expend a great deal of political capital on keeping it on the books, have less to do with specifically legal concerns—i.e., what constitutes the best interpretation of the Constitution?—and far more to do with the politics of the abortion issue in 2005 and beyond. I am increasingly persuaded that the principal beneficiary of the current struggle to maintain Roe is the Republican Party. Indeed, I have often referred to Roe as "the gift that keeps on giving" inasmuch as it has served to send many good, decent, committed largely (though certainly not exclusively) working-class voters into the arms of a party that works systematically against their material interests but is willing to pander to their serious value commitment to a "right to life."
And from Balkin:
    one doesn't "give up" on constitutional rights unless one is already convinced that they aren't very important or don't actually exist. Should liberals have given up on Brown v. Board of Education in 1962 when the going got rough if they genuinely believed that racial equality was a fundamental right of human beings? Or to take an example near and dear to your heart, Sandy, should we have given up on constitutional limits on presidential power and constitutional prohibitions on torture because most Americans thought our repeated carping on these issues unpatriotic, and that was bad for Democrats? If we don't stand up for the constitutional rights we believe in when they are politically inconvenient, what is the point of having such rights? Thus, to convince me that we should give up on Roe you'll first have to convince me (and many other people, too) that the right to abortion isn't all that important to women's liberty and equality; or that despite its importance, Bork and Scalia were right and that there is no such right in the Constitution.

Sunday, December 04, 2005
Legal Theory Lexicon: Transparency
    Introduction Sooner or later, most law students encounter the idea that "transparency" (as opposed to "opaqueness") is a desirable characteristic in markets, procedures, and governance institutions (both private and public). But what is "transparency" and why is it a good thing? This entry in the Legal Theory Lexicon provides a very brief introduction to the concept of transparency for law students (especially first-year law students) with an interest in legal theory. The basic idea of transparency is simple: things go better when processes are open. Markets function best when transactions are public. Judicial processes work best when they are visible to the participants and the public. Governments work best when both inputs to decisions and the meetings in which decisions are made are public. This post provides a brief introduction to the idea of transparency in a few important contexts.
    Transparency and Democratic Process Why should the processes of democratic decisionmaking be transparent? There are so many different answers to this question that one hardly knows where to begin, but we might start by distinguishing between answers that rely on consequentialist reasoning and those that appeal to ideas about rights, fairness, or legitimacy. The consequentialist case for transparency in government usually rests on the idea that opaque processes are likely to facilitate corruption or capture. Corruption is more likely because secret decisionmaking facilitates rent-seeking (soliciting bribes) by public officials; transparency processes make bribery more difficult and increase the likelihood that it will be exposed. "Capture" is the term used to describe domination of a regulatory process by the interests who are supposed to be regulated. When lawmaking (or administrative rulemaking) is done in secret, there is a greater likelihood that the information flow will be one sided.
    The Bush Administration's energy policy provides a good example of debates over the pros and cons of transparency in government. The administration developed its energy policy through non-transparent procedures. Vice-President Cheney met in private with a variety of interest groups, and the records of the meetings were not made available to the public. Critics charged that this secrecy allowed oil and coal interests to dominate the decision-making process to the detriment of the public interest. The administration defended the process, arguing that public processes would have inhibited free and frank discussion of the issues by the various interest groups. Whether or not this argument was correct in this particular context, it illustrates an important point. Transparency in government comes at a price. Transparent processes may be inefficient--what can be done in private in minutes may take hours in public. Transparent processes may also distort decision-making, forcing political actors to pander to public opinion at the expense of good policy.
    The case for transparency in government need not rest on consequences. It might also be argued that transparent government is required by the rights of citizens to meaningfully participate in democratic self-government. If public officials conduct business in private, then it becomes more difficult for citizens to make meaningful decisions at the ballot box.
    Transparency in the Market and the Boardroom The case for transparent markets is simple. Efficiency requires information. Efficient pricing, for example, requires that buyers know what they are buyng and sellers know what they are selling. "Buying a pig in a poke" is simply a colorful way of expressing the idea that a nontransparent transaction has occurred. Transparency is especially important in capital markets Securities regulation in the United States rests on the assumption that mandatory disclosure of accurate financial information will lead to investor confidence and facilitate efficient financial markets. Without transparency each investor would face either uncertainty or enormous information acquisition costs. Efficient capital markets produce enormous benefits, because they enable resources to be allocated to their highest and best use. Finally, transparency in corporate governance aims to prevent management from appropriating wealth owned by stockholders.
    There are, however, situations in which transparency is inconsistent with efficient markets. Trade secret law, for example, aims at the opposite of transparency. The theory is that the ability to keep secrets creates an incentive to develop new ideas, inventions, and processes; disclosure would allow competitors to appropriate the new idea without compensation, and hence would reduce the incentives for the creation of new knowledge. Similarly, corporations are not required to disclose business strategies and tactics.
    Transparent Judicial Procedures Civil litigation and criminal trials provide a final context in which transparency is an important value. When we think about the transparency of judicial procedures, there are two different groups for whom the process may be transparent or opaque. The first group is comprised of litigants (plaintiffs/defendants in civil litigation and defendants in criminal litigation). The second group consists of the public at large. Most legal systems place a higher value on transparency to participants than on transparency to the public. While it is not unusual for a hearing to be closed to the public, it is very unusual for a judicial proceeding to exclude the parties themselves. But there are important exceptions to this rule. Deliberations by both judges and juries are usually opaque. Thus, even the defendant in a criminal case is not allowed to observe the deliberations of the jury. A similar rule applies to judicial deliberations. For example, the conferences of an appellate court (e.g. the United States Supreme Court) are conducted in the strictest secrecy, as are the communications between among judges and between judges and their clerks. In these contexts, the thought is that open deliberations would actually distort the decision making process, leading to worse rather than better decisions.
    Conclusion Concern with process is ubiquitous in legal theory, and processes can be transparent or opaque. As a law student, you might begin to ask yourself about the effect of legal rules on transparency. Does this rule make the process more transparent or more opaque. When you encounter rules that render processes opaque, always ask why? There may be an answer to the question, but then again, there may not.
    Reference Mark Fenster, The Opacity of Transparency (March 15, 2005).

Saturday, December 03, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends In the Beginning Was the Deed : Realism and Moralism in Political Argument by Bernard Williams. Here's a short description:
    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. A central theme throughout is that political philosophers need to engage more directly with the realities of political life, not simply with the theories of other philosophers. Williams makes this argument in part through a searching examination of where political thinking should originate, to whom it might be addressed, and what it should deliver. Williams had intended to weave these essays into a connected narrative on political philosophy with reflections on his own experience of postwar politics. Sadly he did not live to complete it, but this book brings together many of its components. Geoffrey Hawthorn has arranged the material to resemble as closely as possible Williams's original design and vision. He has provided both an introduction to Williams's political philosophy and a bibliography of his formal and informal writings on politics. Those who know the work of Bernard Williams will find here the familiar hallmarks of his writing--originality, clarity, erudition, and wit. Those who are unfamiliar with, or unconvinced by, a philosophical approach to politics, will find this an engaging introduction. Both will encounter a thoroughly original voice in modern political theory and a searching approach to the shape and direction of liberal political thought in the past thirty-five years.
Williams was one of the very best! Highly recommended!

Hasen on the Future of Election Law The Download of the Week is No Exit? The Roberts Court and the Future of Election Law by Rick Hasen. Here is the abstract:
    This article, prepared for a symposium on voting rights in the South Carolina Law Review, examines the future of election law in the Roberts Court. Even before the death of Chief Justice William H. Rehnquist and the announced retirement of Associate Justice Sandra Day O'Connor, election law scholars had declared that the Supreme Court had reached "doctrinal interregnum." In the campaign finance arena, the Court's jurisprudence was becoming increasingly incoherent; voting rights law was said to be "at law with itself;" partisan gerrymandering claims in flux; and the question of Supreme Court oversight of the "nuts-and-bolts" of elections after Bush v. Gore a big mystery. With the change of two Justices on the Supreme Court, exit from doctrinal incoherence and uncertainty becomes possible. The replacement of Chief Justice Rehnquist with new Chief Justice John Roberts and the replacement of Justice O'Connor with a new Justice appointed by President Bush could provide an opening for major changes in Supreme Court election law doctrine. This is especially true with Justice O'Connor's departure, because she has held the swing vote in key election law cases. What sort of changes should we expect from the Roberts Court? Making predictions is exceedingly difficult when the swing votes likely will be held by those who have not expressed (or not expressed recently) views on these subjects, and concern for respecting (even wrong-headed) precedent could prove a strong force. And Justices' views certainly may change over time. Still, I work under the assumption that a conservative president who had apparently committed himself to appointing Justices in the mold of Justices Thomas and Scalia is unlikely to appoint Justices who in fact move the Court to the left, and could well move the Court to the right in key election law cases. The result is that 5-10 years from now, the ground rules for American political competition could undergo a major change. Within the next decade, we could well see deregulation of campaign financing, a limiting of Congressional power to impose national solutions to problems of minority voting rights, and an upholding of state power to redistrict for partisan gain and impose increasingly draconian election administration tools enacted in the name of fraud prevention. The ability of states to manipulate election rules for partisan gain may present the greatest danger, as the Court exits from that corner of the political thicket. For those who look to courts for the promotion of political equality, the signs are not encouraging.
Download it while its hot!

Friday, December 02, 2005
Dagan on Democratic Participation Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has posted The Currency of Democratic Participation on SSRN. Here is the abstract:
    Campaign finance reformers claim that the flow of contributions and expenditures undermines both political equality and the quality of public discourse. Their opponents criticize the regulation of political money, arguing that spending and giving money are legitimate forms of political speech, deserving constitutional protection. This debate is now deadlocked. With reform skeptics, this Essay brackets any collectivist concern about the effect of money on politics and refuses to distinguish the salient moments of the election period from day-to-day political participation. And yet, although my conclusions vastly differ from the typical recipes of reformers, they also depart quite significantly from the usual reaffirmation of the status quo advocated by reform skeptics. This Essay studies the individual right to democratic participation, understood as the right to participate in a political discourse composed of a delicate blend of preferences and reasons. It argues that spending money on political causes can be a valid form of communicating citizens' preferences and their relative intensity, and thus a legitimate component of this language of democratic participation. Unfortunately, this potential is currently unrealized and, furthermore, money currently threatens the integrity of our democratic discourse for two reasons: it reflects preferences in a distorted way due to wealth effects, and its use for politics may not leave enough space for reason-giving. If the expense of money is to enjoy the constitutional protections of political speech, political money needs to be purified from these two disturbing characteristics. This conversion requires the law of democratic participation to develop a new device: a clearinghouse of money for political causes. This clearinghouse should readjust the size of political donations and expenditures to reflect the intensity of the givers' and spenders' preferences. It should also ensure that political money is accompanied by reasoned communication, or that its use is otherwise structured to prevent undue dominance of preferences over reasons. Approximating success in accomplishing these two tasks is a condition for the rehabilitation of money expenditures in politics and its legitimate integration into our democratic discourse.

Parry on Raich John T. Parry (University of Pittsburgh School of Law) has posted Society Must Be [Regulated]: Biopolitics and the Commerce Clause in Gonzales v. Raich (Lewis & Clark Law Review, Vol 9, No. 4, pp. 853-877, 2005) on SSRN. Here is the abstract:
    This article - part of a symposium on the recnt Gonzales v. Raich decision - makes three points about the case. First, it suggests that Raich complicates the effort to define commerce clause doctrine. Although Raich employed the doctrinal structure created by the Lopez and Morrison decisions, the emphasis was entirely different, and perhaps the only clear doctrinal result of the decision is that pieces of comprehensive regulatory programs will be upheld precisely because they are part of a larger program. Put bluntly, the more Congress regulates, the more it can regulate. Second, this article contends that Raich exemplifies an idea of government power that assumes the rationality and desirability of regulation and that this assumption dovetails wtih Michel Foucault's theory of biopolitics, in which the power of the modern state turns on its ability to make live or let die. Specifically, this article explores what it means for constitutional law to accept the biopolitical nature of contemporary government power, particularly in the context of end of life decisions, as well as pain management. The third, concluding section briefly considers the possibility that biopolitics, while usually described in negative terms, has more complex normative implications.

Travel & Erratic Posting Times I'm on my way to China this morning & will be in Guangzhou, Beijing, and then Singapore until mid-December. Legal Theory Blog will continue in operation during this period, but posting may be somewhat erratic.

Baker on Market Definition Jonathan B. Baker (American University, Washington College of Law) has posted Market Definition on SSRN. Here is the abstract:
    This essay surveys important issues in antitrust market definition. It identifies settings in which market definition is useful, and evaluates methods of defining markets. It considers whether markets should be defined with respect to demand substitution only or whether supply substitution also should count. It addresses practical issues in defining markets, including the probative value of various types of evidence, how much buyer substitution is too much, application of the market definition algorithm of the Horizontal Merger Guidelines, the Cellophane fallacy, and the advantages and disadvantages of defining submarkets. It also evaluates several controversial approaches to market definition, including price correlations, shipment flows, critical loss analysis, and cluster markets.

Conference Announcement: International Disability Rights at Harvard
    HLS hosts planning session on international disability rights On Saturday, December 3, Harvard Law School will host a seminar to address international disability rights. As the United Nations proceeds with a three-year planning process to develop a new human rights treaty regarding the disabled, this seminar will offer a public forum for discussing the treaty and its implementation. "The treaty negotiations are at a crucial stage, and Harvard is providing an invaluable forum for considering innovative approaches to the convention's future monitoring and implementation," said Visiting Professor Michael Stein, a principal organizer of the event. "The seminar is unique because it will assemble representative delegations of National Human Rights Institutions from around the world to collectively work out their views on monitoring, and also allow input from non-governmental organizations, stakeholders and the talented Harvard faculty." The UN treaty will affect an estimated 600 million people with disabilities around the world. This conference will create an opportunity for scholars and representatives of international human rights organizations to discuss concerns, debate drafts and collaborate on implementation strategies. Speakers include Dr Timothy Shriver, chair of the board for Special Olympics International; Ambassador Luis Gallegos, permanent representative of Ecuador to the United States; and members of the HLS faculty. The event is co-sponsored by three programs at HLS: the Human Rights Program, East Asian Legal Studies and International Legal Studies Program.

Thursday, December 01, 2005
Cheh on Legislative Oversight of Police Mary M. Cheh (The George Washington University Law School) has posted Legislative Oversight of Police: Lessons Learned from an Investigation of Police Handling of Demonstrations in Washington, D.C. (Journal of Legislation, Vol. 32, 2005) on SSRN. Here is the abstract:
    There are various ways to oversee police behavior including internal discipline, civilian review boards, civil law suits, and criminal prosecutions. These are important tools but an equally important but less examined mechanism is legislative oversight, and, in particular, the legislative investigation. A legislature may choose to review police policies concerning the use of surveillance, informants and undercover operatives, the implementation of community policing, the use of force, eradication of gang activity, and perhaps most prominently in the post 9/11 world, counter terrorism initiatives. All of these matters involve policy decisions at the departmental level and not actions taken at the discretion of individual officers in the field. The aim of legislative oversight is not to micro-manage police decisions, but to structure those decisions in line with best practices and within constitutional boundaries. Acting through their elected representatives, communities can have a say, for example, about shoot to kill policies, random searches of people on busses and trains, and the keeping of dossiers on individuals and groups. This Article identifies the benefits and limits of local legislative investigations as a means of police oversight by looking at the 2003 investigation of the Metropolitan Police Department by the City Council of the District of Columbia. The investigation focused on the police mishandling of anti-globalization demonstrations held in Washington D.C. from 2000-2003 and led, ultimately, to the drafting of model legislation, "The First Amendment Rights and Police Standards Act of 2004," enacted in 2005. As the Article explains, legislative investigations enable the government to address police practices at a systemic level, are more likely to gain the co-operation of the police since the aim is not to affix blame per se, can more forward with relative speed, and are likely to result in improvements since the legislature is directly invested in the effort and controls the levers of reform. Legislative investigations also have some potential to counter the "dual messages" phenomenon that allows police to acknowledge the rules that limit their behavior but to flout them at the same time. Formal policies and official pronouncements of police departments never approve of violation of rights, or permit brutality, corruption, or unlawful conduct. But informal messages from police leaders, rank and file, citizen groups, or even the media may communicate a different set of norms which appear to look past or even encourage these kinds of transgressions. A legislative investigation can publicly affirm the need to adhere to the rules and show that there are consequences if police rules and constitutional rights are violated. Finally the article discusses the keys to conducting a successful legislative investigation of the police and describes the legislative changes resulting from the District of Columbia police investigation.

Benjamin on the National Television Ownership Cap Stuart Minor Benjamin (Duke University School of Law) has posted Evaluating the Federal Communications Commission's National Television Ownership Cap: What's Bad for Broadcasting is Good for the Country (William & Mary Law Review, Vol. 46, November 2004) on SSRN. Here is the abstract:
    In June 2003, the FCC issued a broad order on media ownership that aroused widespread opposition. After much public outcry, Congress voted to reject one of the changes - an increase in the percentage of households nationwide a company's stations could reach. In this article, I assess this dispute and the larger issues that it raises. I first consider what is really at stake in the national ownership cap, concluding that most of the proffered arguments against an increase are inapt, and that the only viable objection is that an increase in the cap makes it less likely that local stations will be able to exercise an effective veto over programming they deem unsuitable. At the same time, an increase in the cap does enhance the viability of the broadcast networks - a seemingly positive result. I argue, however, that we should avoid this enhancement of broadcasting's viability, as we should look forward to the demise of broadcasting.

Call for Papers: Empirical Legal Studies
    First Annual Conference on Empirical Legal Studies Announcement & Call for Papers (Submission Deadline: June 30, 2006) The inaugural EMPIRICAL LEGAL STUDIES CONFERENCE will be held at the University of Texas School of Law in Austin, Texas, on Friday 27–Saturday 28 October 2006 (ending by 2:00 on Saturday to allow most participants to return home Saturday afternoon). The conference will feature presentations of original empirical and experimental legal scholarship by leading scholars from a diverse range of fields. The Conference on Empirical Legal Studies is jointly organized by Cornell Law School, NYU School of Law and the University of Texas Law School. The 2006, 2007 and 2008 CONFERENCES will be held at University of Texas Law School, New York University School of Law and Cornell Law School, respectively. The conference organizers are: Jennifer Arlen (NYU), Bernard Black (Texas), Theodore Eisenberg (Cornell), Michael Heise (Cornell) and Geoffrey Miller (NYU). Conference Objectives: The conference's goals are: (i) to encourage and develop empirical and experimental scholarship on legal issues by providing scholars with an opportunity to present and discuss their work with an interdisciplinary group of scholars; and (ii) to stimulate ongoing conversations among scholars in law, economics, political science, finance, psychology, sociology, and other disciplines about research in this area. The conference’s audience will include paper presenters, commentators, and other attendees, and will include many of the nation’s leading empirical legal scholars. The goal is productive discourse on both particular papers and appropriate methodologies. Committed Participants: The following scholars have agreed to participate in the 2006 conference. Jennifer Arlen, NYU Bernard Black, Texas Charles Cameron, Princeton Steven Choi, NYU John Coates, Harvard Frank Cross, Texas Robert Daines, Stanford Shari Seidman Diamond, Northwestern and ABF John Donohue, Yale Theodore Eisenberg, Cornell Phoebe Ellsworth, Michigan Lee Epstein, Washington University, St. Louis Neal Feigenson, Quinnipiac John Ferejohn, Stanford and NYU Marc Galanter, Wisconsin Mitu Gulati, Georgetown Valerie Hans, Cornell Michael Heise, Cornell Donna Hitscherich, Columbia Keith Hylton, Boston University David Hyman, Univ of Illinois Dan Kahan, Yale Marcel Kahan, NYU Lewis Kornhauser, NYU Herb Kritzer, Wisconsin Stefanie Lindquist, Vanderbilt Kevin McGuire, Univ North Carolina Michelle Mello, Harvard Geoff Miller, NYU Dan Kahan,Yale Adam Pritchard, Michigan Jeffrey Rachlinski, Cornell Jennifer Robbennolt, Illinois Roberta Romano, Yale Mary Rose, Texas Joseph Sanders, Houston Jeffrey Segal, SUNY Stony Brook Charles Shipan, University of Iowa Charles Silver, Texas Dan Simon, USC James Spriggs, UC Davis Emerson Tiller, Northwestern Neil Vidmar, Duke W. Kip Viscusi, Harvard Paul Wahlbeck, George Washington Martin Wells, Cornell Justin Wolfers, Wharton School David Yermack, NYU We welcome submissions in all areas of empirical and experimental legal scholarship, including but not limited to the following general topic areas: banking and financial institutions bankruptcy civil rights and discrimination contracts criminal justice courts and judges corporate governance corporate law empirical methodology experimental health care (other than medical malpractice) intellectual property international relations juries, judges, and civil justice law and finance law and politics law and psychology law and society law and sociology medical malpractice other private law precedent and citations securities law tax and public finance torts venture capital and other private equity [please direct suggestions for additional topic areas to Bernie Black at] Submissions: Submissions for the Conference should be sent as email attachments no later than June 30, 2006 to: with copy to: Please specify the topic(s) for which you are submitting the paper (limit two). All submissions will be refereed. The number of accepted papers will depend on the number and quality of submissions. There is no publication commitment associated with the Conference, nor is previously published work eligible for consideration. There is no cost to register for the conference. Out-of-town paper presenters and commentators will receive payment of $800 to cover their expenses (if expenses are less than this, the remainder can be treated as an honorarium) (limited to one presenter per paper). Given respectable low-cost hotel options and a "state rate" for airfare, we expect that this amount will be sufficient to cover presenters’ travel and lodging and other costs. Presenters must attend the entire conference to receive the honorarium. General inquiries concerning the 2006 Conference should be sent to: Prof. Bernard Black University of Texas, School of Law and McCombs School of Business, (512) 471-4632 Registration requests and logistical inquiries should be directed to: Ms. Peggy Brundage, (512) 232-1373