Legal Theory Blog

All the theory that fits!


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

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Friday, June 30, 2006
Welcome to the Blogosphere . . . . . . to the Georgetown University Faculty Blog. Check out the live blogging by Rebecca Tushnet of a panel on Hamdan! And this post by Mark Tushnet on Hamdan.

Balkin on Hamdan Check out Jack Balkin on Hamdan: Hamdan and the NSA dispute. Here's a taste:
    While Stevens' Hamdan opinion appears on its surface to be merely concerned with statutory interpretation, it effectively undermines the Administration's strongest claims about Presidential power. Justice Kennedy's concurrence makes the constitutional points more explicitly, and that is why, I predict, his concurrence will become as important as the majority opinion itself.

Weisbach on Tax Expenditures David A. Weisbach (University of Chicago Law School) has posted Tax Expenditures, Principal Agent Problems, and Redundancy on SSRN. Here is the abstract:
    This paper considers tax expenditures from two related perspectives. First, it analyzes how the incentives on Congress to use a tax expenditure change when principal agent problems are considered. For example, it considers whether tax expenditures can reduce moral hazard or adverse selection problems created by delegations to expert agencies. Second, it considers the condition under which tax expenditures should be expected to be redundant with direct expenditures, as many are. The two, principal agent problems and redundancy, are related because redundancy is often seen as a solution to the principal agent problem. The paper concludes that both principal agent concerns and redundancy might lead to an increase in the use of tax expenditures, although the circumstances in which we should expect this are relatively narrow. The paper then examines the example of the low income housing tax credit, concluding that the credit should be replaced with a direct expenditure in the form of increased tenant vouchers.

Yale & Polsky on Reformng Deferred Compensation Taxation Ethan Yale and Gregg D. Polsky (Georgetown University Law Center and University of Minnesota Law School) have posted Reforming the Taxation of Deferred Compensation (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
    Executive pay is currently a topic of significant interest for policymakers, academics, and the popular press. Just weeks ago, in reaction to widespread press reports and academic criticism of extravagant executive perquisites, the SEC proposed new regulations designed to change fundamentally the manner in which executive compensation is reported to share-holders. Despite all of this attention, one significant aspect of executive deferred compensation has gone virtually unnoticed - the federal tax rules governing this form of compensation are fundamentally flawed and must be extensively over-hauled. These rules are flawed because they often create a significant incentive for companies and their executives to structure deferred, rather than current, compensation, thereby producing highly inefficient and inequitable results. This Article addresses potential legislative reforms that would remedy this problem by neutralizing the tax treatment of current and deferred compensation. While this neutrality goal, which was part of the recent proposals made by President Bush's Advisory Panel on Tax Reform, is easy to describe in general and conclusory terms, the devil is in the details. There has been little serious academic analysis of how to implement a set of tax rules that would create neutrality while avoiding undue complexity. This Article attempts to fill that void.

Maclin on DNA & the Fourth Amendment Tracey Maclin (Boston University - School of Law) has posted Is Obtaining an Arrestee's DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do? (Journal of Law, Medicine & Ethics, Vol. 33, No. 1, Summer 2006) on SSRN. Here is the abstract:
    An increasing number of states are enacting laws authorizing the forcible taking and analysis of DNA from certain categories of arrestees. For example, California's Proposition 69 requires state law enforcement officials to obtain DNA samples from certain arrestees. By 2009, Proposition 69 will require a DNA sample from every adult arrested for or charged with a felony. This article addresses the constitutionality, under the Fourth Amendment, of taking DNA samples from persons subject to arrest. In particular, the article focuses on the statutes of Virginia and Louisiana, which have authorized DNA sampling of persons arrested for violent crimes and sex offenses, and examines whether these laws are consistent with the Fourth Amendment's "special needs" doctrine as outlined by several Supreme Court rulings. The thesis of the article is that forcibly obtaining DNA from an arrestee violates the Fourth Amendment. There is little doubt these intrusions are searches under the Fourth Amendment. Moreover, I argue that this type of search cannot be upheld under the Supreme Court's special needs cases because obtaining a DNA sample is directly designed to promote the state's interest in solving crimes.

Austin on Civil Unions Graeme W. Austin (University of Arizona - James E. Rogers College of Law) has posted Essay: Family Law and Civil Union Partnerships - Status, Contract and Access to Symbols (Victoria University Wellington Law Review, Vol. 37, 2006) on SSRN. Here is the abstract:
    This essay locates New Zealand's civil union legislation within the dynamic between status and contract that animates modern family law. Status concerns who we are; contract concerns the transactions we can enter. Because family law is concerned with affective relationships, it cannot apprehend people only as the atomised individuals anticipated by the modernist emphasis on contractual relations. Family law acknowledges the relevance to legal issues of messy issues of personality. Among the most complex and powerful aspects of personality with which the law concerns itself is love. Love affects who we are and law affects what love can be. Law provides and constrains the symbolic repertoire that helps organise the way we think about our affective relationships. The enactment of civil union legislation was an enormously positive step. However, by continuing to deny homosexuals the ability to marry, the New Zealand state persists in denying homosexuals a key part of the symbolic repertoire that is relevant to the way people in love can conceptualise their relationships. The transactions the state permits us to enter, particularly transactions that are expressions of love, affect the construction of our identities, illustrating once again the deep links that exist between who we are and the contracts we can enter.

Thursday, June 29, 2006
Hamdan In a 5-3 decision (with Roberts not participating), the Supreme Court has ruled that the President lacked authority to establish military tribunals at Guantanmo Bay and that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda.
The opinions are here.
Lyle Denniston has a good post on Scotus Blog. The New York Times has the AP story here. Also at Scotus Blog, Marty Lederman has a post entitled Hamdan Summary -- And HUGE News. Here's a brief excerpt from Lederman's post:
    The Court appears to have held that Common Article 3 of Geneva aplies to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here. This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes). If I'm right about this, it's enormously significant.
The Washington Post's first story is here. Jurist has a post here.
Here is the syllabus:
    Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding: 1. The Government’s motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA §1005(e)(1) provides that “no court … shall have jurisdiction to hear or consider … an application for … habeas corpus filed by … an alien detained … at Guantanamo Bay.” Section 1005(h)(2) provides that §§1005(e)(2) and (3)-which give the D. C. Circuit “exclusive” jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions-“shall apply with respect to any claim whose review is … pending on” the DTA’s effective date, as was Hamdan’s case. The Government’s argument that §§1005(e)(1) and (h) repeal this Court’s jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction. A negative inference may be drawn from Congress’ failure to include §1005(e)(1) within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330. “If … Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases.” Id., at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh. The legislative history shows that Congress not only considered the respective temporal reaches of §§1005(e)(1), (2), and (3) together at every stage, but omitted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within that directive’s scope. Congress’ rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government’s interpretation. See Doe v. Chao, 540 U. S. 614, 621-623. Pp. 7-20. 2. The Government argues unpersuasively that abstention is appropriate under Councilman, which concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending courts-martial against service members, see 420 U. S., at 740. Neither of the comity considerations Councilman identified weighs in favor of abstention here. First, the assertion that military discipline and, therefore, the Armed Forces’ efficient operation, are best served if the military justice system acts without regular interference from civilian courts, see id., at 752, is inapt because Hamdan is not a service member. Second, the view that federal courts should respect the balance Congress struck when it created “an integrated system of military courts and review procedures” is inapposite, since the tribunal convened to try Hamdan is not part of that integrated system. Rather than Councilman, the most relevant precedent is Ex parte Quirin, where the Court, far from abstaining pending the conclusion of ongoing military proceedings, expedited its review because of (1) the public importance of the questions raised, (2) the Court’s duty, in both peace and war, to preserve the constitutional safeguards of civil liberty, and (3) the public interest in a decision on those questions without delay, 317 U. S, at 19. The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them. Pp. 20-25. 3. The military commission at issue is not expressly authorized by any congressional Act. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of] courts-martial shall not be construed as depriving military commissions … of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such … commissions.” 10 U. S. C. §821. Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions-with the express condition that he and those under his command comply with the law of war. See 317 U. S., at 28-29. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan’s commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court’s task is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified. Pp. 25-30. 4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49-72. (a) The commission’s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to “close.” Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and “other national security interests.” Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer’s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan’s commission permit the admission of any evidence that, in the presiding officer’s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other “protected information,” so long as the presiding officer concludes that the evidence is “probative” and that its admission without the accused’s knowledge would not result in the denial of a full and fair trial. Pp. 49-52. (b) The Government objects to this Court’s consideration of a procedural challenge at this stage on the grounds, inter alia, that Hamdan will be able to raise such a challenge following a final decision under the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to law. These contentions are unsound. First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years, he has no automatic right to federal-court review of the commission’s “final decision” under DTA §1005(e)(3). Second, there is a basis to presume that the procedures employed during Hamdan’s trial will violate the law: He will be, and indeed already has been, excluded from his own trial. Thus, review of the procedures in advance of a “final decision” is appropriate. Pp. 52-53. (c) Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan’s commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exigency that necessitates it. That understanding is reflected in Art. 36(b), which provides that the procedural rules the President promulgates for courts-martial and military commissions alike must be “uniform insofar as practicable,” 10 U. S. C. §836(b). The “practicability” determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The President here has determined, pursuant to the requirement of Art. 36(a), that it is impracticable to apply the rules and principles of law that govern “the trial of criminal cases in the United States district courts” to Hamdan’s commission. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. And even if subsection (b)’s requirements could be satisfied without an official practicability determination, that subsection’s requirements are not satisfied here. Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. There is no suggestion, e.g., of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan’s trial, any variance from the courts-martial rules. The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: The right to be present. See 10 U. S. C. A. §839(c). Because the jettisoning of so basic a right cannot lightly be excused as “practicable,” the courts-martial rules must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Art. 36(b). Pp. 53-62. (d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan’s challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62-68. (i) The appeals court relied on a statement in Johnson v. Eisentrager, 339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for observing and enforcing prisoners’ rights under the Convention. However, Eisentrager does not control here because, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520-521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63-65. (ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68. (iii) While Common Article 3 does not define its “regularly constituted court” phrase, other sources define the words to mean an “ordinary military cour[t]” that is “established and organized in accordance with the laws and procedures already in force in a country.” The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be “regularly constituted” only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69-70. (iv) Common Article 3’s requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72. (d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72. Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer, concluded in Parts V and VI-D-iv: 1. The Government has not charged Hamdan with an “offense … that by the law of war may be tried by military commission,” 10 U. S. C. §821. Of the three sorts of military commissions used historically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions, incorporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001. More importantly, the offense alleged is not triable by law-of-war military commission. Although the common law of war may render triable by military commission certain offenses not defined by statute, Quirin, 317 U. S., at 30, the precedent for doing so with respect to a particular offense must be plain and unambiguous, cf., e.g., Loving v. United States, 517 U. S. 748, 771. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions-the major treaties on the law of war. Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources, including, e.g., the International Military Tribunal at Nuremberg, which pointedly refused to recognize conspiracy to commit war crimes as such a violation. Because the conspiracy charge does not support the commission’s jurisdiction, the commission lacks authority to try Hamdan. Pp. 30-49. 2. The phrase “all the guarantees … recognized as indispensable by civilized peoples” in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary international law. The procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees. Moreover, various provisions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. Pp. 70-72. Justice Kennedy, agreeing that Hamdan’s military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19. Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which Kennedy,Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed an opinion concurring in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Parts I and II. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which Alito, J., joined as to all but Parts I, II-C-1, and III-B-2. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined as to Parts I through III. Roberts, C. J., took no part in the consideration or decision of the case.

Wednesday, June 28, 2006
Call for Papers: Multiculturalism and Moral Conflict at Durham
    Call for Papers Workshop on Multiculturalism and Moral Conflict The workshop will take place at the School of Government and International Affairs, Durham University on 21-23 March 2007. Main speakers:
      Gerald Gaus (University of Arizona) John Horton (Keele University) Peter Jones (Newcastle University) Chandran Kukathas (University of Utah) Tariq Modood (University of Bristol) Bhikhu Parekh (University of Westminster)
    We would especially welcome papers that address citizenship and identity, the politics of recognition, international law and multiculturalism, pluralism and moral conflict, history of the debate about multiculturalism, and the role of law and judicial systems in the following contexts:
      1. Multinational states or empires in which in principle there is no systematic discrimination between different nationalities or cultures, even if in practice here are clearly, or arguably, hegemonic nations or cultures. 2. Hierarchic states or empires, typically but not exclusively European colonial empires, in which a hegemonic nation, race or culture, is openly proclaimed and where there are explicit attempts to justify such hierarchies. This could include states or empires which recognise so-called domestic dependent nations. 3. States which have seen themselves as largely culturally homogenous but have been forced to confront the problems of multiculturalism as a result of immigration.
    The workshop aims to provide a unique interdisciplinary forum in which philosophers, political theorists, historians, social scientists, and others can come together to reflect on different issues of multiculturalism and moral conflict. Organisers of the workshop are Maria Dimova-Cookson ( and Peter Stirk ( Please email abstracts, no longer than 500 words to one of the organisers, as soon as you can, but not later than 30 September 2006. Email us if you have any questions. The workshop is a joint initiative of the Centre for the History of Political Thought at Durham University and the British Idealism specialist group at the PSA details of which can be found at

Call for Papers: Utilitiarism: An Ethics of Experience at the University of Rome
    Call for Papers The international conference UTILITARIANISM: AN ETHICS OF EXPERIENCE? will be held at the University of Rome "La Sapienza", Rome, June 14-16, 2007. The invited speakers are:
      Sergio Bucchi (University of Rome "La Sapienza") Sergio Cremaschi (University of Piemonte Orientale "A. Avogadro") Piergiorgio Donatelli (University of Rome "La Sapienza") Esperanza Guizan (University of Santiago de Compostela) Brad Hooker (University of Reading) Giorgio Lanaro (University of Milan) Eugenio Lecaldano (University of Rome "La Sapienza") Sebastiano Maffettone (Luiss Guido Carli, Rome) Maurizio Mori (University of Turin) Tim Mulgan (University of St. Andrews) Gianfranco Pellegrino (Luiss Guido Carli, Rome) Giuliano Pontara (University of Stockholm) Franco Restaino (University of Rome "Tor Vergata") Frederick Rosen (Bentham Project, University College of London) John Skorupski (University of St. Andrews)
    Submitted papers, in Italian and English, will be accepted. Send a proposal - max. 350 words - prepared for blind referee (put on a separate page name and academic affiliation) - within December 20th 2006 to the following e-mail address: Notification of acceptance will be given within March 31st 2007. Some expenses of accepted speakers will be reimbursed. The Conference has a general scope. Nevertheless, among possible topics to be discussed are the following:
      - utilitarianism and the virtues - the demandingness objection to consequentialism - Henry Sidgwick and his intuitionist Utilitarianism - utilitarianism and future generations - evolutionism and classical utilitarianism - hedonism and motivation - utilitarianism and global poverty - bioethics and utilitarianism - special duties and utilitarianism - utilitarianism and distributive justice - forms and types of utilitarianism (rule- and act-utilitarianism, collective and individual utilitarianism, and so on).

Conference Announcement: Social Sciences & Democracy at Ghent
    CONGRESS ANNOUNCEMENT The Centre for Logic and Philosophy of Science of Ghent University, Belgium invites you for a conference: The Social Sciences and Democracy: a philosophy of science perspective 28th - 30th of September 2006 Ghent, Belgium Keynote speakers are: Patrick Baert (University of Cambridge) James Bohman (Saint Louis University) Steve Fuller (University of Warwick) Harold Kincaid (University of Alabama) Philip Mirowski (University of Notre Dame) Mark Risjord (Emory University) Stephen Turner (University of South Florida) The program is now available on the website: A linked workshop on ‘Science and Social Movements. Communicating Facts Across Expert Communities‘ will take place in Brussels on the 27th of September, see:

Tuesday, June 27, 2006
Welcome to the Blogosphere . . . . . . to PLF on Eminent Domain, the Pacific Legal Foundation's blog on eminent domain.

Pardo on Neuroscience Evidence Michael S. Pardo (University of Alabama School of Law) has posted Neuroscience Evidence, Legal Culture, and Criminal Procedure on SSRN. Here is the abstract:
    Proposed lie-detection technology based on neuroscience poses significant challenges for the law. The law must respond to the science with an adequate understanding of such evidence, its significance, and its limitations. This paper makes three contributions toward those ends. First, it provides an account of the preliminary neuroscience research underlying this proposed evidence. Second, it discusses the nature and significance of such evidence, how such evidence would fit with legal practices and concepts, and its potential admissibility. Finally, it analyzes the constitutional protections that may limit the compelled production of such evidence.

Schkade, Sunstein, and Hastie on Deliberation and Polarization David Schkade , Cass R. Sunstein and Reid Hastie (University of Texas at Austin - Department of Management Science & Information Systems , University of Chicago - Law School and University of Chicago - Graduate School of Business) have posted What Happened on Deliberation Day? on SSRN. Here's the abstract:
    What are the effects of deliberation about political issues? This essay reports the results of a kind of Deliberation Day, involving sixty-three citizens in Colorado. Groups from Boulder, a predominantly liberal city, met and discussed global warming, affirmative action, and civil unions for same-sex couples; groups from Colorado Springs, a predominately conservative city, met to discuss the same issues. The major effect of deliberation was to make group members more extreme than they were when they started to talk. Liberals became more liberal on all three issues; conservatives became more conservative. As a result, the division between the citizens of Boulder and the citizens of Colorado Springs were significantly increased as a result of intragroup deliberation. Deliberation also increased consensus, and dampened diversity, within the groups. Implications are explored for the uses and structure of deliberation in general.

Gersen on Temporary Legislation Jacob E. Gersen (University of Chicago - Law School) has posted Temporary Legislation (University of Chicago Law Review, 2006) on SSRN. Here is the abstract:
    This paper provides a descriptive, positive, and normative analysis of temporary legislation, statutes containing a clause terminating legal authority on a specified future date. Notwithstanding the fact that a significant portion of the legislative docket consists of statutes that terminate automatically absent affirmative Congressional reauthorization in the future, the political dynamics of such statutes remain significantly under-theorized. Yet, temporary statutes have a long and storied pedigree both in the United States and elsewhere. After a historical overview, the paper outlines the major conceptual features of temporary statutes and demonstrates the implications for allocations of power and responsibility within and among the three branches of government, with a particular emphasis on the political economy of temporary legislation. Lastly, using a mixture of theoretical analysis and a case study, the paper argues for greater reliance on temporary statutes as a mechanism for responding to newly recognized risks.

Cox on Redistricting Institutions Adam B. Cox (University of Chicago - Law School) has posted Designing Redistricting Institutions on SSRN. Here is the abstract:
    Recent movements to reform redistricting in the United States have focused almost exclusively on the possibility of replacing state legislatures with nonpartisan or bipartisan commissions. The nearly exclusive focus on who draws districts overlooks at least two other ways to reform redistricting: by altering the decision rules that constrain legislatures when they redistrict; or by changing the institutional structures available to review legislatures' initial decisions. This Article sketches the broader suite of options and introduces a novel decision-rule constraint - deferred redistricting implementation. The deferred implementation rule would leave legislatures with authority to craft redistricting plans after each census, but the rule would defer the implementation of those plans for a few election cycles. Deferred implementation creates a partial temporal veil of ignorance that would curtail egregious partisan gerrymanders. In addition, it would improve the incentives of legislators in charge of drawing district lines, making them less interested in using the redistricting process to pursue their political self interest.

Monday, June 26, 2006
Conkle on Fundamentalism Daniel O. Conkle (Indiana University School of Law-Bloomington) has posted Secular Fundamentalism, Religious Fundamentalism, and the Search for Truth in Contemporary America (Journal of Law and Religion, Vol. 12, p. 337, 1995-96) on SSRN. Here is the abstract:
    In this article, I suggest that America's ongoing culture war is a product, in part, of an epistemic crisis that confounds our collective search for truth. In a previous article addressing aspects of this topic, I expressed concerns about religious fundamentalism. Here, I explore the ways in which secular thinking might likewise be described as “fundamentalist.” In particular, I discuss secular fundamentalism in textual interpretation, secular fundamentalism in the form of political liberalism, and comprehensive secular fundamentalism, which extends to private questions of truth. I then discuss the various problems - not only political, but also theological - that are raised by fundamentalist thinking, whether religious or secular in nature. In place of these various sorts of fundamentalism, I advocate a dialogic, multi-lingual search for truth, a search that would give meaningful consideration to moral arguments of all types - not only in private life, but in the public domain as well.

Estlund on Arbitration Agreements & Non-Compete Covenants Cynthia L. Estlund (New York University - School of Law) has posted Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law on SSRN. Here is the abstract:
    The employment relationship is governed largely by contract, but with a heavy overlay of “rights”: minimum terms and individual rights that are established by external law and typically non-waivable. But some terms of employment are governed neither by ordinary contract nor by ordinary rights, nor even by ordinary waivable rights. Consider the two most controversial instruments in employment law today: non-compete covenants (NCCs) and mandatory arbitration agreements (MAAs). Both take the form of written contracts that waive important employee rights (the right to compete post-employment, the right to litigate future claims); both are subject to substantive criteria of validity that are set by external law. Both bodies of law may be usefully described as recognizing “conditionally waivable” rights. This paper aims first to show structural parallels between NCCs and MAAs that place them at a distinct intermediate point along the spectrum between non-waivable rights and ordinary contract that I call “conditional waivability.” Second, it seeks to uncover a common logic underlying the law's choice of this particular hybrid of rights and contract. The linchpin of that common logic lies in the the threat that unregulated waiver of one right (the right to compete or to litigate future claims) poses to an adjacent employee right that the law deems non-waivable. Third, the paper deploys that underlying logic to offer a critical assessment of the law governing NCCs and MAAs. Finally, the paper tentatively explores the broader potential usefulness of conditional waivability as a way of regulating some terms of employment. The intriguing potential of conditional waivability lies in its injection of some of the virtues of contract – especially flexibility and variability in the face of widely divergent and changing circumstances – into the pursuit of public goals and the realization of rights in the workplace.

Corn on Kosovo & the War Powers Resolution Geoffrey S. Corn (South Texas College of Law) has posted Kosovo, and the Final Destruction of the War Powers Resolution (William & Mary Law Review, Vol. 42, p. 1149, 2001) on SSRN. Here is the abstract:
    The United States air campaign to compel Serbia to halt military ethnic cleansing in Kosovo was the first combat operation conducted for more than sixty days without express congressional authorization. The decision by President Clinton to commit the armed forces of the United States to combat action as part of the NATO led campaign without seeking congressional authorization triggered a judicial challenge by a number of legislators led by Representative Tom Campbell of California. Representative Campbell brought the challenge based on his assertion that the President was acting in direct violation of both the Constitution and the War Powers Resolution. Unlike similar challenges to prior presidential military commitments, the duration of the combat operations against Serbia precluded any "implied sixty day clock" theory of compliance with the Resolution. The challenge was ultimately dismissed on justiciability grounds by the United States Court of Appeals for the District of Columbia. This article analyzes the nature of the military operations and the basis for the dismissal, and asserts that the true effect of the court's decision was to effectively nullify the significance of the War Powers Resolution as a barrier to presidential war making initiatives. In so doing, the court confirmed the continuing validity of longstanding separation of power jurisprudence related to war making decisions.

Cunningham on Common Law as an Interative Process Lawrence A. Cunningham (Boston College Law School) has posted The Common Law as an Iterative Process: A Preliminary Inquiry (Notre Dame Law Review, Vol. 81, No. 3, pp. 747-782, 2006) on SSRN. Here is the abstract:
    The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be hard to escape. Escape occurs through a second attribute of iterative processes, called self-similarity. Self-similarity in an iterative process exists when the output of one operation closely resembles the output in the next operation. Applications of an existing rule to new disputes bear that quality when disputes generated by the rule's initial conditions continue to be resolved in the same way. Non-self-similar applications of a rule involve departures from earlier formulations. When self-similarity dominates, the population of disputes cognizable under a rule is stable. Evolution and articulation of social norms promotes growth of non-self-similarity which threatens stability in the population of disputes. Such threats and path dependency created by initial conditions are overcome by what this Article calls judicial bifurcation, meaning a splintering of the input rule in a later dispute so that the population of disputes attracted by the population of rules regains stability. This produces a dominant systemic tendency towards stability in the population of disputes attracted by the population of rules. This systemic tendency puts limits on the systemic significance of judicial discretion. The fabric of the common law absorbs social norms, more than any idiosyncratic prejudices or tastes of particular judges. Importance of facts captured by sensitive dependence on initial conditions entails a substantial complexity in law that demands a close and careful reading of individual cases to understand law. Yet resulting systemic stability and influence of bifurcations reveal a systemic simplicity in the common law process, entailing also a need to study rhythms of case law dispute resolution.

Sunday, June 25, 2006
Legal Theory Calendar
    Wednesday, June 28
      University of Cincinnati Law: Douglas Mossman, Predicting “Restorability” of Incompetent Criminal Defendants
    Thursday, June 29
      Florida State Law: Lorelei Ritchie de Larena, Florida State University College of Law

Legal Theory Lexicon: The Attitudinal Model & the New Institutionalism
    Introduction The legal academy is not the only locus for serious study of the law. Legal phenomena are examined in a variety of other disciplines—ranging from philosophy and sociology to history and anthropology, but political science (or “politics” or “government”) is the academic discipline that is most strongly associated with the study of law outside of the law schools. This entry in the Legal Theory Lexicon introduces two distinctive traditions for the study of the law from the perspective of political science. The first of these is the so-called “attitudinal model”—an approach that views courts—especially the United States Supreme Court—as policymaking institutions that are similar to legislatures and administrative agencies. The second approach is sometimes called “the new institutionalism” and it integrates a concern for legal doctrine and rules with other social science tools.
    As always, this entry in the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. Many of you were political science majors, and this may be “old hat” to you, but others will be exposed to these ideas for the first time. A word of warning: the dominant response of the legal academy to the study of law by political scientists is ignorance. It may seems strange, but it is nonetheless true that many law professors have barely heard of the attitudinal model and would have to guess what the “new institutionalism” might be. Don’t make this mistake. Political scientists bring a rich set of tools and concepts to legal theory, and the legal academy has much to learn from them. One more thing: this entry discusses only a small portion of the political science that is relevant to the study of law. Political science includes many different approaches—including rational choice and game theoretic approaches that have much in common with what is called “law and economics” in the legal academy.
    The Legal Model and the Attitudinal Model Suppose you were a political scientist and you wanted to explain and predict the behavior of a court—for example, the United States Supreme Court. What variables would serve as the best predictors? One possibility is that you would seek to predict Supreme Court decisions using legal concepts. For example, you might use the text of the Constitution as the basis for predicting the outcome of constitutional cases or the text of federal statutes to predict the outcome of cases that hinged on questions of statutory interpretation. Let’s call this approach to the explanation and prediction of legal decisions, the “legal model.”
    Even first-year law students are likely to see that the legal model may not do a very good job of predicting the outcome of appellate cases. Once you study constitutional law, you are likely to learn that decisions of the contemporary Supreme Court are rarely based on a simple application of preexisting legal rules to the facts (as they are presented to the Court given the procedural posture of the case). Instead, contemporary legal education is likely to emphasize the political dimension of the Supreme Court—with liberal, moderate, and conservative Justices lining up in more or less predictable patters, especially with respect to certain politically-charged issues—implied fundamental rights, federalism, and criminal procedure, for example.
    Within the legal academy, the connection between judicial decisionmaking and politics is associated with American legal realism (and, more recently, with the Critical Legal Studies movement). But in political science, this same insight has been developed in an empirically more rigorous way, and frequently is called “the attitudinal model.”
    The basic insight of the attitudinal model is that judicial decisions can, in at least some circumstances, be explained and predicted by the attitudes of judges. Thus, a simple attitudinal model might code each justice as occupying a point on a real line from left to right. A judge at the left-most point on the line would be very liberal. A judge on the right-most point of the line would be very conservative. The model might then predict how a judge’s attitudes (or position in attitudinal space) would correlate with positions on particular issues. Conservative judges are likely to vote against a right to abortion; liberal judges may be likely to uphold assertions of national power against challenges on federalism grounds.
    Which model does a better job of predicting judicial behavior? If we limit our attention to the United States Supreme Court, it looks, at first blush, like the attitudinal model “beats the pants” off the legal model. But appearances may be deceiving. The United States Supreme Court does not hear very many “easy cases”—cases in which the application of preexisting legal rules control the outcome of the dispute. Indeed, the Supreme Court has a discretionary appellate jurisdiction (for the most part), and the Court rarely grants the writ of certiorari in cases in which the law is clear. Instead, the Court tends to focus on those cases in which the law is uncertain, the lower courts are divided, or there is a perceived need for a change in the law. Moreover, cases which are controlled by clear rules of law are usually settled. It is extremely rare for a party to spend the hundreds of thousands of dollars required to litigate a case to the Supreme Court on a sure-fire loser!
    There is another reason why we would not expect the Supreme Court’s decisions to be predicted by a simple “legal model.” The Court does not consider itself bound by its own prior decisions. Given that the Court has the legal power to depart from precedent, it is hardly surprising that the Court does not behave as if it were so bound.
    When the legal model is applied to the decisions of lower courts and to the behavior of litigants who settle disputes “in the shadow of the law,” legal rules and doctrines have much more explanatory power. For example, defendants will rarely pay large sums to settle claims that have no legal merit. Of course, this point needs to be qualified in various ways. If a case has sufficient merit to get to a jury, it may have settlement value, even if an “ideal” jury would find against the plaintiff. Similarly, litigation itself is costly, and meritless claims may have “nuisance value” so long as they cannot be thrown out of court at an early stage—by a demurrer or motion to dismiss for failure to state a claim upon which relief can be granted.
    More broadly, most legal practitioners (lawyers and judges, for example) are likely to think that a very simple attitudinal model is missing something. Even if politics is important and legal doctrine is not the only important factor that shapes legal behavior, any story about legal institutions that leaves the law out of the story seems to be missing something that is crucially important—both to the understanding of the law and to understanding American politics.
    The New Institutionalism And that brings us to what is sometimes called “the new institutionalism,” a somewhat eclectic movement within political science that seeks to integrate legal doctrine and the distinctive character of legal institutions in political-science approaches to the study of law. When I say “somewhat eclectic,” I mean that there is no single methodology or doctrine that characterizes all of the work that fits under the “new institutionalism” umbrella. And of course, the name of this approach, the new institutionalism, points backwards to an old institutionalism—the approach commonly associated with figures like Corwin and McCloskey (and more recently with Martin Shapiro). One way to look at the work in the “new institutionalist” tradition is to use the distinction between internal and external perspectives that is familiar to legal theorists.
    From the internal perspective, new institutionalist work is work that takes “the law,” broadly defined to include legal institutions, concepts, categories, and doctrines seriously. But new institutionalist work is not the same as doctrinal legal scholarship. The new institutionalists situate “the law” in political contexts. Where a doctrinalist analysis aims at producing a restatement of a legal rule, institutionalists are more likely to be focused on an elaboration of the development of legal thought in a wider social context.
    From the external perspective, new institutionalists are interested in the causal influences on and of legal phenomenon. Some new institutionalists embrace the attitudinal model as a starting point for their analysis, whereas others may be more critical of attitudinalism, but any work that looks at law from the external perspective will step outside of legal doctrine and ask questions about the causal influences that shape legal institutions.
    Conclusion It is hardly surprising that a brief Lexicon entry cannot do justice to a whole body of work. The best way to learn about the attitudinal model and the new institutionalism is to read some work. If I might be permitted to play favorites, I would strongly suggest The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman as a book the exemplifies the important contribution that political science can make to the study of law!
      Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997).
      Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, North Carolina: Duke University Press, 1993).
      Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993).
      Martin Shapiro, Law and Politics in the Supreme Court (New York, Free Press 1964).
      Howard Gillman, “What Has Law Got to Do With It?” 26 Law & Social Inquiry 465-504 (2001).
      Rogers Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," 82 American Political Science Review 89-108 (1988). (available on JSTOR, follow this link.)
      Supreme Court Decision-Making: New Institutionalist Approaches (edited by Howard Gillman & Cornell W. Clayton) (University of Chicago Press, 1999).
      The Supreme Court in American Politics: New Institutionalist Interpretations (edited by Howard Gillman & Cornell W. Clayton) (University Press of Kansas, 1999).

Saturday, June 24, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Yale Law School and the Sixties: Revolt and Reverberations by Laura Kalman. Here's a blurb:
    The development of the modern Yale Law School is deeply intertwined with the story of a group of students in the 1960s who worked to unlock democratic visions of law and social change that they associated with Yale's past and with the social climate in which they lived. During a charged moment in the history of the United States, activists challenged senior professors, and the resulting clash pitted young against old in a very human story. By demanding changes in admissions, curriculum, grading, and law practice, Laura Kalman argues, these students transformed Yale Law School and the future of American legal education. Inspired by Yale's legal realists of the 1930s, Yale law students between 1967 and 1970 spawned a movement that celebrated participatory democracy, black power, feminism, and the counterculture. After these students left, the repercussions hobbled the school for years. Senior law professors decided against retaining six junior scholars who had witnessed their conflict with the students in the early 1970s, shifted the school's academic focus from sociology to economics, and steered clear of critical legal studies. Ironically, explains Kalman, students of the 1960s helped to create a culture of timidity until an imaginative dean in the 1980s tapped into and domesticated the spirit of the sixties, helping to make Yale's current celebrity possible.

Download of the Week The Download of the Week is Contract Formalism, Scientism, and the M-Word: A Comment on Professor Movsesian's Under-Theorization Thesis by Jeff Lipshaw. Here is the abstract:
    In two recent essays, Professor Mark L. Movsesian has suggested that a significant difference between the classical formalism of Williston and the formalism of contemporary contracts scholars is the extent to which the earlier work was under-theorized. I want to suggest an area in which there is a consistency to the under-theorization between the classical and the modern contract formalists: the extent to which theorization in anything that approaches metaphysics is, and has been, consistently anathema. Modern theorizing is overwhelmingly of a particular form: dispassionate social science inquiry into how we tick, rarely questioned but implicit norms shaped solely around the utilitarian, if not material, consequence of choices, all seasoned by the occasional post-modern expression of futility and desperation around the indeterminacy of moral issues. It does not address the way we might think about solving the problem outside of the formal models (whether classically or economically based) of the law. In a brief response to Professor Movsesian, I encourage debating over contract law not just in the context of pragmatics of instrumental reason, but as part of a broader inquiry into and struggle with the ends to which any endeavor is directed.
Download it while it's hot!

Friday, June 23, 2006
Findley & Scott on Tunnell Vision in Criminal Cases Keith A. Findley and Michael Scott (University of Wisconsin Law School and University of Wisconsin Law School) have posted The Multiple Dimensions of Tunnel Vision in Criminal Cases (Wisconsin Law Review, Vol. 2006, No. 2) on SSRN. Here is the abstract:
    The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent. The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision. Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system. This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review. The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies - cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal. Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule. This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision.

Leib on Appiah Ethan J Leib has posted Rooted Cosmopolitans on SSRN. Here is the abstract:
    This is a review essay of Kwame Anthony Appiah's recent book, Cosmopolitanism (Norton 2006).

Joondeph on O'Connor's Federalism Brad Joondeph (Santa Clara) has posted The Deregulatory Valence of Justice O'Connor's Federalism on SSRN. Here is the abstract:
    When Justice O'Connor announced her retirement in July 2005, reflections on her career teemed with references to her role as a leader of the Rehnquist Court's federalism revival. But the common perception of O'Connor as an ardent defender of the states' independent policymaking authority is grounded in a narrow understanding of constitutional federalism - one that focuses primarily, if not exclusively, on the limits of the national government's power. Constitutional federalism also involves a variety of structural constraints on state power, constraints that are designed to protect the interests of the nation as a whole. And in cases implicating these union-preserving provisions and doctrines - such as preemption and the dormant Commerce Clause - O'Connor did not demonstrate a similar dedication to state autonomy. Rather, her voting record was no more protective of the states' independent authority than the average justice with whom she served. This article presents a empirical assessment of Justice O'Connor's voting record in the full range of cases addressing the Constitution's federalism-based limits on governmental power, comparing her record to that of the justices with whom she served. It demonstrates that her reputation as a strong proponent of vibrant state autonomy needs to be tempered, for it is only accurate with respect to disputes about the powers of the national government. If we expand the universe of federalism cases to include those involving the Constitution's structural limits on the states, O'Connor's dedication to state autonomy appears rather tepid. In fact, an equally prominent theme, especially in the second half of her tenure on the Court, is that she tended to disfavor government regulation of any sort, whether it emanated from Congress or the states.

New Issue of YLJ Online The June 20006 isssue is online! Jamal Greene has Beyond Lawrence: Metaprivacy and Punishment:
    Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill’s On Liberty–and communitarian–William Eskridge has described it as the gay rights movement’s Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality.
Douglas G. Baird and Donald S. Bernstein have Absolute Priority, Valuation Uncertainty, and the Reorganization Bargain
    In a Chapter 11 reorganization, senior creditors can insist on being paid in full before anyone junior to them receives anything. In practice, however, departures from “absolute priority” treatment are commonplace. Explaining these deviations has been a central preoccupation of reorganization scholars for decades. By the standard law-and-economics account, deviations from absolute priority arise because well-positioned insiders take advantage of cumbersome procedures and permissive judges.
And there is a colloquium on Akhil Reed Amar's America's Constitution and Jed Rubenfeld's Revolution by Judiciary with contributions from Stephen Breyer, Jeb Rubenfeld, Akhil Amar, Michael Paulsen, and Jeff Powell.

Thursday, June 22, 2006
Parry & Hibbard on Sentimental Heroines John T. Parry and Andrea L. Hibbard (Lewis & Clark College - Law School and Lewis & Clark College) have posted Law, Seduction, and the Sentimental Heroine: The Case of Amelia Norman on SSRN. Here is the abstract:
    This article examines the notorious mid-nineteenth-century American trial of Amelia Norman, who was acquitted – very much against the weight of the evidence – of attempting to kill the man who seduced her. In particular, we explore the role in the trial and its aftermath of the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's The Coquette and Susanna Rowson's Charlotte Temple. In Norman's case, once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, not attempted murder. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgments on her behalf. For example, Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. Going further, the common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Other women facing similar charges used the same legal strategy to gain acquittals in a substantial number of cases. Indeed, Norman's sentimental strategy proved so powerful that men on trial for killing their wive's seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms through the so-called honor defense. In the end, then, Norman's trial fostered legal reform, but it also suggested – as Lydia Maria Child's fictionalization of the case in Rosenglory recognized – that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. In addition to its legal, literary, and historical insights that it provides, we also intend this article to contribute to debates on the nature of scholarship in law and literature. Scholars such as Wai Chee Dimock have argued for a focus on the historical and historically shifting relations between law and literature - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). We would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. This project, then, responds to Gregg Crane's call for attention to the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice. The extended story of Amelia Norman, in short, not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction.

Cho on Doha Sungjoon Cho (Chicago Kent College of Law) has posted Doha's Development (Berkeley Journal of International Law, Vol. 25 No. 2, 2006, Forthcoming) on SSRN. Here is the abstract:
    This Essay argues that the current development crisis within the Doha Round is inextricably linked to the nature of modern day trade negotiations. This Round reveals a bargaining process in which the powerful can too easily exploit and prevail over the powerless. This process is also vulnerable to domestic political maneuvers such as capture. Under these circumstances, poor countries' development concerns are not well represented, which accounts, despite years of talks, for the current sorry state of the negotiational outcome on agricultural subsidies and tariffs. To overcome these flaws of trade negotiation, this Essay suggests that certain core legal precepts, such as antiprotectionism, should limit ability to pursue mercantilist options. Adjudication under the WTO dispute settlement mechanism can also provide further discipline over the negotiation process by shedding a legal light on power differential. To tackle the problem of capture, a “bottom-up” formulation of negotiation positions through active public participation in the domestic arena will change the dynamic of the “two-level game” and thus deliver negotiating positions that cater to the broad public welfare, not to the most powerful special interests.

Conference Announcement: Ethical Naturalism at Durham
    Conference: Problems and Prospects for Ethical Naturalism A postgraduate conference at St John's College, Durham University, UK 11th - 12th August 2006 Keynote speakers: Mary Midgley and Alexander Miller Alongside the seemingly inexorable march of scientific discovery, the doctrine of philosophical naturalism, variously understood, has grown to approach the status of orthodoxy, both in philosophy departments and in secular culture at large. To many it seems that the natural sciences, and especially the neo-Darwinian synthesis, provide overwhelming support for the view that human beings are continuous with the world amenable to study by the natural sciences. There are, it might be suggested, no chasms in nature. Within this context there is a pressing need to understand the relationship between man and the natural world in which he finds himself. The natural world becomes a source of moral value and, indeed, a heightened source of moral problems. Thus, ethicists are increasingly looking to the natural world for the basis of morality. It is against this backdrop that we hold a conference entitled 'Problems and Prospects for Ethical Naturalism'. The conference will be relevant not only to students of ethics, but to anyone interested in philosophical method, especially the application to philosophical issues of the natural and human sciences. This conference is promarily intended for the benefit of postgraduate students, but all are welcome to attend. Please visit the website for further information and registration form: Contact Liz McKinnell ( Last date for registration: July 31st

Wednesday, June 21, 2006
Lipshaw on Contract Theory Jeff Lipshaw (Tulane) has posted Contract Formalism, Scientism, and the M-Word: A Comment on Professor Movsesian's Under-Theorization Thesis on SSRN. Here is the abstract:
    In two recent essays, Professor Mark L. Movsesian has suggested that a significant difference between the classical formalism of Williston and the formalism of contemporary contracts scholars is the extent to which the earlier work was under-theorized. I want to suggest an area in which there is a consistency to the under-theorization between the classical and the modern contract formalists: the extent to which theorization in anything that approaches metaphysics is, and has been, consistently anathema. Modern theorizing is overwhelmingly of a particular form: dispassionate social science inquiry into how we tick, rarely questioned but implicit norms shaped solely around the utilitarian, if not material, consequence of choices, all seasoned by the occasional post-modern expression of futility and desperation around the indeterminacy of moral issues. It does not address the way we might think about solving the problem outside of the formal models (whether classically or economically based) of the law. In a brief response to Professor Movsesian, I encourage debating over contract law not just in the context of pragmatics of instrumental reason, but as part of a broader inquiry into and struggle with the ends to which any endeavor is directed.
Lipshaw is an incredibly interest and creative thinker!

New Legal Realism Check out the website for this project-sponsored in part by the American Bar Foundation. Here's a bit from the page:
    The New Legal Realism Project (NLR) was initially sponsored by the American Bar Foundation and the Institute for Legal Studies at the University of Wisconsin Law School. The Project's goal is to develop rigorous, genuinely interdisciplinary approaches to the empirical study of law. In recent years, legal academics have shown renewed interest in social science. However, to date there has been no organized paradigm within the legal academy for translating and integrating diverse social science disciplines and methodologies. NLR scholarship pays systematic attention to this process of translation and integration. Like the "old" legal realists, we seek to bring the best of current social science and legal scholarship to bear on important policy issues of our day - but with the benefit of several generations of new knowledge.

Kochan on Statutory Limitations on Presidential Nominations Donald Kochan (Chapman University - School of Law) has posted The Unconstitutionality of Class-Based Statutory Limitations on Presidential Nominations: Can a Man Head the Women's Bureau at the Department of Labor? on SSRN. Here is the abstract:
    Can a man be the Director of the Women's Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women's Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters? This Article's case study is particularly relevant today, examining just how far Congress can go to limit the discretion of Executive authority. This Article examines instead the statutory ability to, ex ante, limit the President's choice of nominees. It examines the role of the Senate and Congress in the pre-selection criteria for nominees of the President to fill Officer positions within the United States government. Can sex, race, sexual orientation, economic status, or whether a nominee is a member of a particular organization be statutorily mandated (or prohibited) to limit the discretion of Presidential nominations for any particular position for Officers of the United States? Any such preferences can be taken into account as to whether the Senate will provide its advice and consent to any particular nomination, but it is unconstitutional to place such class-based preferences in statutory, pre-nomination mandates and restrictions. This Article argues that class preferences belong in the decision whether to provide advice and consent and not in pre-nomination statutory restrictions. This Article uses one example, the pre-nomination, statutory limitation regarding the Women's Bureau at the Department of Labor, to demonstrate the illegitimacy of statutory limitations on the President's nomination power based on class preferences. The place for the invocation of preferences is in the post-nomination/advice and consent process - not in statutory mandates. This Article concludes that the Constitution precludes Congress from placing limitations on the presidential nomination power. Mandatory, statutory pre-nomination limitations are simply beyond the Senate's advice and consent power.

Tuesday, June 20, 2006
Tuesday Calendar
    CERSA (Université de Paris 2): Lawrence Solum (University of Illinois), Legal Complexity, Phronesis, and Equity. This event will be held at the Salle de Séminaire 3 ème étage, 10 rue Thénard F-75005 Paris, M° Cluny, Sorbonne.
    University of Arizona Law: Kirsten Engel, "Who's Afraid of Overlapping Federal and State Jurisdiction?: Harnessing the Benefits of Competitive Vertical Federalism"

    "The homeless have questionable and variable access to legitimate private space. They live over time with little consistent unperturbed space to develop and manifest their inner identity in outward actions. They have no free space to experiment, make mistakes, or just "be" themselves, to learn or grow in a comfortable environment. Unlike the homed, the homeless lack liberty in this respect. Physically, the homeless do not have the option to exclude others because they lack the financial capital to barricade their private sphere in a legally recognized manner. As such, their ability to materially and psychologically function as "normal" is reduced and, in turn, their ability to portray "reasonableness" to a judge or third party is lessened. The law categorizes space in a way that augments this phenomenon, rather than disrupts it; law strips the homeless of precious autonomy. In particular, the context of homelessness is not enunciated nor enforced in search and seizure jurisprudence, yielding contextual and abstracted decisions that recapitulate current power schematics, regardless of the intention of lawmakers. The Fourth Amendment currently protects "people" not "places." But the legal community generally ignores the claim that law treats homeless people differently based on a divide between private and public space. A reasonable expectation standard is necessarily selective upon implementation. In a home, with a widely recognized barrier erected around one’s belongings, an individual has a powerful and historically significant claim to the property and the privacy of the property inside of those walls. Without a home, a person lacks that presumption of privacy and liberty in law. Complexity and contradiction thus color issues of law, equality, and practicality. This article establishes a connection between personhood through property interests while intersecting search and seizure precedent into a property-based explication. Social and financial capital corresponds to the level of what, in theory, is an innate and unanimous right provided by the Constitution: protection from illegal searches and seizures."

Monday, June 19, 2006
Hazlett & Munoz on Spectrum Allocation Thomas W. Hazlett and Roberto E. Munoz (George Mason University and Universidad Tecnica Federico Santa Maria) have posted A Welfare Analysis of Spectrum Allocation Policies on SSRN. Here is the abstract:
    Economic analysis of spectrum allocation policies focuses on competitive bidding for wireless licenses. Auctions generating high bids, as in Germany and the UK, are identified as “successful,” while those producing lower receipts, as in Switzerland and the Netherlands, are deemed “fiascoes.” Yet, even full and costless extraction of license rents does not map directly to social welfare, because spectrum policies creating rents impose social costs. For example, rules favoring monopoly market structure predictably increase license values, but reduce welfare. This paper attempts to shift analytical focus to the relationship between spectrum policy (including license auctions) and efficiency in output markets. In cross-country comparisons of performance metrics in mobile telephone service markets, empirical estimates suggest that countries allocating greater bandwidth to licensed operators and achieving more competitive market structures realize demonstrable social welfare benefits. These gains generally dominate efficiencies associated with license sales. Spectrum policies and rules intended to increase auction receipts (e.g. reserve prices and subsidies for weak bidders), should be evaluated in this light.

Ahdieh on SOX Robert B. Ahdieh (Emory University School of Law) has posted From 'Federalization' to 'Mixed Governance' in Corporate Law: A Defense of Sarbanes-Oxley (Buffalo Law Review, Vol. 53, p. 721, 2005) on SSRN. Here is the abstract:
    Since the very moment of its adoption, the Sarbanes-Oxley Act of 2002 has been subject to a litany of critiques, many of them seemingly well-placed. The almost universal condemnation of the Act for its asserted 'federalization' of corporate law, by contrast, deserves short shrift. Though widely invoked - and blithely accepted - dissection of this argument against the legislation shows it to rely either on flawed assumptions or on normative preferences not ordinarily acknowledged (or perhaps even accepted) by those who criticize Sarbanes-Oxley for its federalization of state corporate law. Once we appreciate as much, we can begin by replacing the misleading rhetoric of 'federalization'. More importantly, we might begin to conceptualize a theory of corporate law that is both more effective in advancing our desired ends and perhaps closer to market realities than the competing paradigms presently in ascendance. In this spirit, I offer a model of jurisdictional redundancy - in which federal mandatory rules intertwine with state enabling rules, to create a more indeterminate regulatory regime than we might otherwise pursue. Such a scheme of 'mixed governance' may deprive legal scholars of the opportunity to draw clear distinctions, but may allow the regulation of corporate governance to operate more effectively, and to evolve more efficiently over time.
Wow, a SOX defender! Who knew they were out there?

Eastman on Bush v. Gore John C. Eastman (Chapman University School of Law) has posted Politics and the Court: Did the Supreme Court Really Move Left Because of Embarrassment Over Bush v. Gore? (Georgetown Law Journal, 2006 Forthcoming) on SSRN. Here is the abstract:
    The premise of the “hot topics” panel at the 2005 AALS convention was that the Rehnquist Court had in 2004 retreated from its bolder conservatism, asserting itself on the side of individual liberty against a federal government that had grown increasingly cavalier toward civil liberties during three years of a war on terror and two decades of a renewed war on crime. Proof of the premise was said to be found in a pair of Sixth Amendment cases, Crawford v. Washington and Blakely v. Washington, and also in the trilogy of terrorism cases, Rumsfeld v. Padilla, Hamdi v. Rumsfeld, and Rasul v. Bush. This article argues that the premise of the panel was flawed, based as it was on a stereotypical yet false view of the Rehnquist Court. The Rehnquist Court’s legacy was never about preferring law and order outcomes over civil liberties outcomes, or about siding with the government at the expense of individual criminal defendants. Rather, the Court’s legacy - and it was only modestly and rather inconsistently successful in this - was the revival of an originalist constitutionalism that took seriously the limits on governmental power actually detailed in the text of the Constitution itself, while also preserving the textual commitment to separation of powers and federalism. With this legacy in mind, I contend in Part II of the Article that the Sixth Amendment cases - or more precisely, the position in those cases of Justices Scalia and Thomas, the Court’s two most devoted originalists - are perfectly consistent with the Rehnquist Court’s broader devotion to principles of constitutionalism. In Part III, I take up the trilogy of terrorism cases and argue that, contrary to popular understanding, those cases actually reflect a proper deference to the executive branch in the exercise of its war-making powers. Finally, I take up in Part IV what I consider to be one of the most interesting aspects of this group of cases: Justice Scalia’s apparent invitation in the Hamdi case to revisit the current understanding of birthright citizenship, which has long ignored a crucial component of the Constitution’s text. I contend that the subject to the jurisdiction part of the Citizenship Clause means allegiance-owing jursidiction rather than mere territorial jurisdiction, and that as a result the Constitution does not mandate citizenship for the children of temporary visitors to the United States, particularly those who are here illegally.

Call for Papers: Conference on "Heresy, Blasphemy, and Freedom of Expression" at Central Florida
    Call for Papers Heresy, Blasphemy, and Freedom of Expression The University of Central Florida Department of Philosophy, the Ethics Center Initiative, the Humanities Center Initiative, the UCF Program for Information Fluency, Florida Philosophical Review: The Journal of the Florida Philosophical Association, and the Office of Student Rights and Responsibilities announce a call for papers for a conference on "Heresy, Blasphemy, and Freedom of Expression" to be held at the University of Central Florida in Orlando, Florida on January 18-20, 2007. This 3-day conference is intended to share information, ideas, and arguments on issues related to freedom of expression and discussion, freedom of the press, information and misinformation, and the acquisition, evaluation, use and dissemination of information. We seek papers and panel presentation proposals on the general theme of the conference as well as those relevant to the recent events and discussions surrounding the publication of "blasphemous" cartoon depictions of the prophet Muhammad. Our invitation for papers and panel discussion proposals on topics related to the theme of the conference is inter- and multi-disciplinary, including issues in art, the news media, teaching, government, academic integrity, censorship, moral responsibility, and other related concepts or topics that speak to moral, social, historical, political, aesthetic, religious, theological, scientific and other issues in the free flow of information; personal, social, institutional, and governmental responsibility concerning freedom, dissemination, and acquisition of information; and problems, theories, principles, and concepts involved in the acquisition, use, abuse, assessment, and dissemination of information in ethical, social, political, religious, personal, and professional contexts. Selected papers and proceedings of the conference may be published in a special edition of Florida Philosophical Review. Papers should be prepared for 30-40 minute presentation time. Proposals for round-table or panel discussions should be prepared for 50 minute presentation time. Submit an abstract of your paper of no more than 500 words, prepared for anonymous review. Round-table or panel discussion proposals must include the title of the discussion/presentation, participant names and areas of expertise, and a brief statement of the significance and goals of discussion of the topic. Abstracts of papers and round-table or panel discussion proposals must be received by October 15, 2006. Notifications will be finalized by December 10. The conference is open to participation and presentation of all academic levels (faculty, administrators, graduate and undergraduate students). You may send your abstract or proposal by e-mail to:

Sunday, June 18, 2006
Legal Theory Calendar
    Tuesday, June 20
      CERSA (Université de Paris 2): Lawrence Solum (University of Illinois), Legal Complexity, Phronesis, and Equity. This event will be held at the Salle de Séminaire 3 ème étage, 10 rue Thénard F-75005 Paris, M° Cluny, Sorbonne.
      University of Arizona Law: Kirsten Engel, "Who's Afraid of Overlapping Federal and State Jurisdiction?: Harnessing the Benefits of Competitive Vertical Federalism"
    Wednesday, June 21
      University of Cincinnati Law: Marianna Brown Bettman Ohio’s Struggle Over Prenatal Torts
    Thursday, June 22
      Florida State Law: Dan Markel (FSU)

Legal Theory Lexicon: Legal Theory, Jurisprudence, and the Philosophy of Law
    Introduction The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is “jurisprudence” a synonym for “philosophy of law” or are these two overlapping but distinct fields? Is “legal theory” broader or narrower than jurisprudence? And why should we care about this terminology?
    As always, this entry in the Legal Theory Lexicon series is aimed at law students, especially first-year law students with an interest in legal theory.
    Who Cares About Terminology Why should we care about terminology? Who cares what goes under the label “jurisprudence” or “philosophy of law” or “legal theory”? Well, of course, there is a sense in which we shouldn’t care at all. What matters in a deep way is the substance of theorizing about law. On the other hand, these labels are important for a different reason—because their use tells us something about the sociology of the academy. When people argue about what “jurisprudence” really is, the terminological dispute may reflect a conflict over “turf” and “authority.”
    Disciplinary Lines and Theorizing About Law Very broadly speaking, the turf of high-level legal theory is disputed by at least four groups. First and (still) foremost are the academic lawyers, those whose graduate-level training is exclusively (or almost exclusively) in law as it is taught in the legal academy. Second, there are the economists—some of whom are primarily (or exclusively) trained in economics; while others legal economists were trained primarily by law professors. Third, there is the “law and society” movement—broadly defined as the study of law from a social science (but noneconomic) perspective. Law-and-society theorists may have been trained in political science or sociology or criminology, but many may have been trained in the legal academy as well. Fourth, there is the law-and-philosophy movement, with “analytic legal philosophy” as the focal point of a variety of philosophical approaches. Many philosophers of law have formal philosophical training, but some were trained in law or political theory.
    So, what about the turf wars? Those who use the phrase “philosophy of law” tend to be philosophers, while the term “jurisprudence” is more strongly associated with the legal tradition of theorizing about the law, but there is frequently a blurring of the these two terms. From the 1960s on, a single figure had a dominant influence in defining the content of “philosophy of law” courses in philosophy departments and “jurisprudence” courses in the law schools—that figure was H.L.A. Hart. Of course, there were many, many exceptions, but for quite a long time the standard course in both disciplines included as a central, organizing component, an examination of Hart’s ideas, either The Concept of Law, Hart’s great book, or the Hart-Fuller debate in the Harvard Law Review. When I was a student in the 70s and early 80s, I thought that “jurisprudence” and “philosophy of law” were synonymous—and that both were references to analytic philosophy of law in the tradition of Hart and included figures like Dworkin and Raz. One consequence of the “philosophicalization” of jurisprudence was the move to fold moral and political philosophy into jurisprudence. I have a very clear memory of browsing the law shelves of the textbook section of the UCLA bookstore in the late 70s, and discovery John Rawls’s A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia as the texts for the jurisprudence course. I have always assumed that similar courses were offered elsewhere, although I could be wrong about that.
    Philosophy is important as a matter of the sociology of the legal academy, but it is not the only important interdisciplinary influence: economics, political science, and sociology, each of these also has a major influence. Given that the “jurisprudence” course was “captured” by philosophers, how could these other approaches to legal theorizing express their theoretical framework in the law school curriculum. One mode of expression was the alternative theory course—“Law and Economics” and “Law and Society” were the two leading competitors of “Jurisprudence.” Moreover, the tradition of distinctively legal thinking about high legal theory has never died out. American Legal Realism was largely the product of the law schools—although many other disciplines figured in the realist movement. Likewise, Critical Legal Studies was largely a phenomenon of the legal academy. Some jurisprudence or legal theory courses incorporate philosophy of law, law and economics, and law and society into a course that is taught from a distinctively legal point of view.
    What can we say about our three terms—jurisprudence, philosophy of law, and legal theory?
    Jurisprudence My sense is that most Anglo-American legal academics view “jurisprudence” as mostly synonymous with “philosophy of law”. This is not a unanimous view. There is still a lingering sense of “jurisprudence” that encompasses high legal theory of a nonphilosophical sort—the elucidation of legal concepts and normative theory from within the discipline of law. Moreover, in other legal cultures, for example, in Europe and Latin America, my sense is that the move to identify jurisprudence with philosophy of law never really took root.
    Philosophy of Law The meaning of the phrase “philosophy of law” is inevitably tied up in the relationship between the two academic disciplines—philosophy and law. In the United States and the rest of the Anglophone world, “philosophy of law” is a subdiscipline of philosophy, a special branch of what is nowadays frequently called “normative theory.” Of course, there are many different tendencies within academic philosophy generally and the philosophy of law in particular. Still, the dominant approach to philosophy of law in the Anglophone world is represented by “analytic legal philosophy,” which might be defined by the Hart-Dworkin-Raz tradition on the one hand and by the larger Austin-Wittgenstein-Quine-Donaldson-Kripke tradition on the other.
    Coexisting with the analytic tradition in the philosophy of law are many other philosophical approaches. These include Hegelianism, neo-Thomism, Marxism, as well as the contemporary continental philosophical tradition, ranging from Habermas (with close affinities to the analytic tradition) to Foucault and Derrida (with much more tenuous links).
    The philosophy of law covers a lot of ground. An important line of development focuses on the “what is law?” question, but much contemporary legal philosophy is focused on normative questions in specific doctrinal fields. The application of moral and political philosophy to questions in tort and criminal law is an example of this branch of contemporary legal philosophy.
    Legal Theory Legal theory is a much broader and encompassing term, encompassing the philosophy of law and jurisprudence as well as theorizing from a variety of other perspectives, including law and economics and the law and society movement. In my opinion, “legal theory” is currently the best neutral term for referring to legal theorizing, broadly understood. It allows us to avoid the turf wars and sectarian disputes that make the word “jurisprudence” somewhat problematic.
    Conclusion When you start theorizing about law, you are likely to adopt some term or phrase to describe your activity. “I’m doing jurisprudence,” or “I’m a philosopher of law.” I hope that this entry in the Legal Theory Lexicon will help you use these labels with some awareness of their history and the controversies that surround their use.

Saturday, June 17, 2006
Saturday Calendar
    University of Colorado Boulder: 2006 Junior Tax Scholars Conference
      Panel 5: International Tax Issues
        9:00-9:30 Craig Boise, Deferral, Repatriation Incentives and the Utility of Amnesties Commentators: Allison Christians, Ruth Mason 9:30-10:00 Ruth Mason, Subsidies and Free Markets: State Tax Discrimination in the US and Europe Commentators: Craig Boise, Allison Christians, Kristin Hickman 10:00-10:30 Allison Christians, Treaties, Executive Agreements and Foreign Policy Power Commentators: Craig Boise, Ruth Mason, Ajay Mehrotra 10:30-11:00 Steven Dean, Tax Flight Treaties: Designing and Effective Solution to the Tax Haven Problem Commentators: Allison Chirstians, Ruth Mason, Adam Rosenzweig
      Panel 6: Administrative Law Issues
        11:15-11:45 Kristin Hickman, Coloring Outside the Lines: Examining Treaury's (Lack of) Adherence to APA Procedural Requirements Commentators: Adam Chodorow, Adam Rosenzweig 11:45-12:15 Adam Rosenzweig: Elective Tax Fictions in a Purposive World: Can an Elective Tax Fiction be Abusive? Commentators: Steven Dean, David Walker

Legal Theory Bookworm The Legal Theory Bookworm this week offers suggestions for introductory works in political philosphy:

Download of the Week The Download of the Week is Critical Constitutionalism Now by Louis Michael (Mike) Seidman. Here is the abstract:
    The starting point for this essay is the claim that if the texts that critical scholars studied are unstable over time, then this must also be true of the studies themselves. There is no reason to suppose that the critical perspective, uniquely among all possible perspectives, reflects timeless and contextless truth. The question I want to ask, then, is what meaning the critical perspective has for us now in our new and dramatically transformed environment. I proceed in four parts. First, I address the meaning that critical scholars attributed to constitutional law in the late twentieth century. Second, I describe some of the features of the situation that produced this meaning. Third, I describe salient features of the current constitutional situation and how it differs from the situation from which critical constitutionalism emerged. Finally, I offer some suggestions for what critical constitutionalism means today.
Download it while its hot!

Friday, June 16, 2006
Friday Calendar
    University of Colorado Boulder: 2006 Junior Tax Scholars Conference
      Panel 1: Business Tax Issues
        9:15-9:45 David Walker, Accounting and Corporate Behavior Commentators: Vic Fleischer, Alex Raskolnikov 9:45-10:15 Vic Fleischer, Two and Twenty: Partnership Profits in Venture Capital Funds and Private Equity Funds Commentators: David Hasen, David Walker 10:15-10:45 David Hasen, Retroactivity in Legal Transitions Commentators: Neil Buchanan, Alex Raskolnikov 10:45-11:15 Alex Raskolnikov, A Social Cost of Social Norms Commentators: David Hasen, Vic Fleischer
      Panel 2: Historical Perspectives on Current Tax Issues
        11:30-12:00 Ajay Mehrotra, From Labor to Capital: The Roots and Transformation of Tax Preferences for Capital Income Commentators: Adam Chodorow, Vic Fleischer 12:00-12:30 Adam Chodorow, Tithing and Taxes Commentators: Lily Batchelder, Lloyd Mayer
      Panel 3: Public Finance/Budgeting
        1:15-1:45 Neil Buchanan, Social Security Financing Commentators: Lily Batchelder, David Gamage 1:45-2:15 Michael Doran, Generational Accounting in Federal Fiscal Policy Commentators: Neil Buchanan, David Gamage 2:15-2:45 David Gamage, Coping with the Rollercoaster Effects of Balanced Budget Constraints Commentators: Steven Dean, Michael Doran
      Panel 4: Tax and Social Policy
        3:00-3:30 Miranda Perry, Why Limit Charity? Exploring the Income Tax Charitable Deduction AGI Limits Commentators: Lloyd Mayer, Ajay Mehrotra 3:30-4:00 Lily Batchelder, Inheritance Tax Proposal Commentators: Michael Doran, Miranda Perry 4:00-4:30 Lloyd Mayer, Regulating Political Activity: Tax Law and the IRS vs. Election Law and the FEC Commentators: Kristin Hickman, Miranda Perry

Heller on the Rome Statute and National Due Process Kevin Jon Heller (University of Auckland Faculty of Law) has posted The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process on SSRN. Here is the abstract:
    According to the principle of complementarity, the ICC can exercise jurisdiction over a serious international crime only if no State is willing and able to prosecute the crime itself. This principle, which finds its most specific expression in Article 17 of the Rome Statute, is based on two important considerations: the recognition that States have the primary obligation under the Statute to investigate and prosecute serious international crimes; and the practical reality that the Court, as a single institution with limited resources, will never be able to investigate and prosecute more than a small number of such crimes. The Chief Prosecutor of the ICC has thus correctly insisted that, in terms of ending impunity, “the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.” There is, however, a shadow side of complementarity, one that should temper our enthusiasm for the early obsolescence of the Court: its effect on the likelihood that defendants will receive due process in national proceedings. Although the ICC is a model of due process, guaranteeing defendants all of the procedural protections required by international law, most national criminal-justice systems are far less even-handed - particularly those in States that have experienced atrocities serious enough to draw the Court’s interest. Complementarity is thus a double-edged sword. On the one hand, ICC deferrals will reflect the willingness of States to bring the perpetrators of serious international crimes to justice. On the other hand, those deferrals will expose perpetrators to national judicial systems that are biased toward conviction, increasing the likelihood of wrongful convictions. This essay explores the implications of the shadow side of complementarity. Part I argues that international criminal law scholars have generally failed to recognize the magnitude of the problem, because they believe - almost without exception - that Article 17 makes the absence of due process in a national proceeding a ground for admissibility. Part II demonstrates that this interpretation of Article 17, though seductive, is irreconcilable with the text, context, and drafting history of the Article. Properly understood, Article 17 permits the Court to find a State “unwilling or unable” only if its legal proceedings are designed to make a perpetrator more difficult to convict; if its legal proceedings make the perpetrator easier to convict by denying him due process, the Article requires the Court to defer to the State no matter how unfair those proceedings may be. Part III illustrates the potentially devastating consequences of Article 17’s unidirectionality by examining Sudan’s recent assertion that its plan to prosecute the Darfur genocidaires in national Specialised Courts divests the ICC of jurisdiction over those cases. Finally, Part IV suggests that, in light of those negative consequences, the Rome Statute should be amended to make the absence of national due process an explicit ground for admissibility.

Trubek & Trubek on New Governance David M. Trubek and Louise G. Trubek (University of Wisconsin Law School and University of Wisconsin at Madison Law School) have posted New Governance and Legal Regulation: Complementarity, Rivalry or Transformation on SSRN. Here is the abstract:
    New approaches to regulation have emerged to deal with inadequacies of traditional command and control systems. Such "new governance" mechanisms are designed to increase flexibility, improve participation, foster experimentation and deliberation, and accommodate complex multi-level systems. In many cases these mechanisms co-exist with conventional forms of regulation. As new forms of governance emerge in arenas regulated by conventional legal processes, a wide range of configurations is possible. The purpose of this paper is to provide a preliminary mapping of such relationships using examples drawn from the European Union and the United States.When the two processes are consciously yoked together in a hybrid form, we might speak of a real transformation in the law. In other cases, the two systems may exist in parallel but not fuse together in a single system. Where both systems co-exist, there are numerous possible configurations and relationships among them. Thus, one might simply be used to launch the other, as when formal law is used to mandate a new approach. Or, they might operate independently yet both may have an effect on the same policy domain. Finally, in some areas one system may take over the field, ether because new governance methods replace traditional law altogether, or because opposition to innovation halts efforts to employ new approaches.

Eastman on Commerce Clause Challenges to Environmental Laws John C. Eastman (Chapman University School of Law) has posted A Fistful of Denial: The Supreme Court Takes a Pass on Commerce Clause Challenges to Environmental Laws (Cato Supreme Court Review, p. 469, September 2004) on SSRN. Here is the abstract:
    Ever since the Supreme Court's landmark decision in United States v. Lopez invalidating the Gun-Free School Zones Act as beyond the scope of Congress's Commerce Clause power, scholarly commentators from both sides of the ideological spectrum have wondered whether the Court would apply the reasoning of that case in the context of federal environmental laws. Many agreed that, if faithfully applied, Lopez sounded a death knell for a slew of environmental legislation that had at best only a tenuous connection with interstate commerce. For some, that was even more reason to deride the Lopez decision, but for originalists, it was a welcome prospect. Not only would the Court be enforcing the Constitution's limits on Congressional power to regulate Commerce . . . among the . . . States, as it ought, but it would be resurrecting the sound theoretical foundation on which those limits were built, returning decisionmaking authority to a level of government close enough to the people to ensure that both the benefits and costs of environmental policy were fully considered by those who would suffer any adverse consequences of a wrong decision. A fistful of five environmental cases pressing the Commerce Clause challenge were presented to the Court during the October 2004 term by way of petitions for writs of certiorari. The first four petitions were summarily denied, and the fifth was not considered until after this article was published (the petition for certiorari was ultimately granted, Rapanos v. United States). This article addresses the significance of those cases and places them in the larger context of the general recalcitrance of the lower courts to apply Lopez in the environmental law arena.

Fisher & Harding on the Precautionary Principle & Administrative Constitutionaloism Elizabeth C. Fisher and Ronnie Harding (Oxford Faculty of Law - Oxford University and Institute of Environmental Studies) have posted The Precautionary Principle and Administrative Constitutionalism: The Development of Frameworks for Applying the Precautionary Principle (IMPLEMENTING THE PRECAUTIONARY PRINCIPLE: PERSPECITIVES AND PROSPECTS, pp. 113-136, E. Fisher, J. Jones & R. von Schomberg, eds., Edward Elgar, 2006) on SSRN. Here is the abstract:
    Over the last decade there has been the development of frameworks for the implementation of the precautionary principle in numerous different jurisdictions. As these frameworks regulate what is acceptable behaviour they will, by necessity, reflect and promote theories of what is a legitimate role for public administration, or in other words theories of administrative constitutionalism. So far, it can be seen that two different theories have tended to dominate the development of frameworks for applying the precautionary principle - the deliberative-constitutive and rational-instrumental theories. These theories differ in the role that they prescribe for public administration and the way in which environmental and public health problems are conceptualised. Deville & Harding's framework developed in Australia in 1997 is an example of the former and the European Commission's Communication on the Precautionary Principle is an example of the latter. We argue that there is a need for commentators and policy makers to pay far more attention to the administrative implications of the principle and appreciate that the deployment of the language of accountability, reasonableness, consistency, and non-arbitrariness is meaningless without reference to broader theories of administrative constitutionalism.

Ross on Comparative Covert Surveillance Jacqueline E. Ross (University of Illinois College of Law) has posted The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany on SSRN. Here's the abstract:
    In the wake of the September 11 attacks, undercover policing has become an increasingly important law enforcement tool in the United States and in Europe. More frequent deployment of covert tactics has confronted democratic governments with difficult questions about these extraordinary operations should be controlled and conceptualized. How ubiquitous should covert tactics become, and how should regulatory systems respond to their increased importance? What are the challenges of taming the constantly changing and highly contested practices of undercover policing, which stubbornly resist oversight? Legal systems differ in their concerns about undercover surveillance and in their willingness to deploy covert agents and informants against a spectrum of perceived threats ranging from national security dangers like terrorism or political and religious extremism to organized crime, drug trafficking, and more ordinary forms of criminality. In most democracies, political elites, legal actors, and critics agree that undercover investigations are in some sense a necessary evil. But national legal systems vary in what they mean by that. They have disparate conceptions of what makes covert investigations troublesome; of the proper goals of infiltration; and of the mechanisms by which undercover tactics should be legitimated and controlled. In short, legal systems forge different regulatory compromises and accord different degrees of legitimacy to the “necessary evil” of covert operations. Much of the scholarship about undercover policing in Europe has focused on doctrine. My study examines undercover policing empirically, through 89 qualitative, open-ended field interviews that I conducted with state and federal police officials, undercover agents, training and supervisory officials, control officers, prosecutors, and judges in fifteen of the sixteen German states. Through these interviews, I examined the ground-level strategies and practices of those who conduct, supervise, and evaluate covert operations. My empirical study examines German undercover policing as both a topic in its own right and as a contrast case that helps identify distinctive features of the American system of covert operations. The systems under comparison can, in Clifford Geertz's words, “form a kind of commentary on the other's character.” Each can suggest what is important and troubling about the other. Each can highlight features of the other that would seem less noteworthy if examined in isolation, without the benefit of comparison.

Thursday, June 15, 2006
Seidman on Reflexive Critical Constitutionalism Louis Michael Seidman (Georgetown University Law Center) has posted Critical Constitutionalism Now (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
    The starting point for this essay is the claim that if the texts that critical scholars studied are unstable over time, then this must also be true of the studies themselves. There is no reason to suppose that the critical perspective, uniquely among all possible perspectives, reflects timeless and contextless truth. The question I want to ask, then, is what meaning the critical perspective has for us now in our new and dramatically transformed environment. I proceed in four parts. First, I address the meaning that critical scholars attributed to constitutional law in the late twentieth century. Second, I describe some of the features of the situation that produced this meaning. Third, I describe salient features of the current constitutional situation and how it differs from the situation from which critical constitutionalism emerged. Finally, I offer some suggestions for what critical constitutionalism means today.
Highly recommended!

Denno on Lethal Injection Deborah W. Denno (Fordham University School of Law) has posted Death Bed (TriQuarterly Journal, Vol. 124, pp. 141-68, 2006) on SSRN. Here is the abstract:
    Lethal injection is this country's primary method of execution, adopted for use by all but one of the thirty-seven death penalty states, as well as the federal government. It is predictable, then, that questions would arise the moment such a widely accepted form of punishment becomes especially vulnerable to an Eighth Amendment attack, as recent cases have shown. This article discusses this author's involvement as an expert in one of these cases, Baze v. Rees, which concerned a 2005 challenge to the constitutionality of lethal injection in Kentucky. While the Baze court upheld the constitutionality of Kentucky's lethal injection procedure, the opinion also revealed some extraordinary and unprecedented statements about the flaws of lethal injection as well as recommendations for how it should be improved. For example, the court found it cruel and unusual for the state's lethal injection protocol to enable an inmate's neck to be catheterized, a decision influenced by a department of corrections doctor who testified he would refuse to conduct the procedure, and that those who would were unqualified to do so. Baze is one of a series of opinions demonstrating that the more we know about how lethal injection is administered, the more problems we find with this means of execution.

Two by Chen on Biodiversity Jim Chen (University of Minnesota Law School) has posted Across the Apocalypse on Horseback: Biodiversity Loss and the Law (BIODIVERSITY, BIOTECHNOLOGY AND TRADITIONAL KNOWLEDGE PROTECTION: LAW, SCIENCE AND PRACTICE, Charles R. McManis, ed., Earthscan/James & James, 2006) on SSRN. Here is the abstract:
    The most significant drivers of biodiversity loss can be described by HIPPO, the Greek word for horse. Habitat destruction, Invasive species, Population, Pollution, and Overkill - in that order - are exterminating species at a rate worthy of one of geological history's mass extinctions. Unfortunately, existing legal tools for stemming biodiversity loss are aimed precisely where human agency matters least. The Endangered Species Act, for instance, more clearly punishes overkill than either habitat destruction or the introduction of alien invasive species. This article describes the predicament and prescribes a modest agenda for improving the law of biodiversity conservation.
and Diversity and Deadlock: Transcending Conventional Wisdom on the Relationship Between Biological Diversity and Intellectual Property. Here's the abstract:
    Do intellectual property rights promote or inhibit legal efforts to protect endangered species and ecosystems? According to the conventional narrative on biopiracy, biodiversity and biotechnology can scarcely coexist. Placing the debate in its proper environmental context demonstrates that both the global south (home to most of earth's threatened and endangered species) and the global north (the source of the capital and technology needed to develop this natural wealth) have overstated the significance of commercial development. Saving biodiversity's hot spots promises far more environmental benefit. Nevertheless, to the extent that bioprospecting can overcome perverse economic incentives to consume natural resources with greater, long-term value, it behooves us to examine biotechnology's impact on biodiversity and the legal framework that regulates this relationship. After examining intellectual property through three conceptual filters - genotypes versus phenotypes, genes versus memes, and pharmaceutical versus agricultural applications of biotechnology - this article reviews the relevant provisions of the Convention for Biological Diversity, the annex on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the International Convention for the Protection of New Varieties of Plants (UPOV). If the developing world intends to obtain access to northern capital and technology, it is likelier to do so through TRIPS and UPOV than the Biodiversity Convention. This article concludes by urging a reduction in the vehemence of the debate over biodiversity and biotechnology. The attention lavished on clever ways to exploit individual species should yield to a reinvigorated commitment to funding cooperative conservation efforts under the aegis of the Convention on Biological Diversity.
Chen's work is always very interesting!

Thursday Calendar
    Oxford Jurisprudence Discussion Group: Nicola Lacey, On H.L.A. Hart's Biography
    Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Professor Jeffrey Jowell, ‘The Demise of Parliamentary Sovereignty’
    University of Arizona Law: Darian Ibrahim, Assessing Director Liability After Disney: On an Individual Director or Whole Board Basis?
    Florida State Law: Erik Knutsen, Queen's University/FSU College of Law (visiting professor)

Wednesday, June 14, 2006
Penney on an Economic Approach to Reasonable Expectations of Privacy Steven Penney (University of New Brunswick - Faculty of Law) has posted Reasonable Expectations of Privacy and Novel Search Technologies: An Economic Approach on SSRN. Here is the abstract:
    The “reasonable expectation of privacy” test, which defines the scope of constitutional protection from governmental privacy intrusions in both the United States and Canada, is notoriously indeterminate. This indeterminacy stems in large measure from the tendency of judges to think of privacy in non-instrumentalist terms. This “moral” approach to privacy is normatively questionable, and it does a poor job of identifying the circumstances in which privacy should prevail over countervailing interests, such as the deterrence of crime. In this paper, I develop an alternative, economically-informed approach to the reasonable expectation of privacy test. In contrast to the moral approach, which treats privacy as a fundamental right, the economic approach views it as a (normatively neutral) aspect of self-interest: the desire to conceal and control potentially damaging personal information. On this view, privacy should not be protected when its primary effect is to impede the optimal deterrence of crime. Legal protections against governmental surveillance, however, may in other cases enhance social welfare by encouraging productive transactions, diminishing the costs of non-legal privacy barriers, and limiting suboptimal policing practices, including discriminatory profiling and the enforcement of inefficient criminal prohibitions. Economics and public choice theory can also help to minimize decision-making error by predicting which legal actors – police, legislatures, or courts – are best placed to make optimal trade-offs between privacy and crime control. I first describe the United States and Canadian supreme courts’ reasonable expectation of privacy jurisprudence and canvass its chief inadequacy: the vagueness of the “public exposure” and “intimacy” doctrines that the courts have used to decide whether to regulate novel search technologies. I then outline the economic approach to the reasonable expectation of privacy test. Next, I apply this approach to two technologically advanced search tools: infrared imaging and location tracking. This analysis suggests that courts should recognize a reasonable expectation of privacy in the latter case, but not the former.

McCluskey on Formal Corporate Power Martha T. McCluskey (University at Buffalo - Law School) has posted The Substantive Politics of Formal Corporate Power (Buffalo Law Review, Vol. 53, p. 1453, 2006) on SSRN. Here's the abstract:
    Corporations increasingly dominate the U.S. civil justice system, as Marc Galanter explains in his recent article, Planet of the APs: Reflections on the Scale of Law and its Users, 53 Buffalo L. Rev. 1369 (2006). My article builds on Galanter's discussion of corporate legal power by subjecting it to a critical legal perspective. In the conventional legal framework, corporations' privileged position appears to be an intractable puzzle, not an urgent injustice. That is because corporate power seems to be the generally necessary byproduct of a generally benign form (large, complex, legalistic organizations) or of generally benign, widely-shared normative principles (economic efficiency or proceduralism). Critical analysis, in contrast, opens the door to substantive change by exploring how substantive political conflict and subordination permeates and supports particular dilemmas of form and formal principle. This article explores the particular substance of the contemporary U.S. corporation not as the natural and necessary modernization of economics and law but as a contingent result of political conflict - and more specifically and substantively, as the result of class and caste hierarchy. The article traces how this substantive politics of class and caste became institutionalized as seemingly neutral corporate form in the nineteenth century, and also became constitutionalized through Supreme Court decisions affording corporations increasing protections from democratic process. The article argues that the Supreme Court's recent decision in State Farm Mutual Automobile Ins. Co. v. Campbell further constitutionalizes class hierarchy through a revived substantive economic due process doctrine that has implications beyond the narrow question of punitive damages at issue in the case. Inverting the reasoning of Carolene Products footnote four, the Court construed large corporations as persons deserving special protection from substantive political and legal accountability, despite - or perhaps because of - corporations' particular power to subvert the political and legal process in the interest of the most privileged. The article concludes by explaining that progressive reforms should aim not to supplement the corporate form (or judicial formalism) with more moral and social substance, but instead to challenge and change both the particular substantive values and the technical institutional forms that structure the corporate-centered U.S. legal and economic system.

Tuesday, June 13, 2006
Ellickson on the Family Robert C. Ellickson (Yale Law School) has posted Unpacking the Household: Informal Property Rights Around the Hearth (Yale Law Journal, Vol. 116, 2006) on SSRN. Here is the abstract:
    As Aristotle recognized in THE POLITICS, the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, have devoted far more attention to the family and to marriage than to the household as such. To unpack the household, this Article applies transaction cost economics and sociological theory to interactions among household participants. It explores questions such as the structure of ownership of dwelling units, the scope of household production, and the governance of activities around the hearth. Drawing on a wide variety of historical and statistical sources, the Article contrasts conventional family-based households with arrangements in, among others, medieval English castles, Benedictine monasteries, and Israeli kibbutzim. Most households involve several participants and as many as three distinct relationships - that among occupants, that among owners, and that between these two groups (the landlord-tenant relationship). Individuals, when structuring these home relationships, typically pursue a strategy of consorting with intimates. This facilitates informal coordination and greatly reduces the transaction costs of domestic interactions. Utopian critics, however, have sought to enlarge the scale of households, and some legal advocates have urged household members to write formal contracts and take disputes into court. These commentators fail to appreciate the great advantages, in the home setting, of informally associating with a few trustworthy intimates.
Highly recommended!

Lopez on Kelo & Political Philosophy Alberto Lopez (Salmon P. Chase College of Law) has posted Weighing and Reweighing Eminent Domain's Political Philosophies Post-Kelo (Wake Forest Law Review, Vol. 41, No. 237, 2006) on SSRN. Here's the abstract:
    This article explores the public use and just compensation clauses through the lenses of the political philosophies that inform eminent domain and the Takings Clause - republicanism and liberalism. The article begins with a description of the historical origins of republicanism and liberalism in eminent domain theory. Next, the article traces the jurisprudential evolutions of the Takings Clause's public use and just compensation requirements, which are the constitutional representations of republicanism and liberalism associated with eminent domain. After discussing the Court's decision in Kelo, the paper assesses the balance between republicanism and liberalism comprehended by eminent domain and the Takings Clause both pre- and post-Kelo. Kelo tips eminent domain's philosophical balance heavily in favor of republicanism. As a result, I argue for the inclusion of subjective harm in the just compensation equation, which heretofore has not figured into the just compensation calculus. The article concludes that including an individualized assessment of the subjective loss suffered by a property owner as a result of eminent domain increases the liberalism comprehended by the just compensation clause. As a result, eminent domain's balance of political philosophies moves closer to equipoise.

Kochan on Respect & Human Rights Donald J. Kochan (Chapman University - School of Law) has posted Boyakasha, Fist to Fist: Respect and the Philosphical Link with Reciprocity in International Law and Human Rights (George Washington International Law Review, Vol. 38, 2006) on SSRN. Here's the abstract:
    From Grotius to Hobbes to Locke to an unconventional modern pop-culture manifestation in Ali G, the concept of "respect" has always been understood as important in human interaction and human agreements. The concept of mutual understanding and obligation pervades human interaction, and, for purposes of this Article, international relations. Almost all basic principles in English, United States, and other country's laws that value human and individual rights have based, over time, the development of their laws on the philosophical principle of respect. So much of common and statutory law is designed to enforce respect for others. The principle question in this Article involves the idea of respect between nations in international reciprocity. Most importantly, it examines who should have the opportunity to enforce potential disrespectful actions in issues of international law and human rights. Due to a trend within the United States where litigation opportunities have allowed private individuals to attempt to enforce within the judiciary the obligations of "international law" for allegedly disrespectful actions, the question becomes whether it is wise to allow nations due respect to allow their citizens to enforce actions contrary to those international obligations. If, indeed, international agreements are between nation-states - reciprocity requires that the decisions to respect them should be made by the "contracting" parties and not third parties. Thus, third party civil litigation based on international agreements (or a nation's allowance of them) is itself disrespectful.

Abbott, Gopalan, Marchant, & Sylvester on Nanoregulation Kenneth W. Abbott , Sandeep Gopalan , Gary E. Marchant and Douglas J. Sylvester (Arizona State University - College of Law , Arizona State University - College of Law , Arizona State University College of Law and Arizona State University College of Law) have posted International Regulatory Regimes for Nanotechnology on SSRN. Here's the abstract:
    This paper represents a very early stage of a collaborative research project on transnational NT regulation. In this project, we seek to apply a multidisciplinary perspective to the question of regulation of nanotechnology (NT). We begin in Section I by considering the nature of NT and some risks it may pose as it is more fully developed and utilized over time. We next consider the nature of transnational “regulation,” suggesting the range of legal, institutional and substantive forms this term can encompass. Because NT and its regulation are (like our project) at such early stages of development, we emphasize the importance of regulatory flexibility. In Section II, we consider a series of strategic choices that must be faced in designing transnational regulation in any issue area, including NT; these include the level and scope of regulation, the actors authorized to promulgate regulatory norms, the legal and institutional form of regulation, and finally its substantive content. In Section III, we argue that it is useful, although not definitive, to study models of transnational regulation developed for similar issues arising out of other forms of technology. While few if any of these models will be directly applicable to the unique characteristics of NT, the designers of these regulatory regimes faced similar strategic choices as well as similar problems, and the models they created can offer useful lessons. We briefly discuss a few potential models to illustrate the approach. Our larger research project will expand the study of transnational models beyond those discussed here, with a view to developing more specific recommendations for NT regulation. Consistent with our emphasis on regulatory flexibility, we conclude by tentatively suggesting a sequencing of regulatory approaches designed to allow NT regulation to develop over time into broader, more elaborate and more highly legalized form as we gain greater knowledge of, and experience with, the benefits and costs of NT.

Monday, June 12, 2006
Baude on Liberty & War Patrick L. Baude (Indiana University School of Law-Bloomington) has posted An Essay on the Spirit of Liberty in the Fog of War (Notre Dame Law Review, Vol. 79, p. 1321, 2004) on SSRN. Here is the abstract:
    This article previews the Supreme Court’s decision in the Guantánamo prisoners’ cases, arguing they should be dismissed for failure of jurisdiction. The worst possible outcome for civil liberties in wartime would be a decision to adjudicate the rights of the prisoners under an anemic view of individual rights and judicial jurisdiction. It is evident that the Court will not apply a robust conception of due process to these cases, in light of the inevitable pressures of national security in wartime. But faint-hearted judicial review, the likely result, will foster the political illusion that business as normal for our constitutional system is being carried on here, when nothing could be farther from the truth. It is better to admit the stark realities of presidential power in wartime than to pretend otherwise.

Marwell on the WTO Public Morals Exception Jeremy C. Marwell (New York University School of Law) has posted Trade and Morality: The WTO Public Morals Exception after Gambling (New York University Law Review, Vol. 81, p. 802, 2006) on SSRN. Here is the abstract:
    Despite a broad commitment to the liberalization of trade in goods and services, Member States of the World Trade Organization (WTO) retain legal authority to impose trade-restrictive measures “necessary to protect public morals.” As a matter of first impression under WTO law, in April 2005 the WTO Appellate Body interpreted the term “public morals” as it is found in the General Agreement on Trade in Services (GATS). The Appellate Body held that certain U.S. laws prohibiting the cross-border provision of Internet gambling services, alleged by the United States to be necessary to protect U.S. public morals, were inconsistent with U.S. obligations under GATS. This paper argues that the test adopted by the Appellate Body to determine whether a given trade-restrictive measure is “necessary to protect public morals” improperly impinges on the autonomy of WTO Member States. The paper proposes an alternative doctrinal framework which would better protect Member State autonomy while guarding against potential protectionist abuses and trade-regulatory inefficiencies. The increasing likelihood that trade-morality conflicts will arise in a heterogeneous WTO, the extensive employment of public morals clauses in trade practice worldwide, and the potential relevance of the public morals clause to the integration of international economic law and human rights suggest the growing importance of this emerging area of international economic law.

Waldman on Justice in Mediation Ellen A. Waldman (Thomas Jefferson School of Law) has posted The Concept of Justice in Mediation: A Psychobiography (Cardozo Journal of Conflict Resolution, Vol. 6, p. 247, 2005) on SSRN. Here is the abstract:
    Discussions of what justice means in mediation have a dialectical quality to them. At various points in the field’s history, justice in mediation is thought to consist of fully maximized disputant self-determination. At other historical moments, a tentative consensus appears to recognize that justice in mediation requires normative content independent of the disputants’ beliefs and values. What explains this dialectic? One explanation might focus on exogenous forces that shaped initial visions of mediation justice, prompted intellectual re-assessments and forced new understandings that directly challenged the field’s original ideological foundations. Another way to explain ongoing shifts in thinking about justice would focus less on external changes and more on the field’s intellectual infrastructure. This story minimizes mediation’s excellent adventure as it moves from an over-crowded community center to a municipal court building to a lavish law firm conference room. Instead, it looks at the relatively stable assumptions about private ordering and collective norms that animate leading mediation theorists’ musings on mediation’s goals and methods. This article argues that the dialectic of justice in mediation reflects the divergent beliefs about human nature and legal regulation that anchor the thinking of some of the field’s most influential scholars. In turn, these divergent beliefs reflect larger cleavages in the mediation community. This article pushes for a psychologically-minded approach, and urges we see our justice debates propelled, at least in part, by how optimistically or skeptically we assess the capability of individual parties and institutional actors in constructing fair outcomes from the raw material of human conflict.

Conference Announcement: Law & Philosophy at UCL
    CURRENT LEGAL ISSUES: LAW & PHILOSOPHY Tenth Annual Interdisciplinary Colloquium at University College London 3 July 2006-4 July 2006
        Legal normativity and ethical objectivity: Why lawyers need to tackle their meta-ethical homework, Dr Sylvie Delacroix, University of Kent Rules and Motivation: An Epistemic Reading of the Internal Point of View, Dr Antony Hatzistavrou, Visiting Fellow at Clare Hall & Lecturer in Philosophy, University of Cyprus Does Law Have a Moral Aim?, Dr George Letsas, Brunel University
      11.30am SESSION II:
        Conceptual Analysis, the Naturalistic Turn, and Legal Philosophy, Professor Ken Himma, Philosophy Department, Seattle Pacific University The Future of the Methodology, Debate in Jurisprudence, Professor John Oberdiek and Professor Dennis Patterson, Rutgers (Camden) School of Law and Department of Philosophy
      CRIME 1.50pm SESSION III:
        Caligula’s Pillar: The Public Character of Law, Dr Claire Valier, School of Law, Birkbeck The Foundations of Complicity in Theory and Doctrine, Prof G R Sullivan, University of Birmingham
      3.15pm SESSION IV:
        Apology and Reparation in a Multicultural State, Dr Christopher Bennett, Dept of Philosophy , University of Sheffield The Communicative Aspects of Civil Disobedience and Lawful Punishment, Kimberley Brownlee, Lecturer in Political Philosophy, University of Manchester The Educative Function of Law, Dr Brian Burge-Hendrix, Research Fellow (Law and Philosophy), Churchill College, Cambridge
      5.15pm SESSION V:
        Criminal Responsibility and Public Reason, Professor Antony Duff & Professor Sandra Marshall, University of Stirling
        The Law, the State and the Syllogism: Hegel’s Doctrine of the Concept taken seriously, Dr Christopher Kletzer, Lecturer in Jurisprudence, Faculty of Law, University of Cambridge, Teaching Associate in Philosophy and Law, Queens’ College, Cambridge The Attack on Liberalism, Dr Mark R Reiff, University of Manchester Hercules as Legal Humanist: The Historical Foundations of Dworkin’s Jurisprudence, Dr Mark D. Walters, Associate Professor, Queen’s University, Kingston, Ontario
      11.15am SESSION VII:
        Duress, Misrepresentation and the Validity of a Promise, Professor David Owens, Philosophy Department, The University of Sheffield Assurance vs. insurance: moral values and the distinction between contracts and torts, Dr Emmanuel Voyiakis, School of Social Sciences & Law, Brunel University
      1.45pm SESSION VIII:
        Truth, Reasonable Difference and Decisionism, Professor Stephen Guest, Faculty of Laws, UCL
        Rethinking Informed Consent, Baroness O’Neill, President of the British Academy; Principal of Newnham College, Cambridge
      4.15pm SESSION IX:
        Taking (Corporate) Pleasure in Civic Virtue: The Shift in the Philosophical Paradigms of Corporate Agency and Legal Responsibility, Dr. Aurora Voiculescu, Centre for Socio-Legal Studies, Oxford University Moral Reflections on Soldiers’ Responsibilities: The Clue to Devising a Legal Definition of Terrorism, Mr Robert Morris, King’s College London Property in private law, Professor Peter Jaffey, School of Law, Brunel University
      Lisa Penfold, Events Organiser at the Law Faculty, UCL Direct telephone: +44 (0)20 7679 1514 Direct fax: +44 (0)20 7679 1442 Email: Post
        Lisa Penfold, Faculty of Laws, UCL Bentham House, Endsleigh Gardens, London WC1H 0EG
      The Colloquium will be held at the Faculty of Laws, University College London, in the heart of London’s Bloomsbury district. A map of the venue will be sent to you with your booking confirmation.
      A list of accommodation within walking distance of UCL, from five star hotels to student residences, is available on the UCL website at:

Sunday, June 11, 2006
Legal Theory Calendar
    Thursday, June 15
      Oxford Jurisprudence Discussion Group: Nicola Lacey, On H.L.A. Hart's Biography
      Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Professor Jeffrey Jowell, ‘The Demise of Parliamentary Sovereignty’
      University of Arizona Law: Darian Ibrahim, Assessing Director Liability After Disney: On an Individual Director or Whole Board Basis?
      Florida State Law: Erik Knutsen, Queen's University/FSU College of Law (visiting professor)
    Friday, June 16
      University of Colorado Boulder: 2006 Junior Tax Scholars Conference
        Panel 1: Business Tax Issues
          9:15-9:45 David Walker, Accounting and Corporate Behavior Commentators: Vic Fleischer, Alex Raskolnikov 9:45-10:15 Vic Fleischer, Two and Twenty: Partnership Profits in Venture Capital Funds and Private Equity Funds Commentators: David Hasen, David Walker 10:15-10:45 David Hasen, Retroactivity in Legal Transitions Commentators: Neil Buchanan, Alex Raskolnikov 10:45-11:15 Alex Raskolnikov, A Social Cost of Social Norms Commentators: David Hasen, Vic Fleischer
        Panel 2: Historical Perspectives on Current Tax Issues
          11:30-12:00 Ajay Mehrotra, From Labor to Capital: The Roots and Transformation of Tax Preferences for Capital Income Commentators: Adam Chodorow, Vic Fleischer 12:00-12:30 Adam Chodorow, Tithing and Taxes Commentators: Lily Batchelder, Lloyd Mayer
        Panel 3: Public Finance/Budgeting
          1:15-1:45 Neil Buchanan, Social Security Financing Commentators: Lily Batchelder, David Gamage 1:45-2:15 Michael Doran, Generational Accounting in Federal Fiscal Policy Commentators: Neil Buchanan, David Gamage 2:15-2:45 David Gamage, Coping with the Rollercoaster Effects of Balanced Budget Constraints Commentators: Steven Dean, Michael Doran
        Panel 4: Tax and Social Policy
          3:00-3:30 Miranda Perry, Why Limit Charity? Exploring the Income Tax Charitable Deduction AGI Limits Commentators: Lloyd Mayer, Ajay Mehrotra 3:30-4:00 Lily Batchelder, Inheritance Tax Proposal Commentators: Michael Doran, Miranda Perry 4:00-4:30 Lloyd Mayer, Regulating Political Activity: Tax Law and the IRS vs. Election Law and the FEC Commentators: Kristin Hickman, Miranda Perry
    Saturday, June 17
      University of Colorado Boulder: 2006 Junior Tax Scholars Conference
        Panel 5: International Tax Issues
          9:00-9:30 Craig Boise, Deferral, Repatriation Incentives and the Utility of Amnesties Commentators: Allison Christians, Ruth Mason 9:30-10:00 Ruth Mason, Subsidies and Free Markets: State Tax Discrimination in the US and Europe Commentators: Craig Boise, Allison Christians, Kristin Hickman 10:00-10:30 Allison Christians, Treaties, Executive Agreements and Foreign Policy Power Commentators: Craig Boise, Ruth Mason, Ajay Mehrotra 10:30-11:00 Steven Dean, Tax Flight Treaties: Designing and Effective Solution to the Tax Haven Problem Commentators: Allison Chirstians, Ruth Mason, Adam Rosenzweig
        Panel 6: Administrative Law Issues
          11:15-11:45 Kristin Hickman, Coloring Outside the Lines: Examining Treaury's (Lack of) Adherence to APA Procedural Requirements Commentators: Adam Chodorow, Adam Rosenzweig 11:45-12:15 Adam Rosenzweig: Elective Tax Fictions in a Purposive World: Can an Elective Tax Fiction be Abusive? Commentators: Steven Dean, David Walker

Legal Theory Lexicon: Formalism and Instrumentalism
    Introduction American law students learn about formalism instrumentalism early on—although those particular terms may not be introduced. Many law students hunger for “black letter law,” for legal rules that can be applied to the facts in a more or less determinate fashion. But in most law school classrooms, this hunger is not satisfied. Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for good legal rules. Some emphasize good consequences—perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice.
    In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize gay sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text is not much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state.
    But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.
    In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory.
    Legal Formalism What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following
      Legal formalism? That’s “mechanical jurisprudence,” when a judge decides a case without thinking about the consequences or the purpose of the rule.
    In other words, “legal formalism” is sometimes used as pejorative label for unthinking and unintelligent legal reasoning.
    We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:
    • Judges should apply the law and not make it.

    • There are legal rules that constrain what legal actors may lawfully do.

    • There is a difference between following the law and doing what you think is best.

    • Judges should decide cases in accord with the text of the applicable constitutional or statutory provision or with the holding of controlling precedents.
    This list go on and on, but you get the general idea. The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not). That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:
      1. The law consists of rules.
      2. Legal rules can be meaningful.
      3. Legal rules can be applied to particular facts.
      4. Some actions accord with meaningful legal rules; other actions do not.
      5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement.
    Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.
    Legal Instrumentalism Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.
    The Realist Critique of Legal Formalism It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Ideology does the work; legal formalism dresses it up so that it looks pretty.
    The Modern Revival of Legal Formalism Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be.
    Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents.
    Conclusion The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie.
    Related Entries

Saturday, June 10, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends A General Jurisprudence of Law and Society by Brian Tamanaha. Here's a blurb:
    A theoretical and sociological exploration of the relationship between law and society, this book constructs an approach to law that integrates legal theory with sociological approaches to law. Law is generally understood to be a mirror of society--a reflection of its customs and morals--that functions to maintain social order. Focusing on this common understanding, the book conducts a survey of Western legal and social theories about law and its relationship within society, engaging in a theoretical and empirical critique of this common understanding.
Tamanaha's book was just awared the Mahoney Prize in Legal Theory. Highly recommended!

Download of the Week The Download of the Week is Chevron as a Voting Rule by Adrian Vermeule and Jacob E Gersen. Here is the abstract:
    In Chevron v. Natural Resources Defense Council, the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from the whole set of votes, rather than an internal component of the decision-rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time; and holding the level of deference constant, a voting rule of agency deference would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections.
And a bit more:
    The precise details of the voting rule might vary, and we will discuss different versions. To motivate the discussion, however, imagine a voting rule stating that where a litigant challenges agency action as inconsistent with an organic statute, the agency would prevail unless the judges, asking simply what the best interpretation of the statute is, vote to overturn the agency by supermajority vote—say, by a 6-3 vote on the Supreme Court, or by a 3-0 vote on a court of appeals panel.
Download it while its hot!

Friday, June 09, 2006
Thank You and a (temporary) Goodbye to 3L Epiphany Ian Best did some really interesting and important work on the phenomenon of law blogging at his blog 3L Epiphany, including a census and categorization of law blogs and investigations of citations to law blogs in judicial opinions and law review articles. His sign off post is The (Temporary) Final Conclusion of 3L Epiphany. If you are interested in law blogging and its relationship to legal scholarship, Best's blog is, well, the best. Thank you!

Horwitz on Religion in Judicial Nominations Paul Horwitz (Southwestern Law) has posted Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations on SSRN. Here is the abstract:
    The Religious Test Clause of the United States Constitution states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States". Although it is the only place in the main text of the Constitution that mentions religion, it has been habitually ignored - until now. In the past several years, a spate of lower federal court nominations and two Supreme Court nominations - the successful nomination of Chief Justice John Roberts and the abortive nomination of Harriet Miers - have occasioned public debate over whether the Religious Test Clause forbids Presidents and/or Senators from supporting, opposing, or even questioning nominees on the basis of religion. More broadly, these events have been the occasion for discussions about whether and how religion may be raised in the public debate surrounding judicial nominees. Because the Roberts and Miers nominations present neat mirror images of each other, with religion used as a disqualification in one nomination and a qualification in the other, it is an opportune moment to assess what the Religious Test Clause has to say about these cases, and about the use of religion in the federal judicial nomination process more generally. This article, a contribution to a Symposium on "Religion, Division, and the Constitution," is the first to fully examine these questions. After discussing the invocation of the Religious Test Clause in the recent nomination controversies, it looks carefully at the text and history of the Religious Test Clause. It argues that the Religious Test Clause precludes Congress or the President from imposing a formal test oath on would-be federal office-holders that would require them to avow or disavow, under oath, allegiance to a particular faith or set of religious doctrines. And that is all it does. A President may select nominees on the basis of their faith if he chooses; a Senator may question a nominee on his or her faith or religiously derived beliefs, or support or oppose a nominee on that basis. Thus, those public officials, public figures, and commentators who argued during the recent nomination process that the Religious Test Clause barred certain actions or inquiries were wrong. I argue that this conclusion is not only descriptively accurate; it is also normatively sound. There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee. To silence such inquiries because of the dangers of intermixing religion and politics ultimately disserves the broader principle that religion ought to be a fully welcome part of discussion in the public sphere. In addition, the broad reading of the Religious Test Clause, by constitutionalizing an area of politics, unduly limits the scope of popular responsibility for the political process. The best remedy for abuses of religion in the judicial nomination process lies in the realm of ordinary politics, and not in the Constitution. Although the Constitution thus provides few if any barriers to the use and abuse of religion and religious rhetoric in the federal judicial nomination process, nothing prevents us from attempting to craft evaluative criteria that might lead to more fruitful uses of religion in public debate, and to guide our understanding of how well or poorly religion has been used in the public debate surrounding judicial nominations. The article thus offers several principles of "constitutional etiquette" that might guide our understanding of the sound use of religion in this context, and measures the recent nomination controversies against these standards. It concludes that even with these criteria in place, the invocation of religion in judicial nominations, as elsewhere, may lead to more rather than less division in our national politics. But the price is well worth paying, if our public discussions become richer and deeper as a result.

Siegel on Stevens on Equal Protection Andrew M. Siegel (University of South Carolina School of Law) has posted Equal Protection Unmodified: Justice John Paul Stevens and the Case for Unmediated Constitutional Interpretation (Fordham Law Review, Vol. 74, p. 2339, 2006) on SSRN. Here is the abstract:
    In one of his first major writings on the United States Supreme Court, Justice John Paul Stevens famously argued that “[t]here is only one Equal Protection Clause.” In the ensuing three decades, that quotation has become something of a battle cry for commentators critical of tiered equal protection review, many of whom not only seek to dismantle tiered equal protection scrutiny but also to replace it with an alternative (usually more complicated) doctrinal super-structure. This Article argues that his association with these commentators has partially obscured Justice Stevens’s unique equal protection methodology. While he shares (indeed inspired) their critique of the current tiered methodology, Justice Stevens has little interest in building a complicated alternative doctrinal super-structure. To the contrary, Justice Stevens advocates - and practices - an equal protection methodology that largely eschews mediating doctrine of any kind, instead focusing his energy on the unmediated application of the constitutional text to particular cases. This Article is both descriptive and evaluative, first demonstrating that Justice Stevens’s equal protection methodology is largely unmediated, then assessing whether the results and consequences of his three-decade long experience with such a methodology reinforce or refute traditional scholarly criticisms about such an approach. The Article concludes cautiously, arguing that Justice Stevens has proven the plausibility of such an approach and has demonstrated that the traditional criticisms are at a minimum overstated, but that his approach has some disquieting consequences for the role of the Supreme Court within the American polity.

Blogging on the Disney Compensation Case A variety of reactions to the decision of the Delaware Supreme Court affirming the Chancellor's ruling that exonerated Disney's board from liability on the basis of the board's approval of a $140 million payment to Michael Ovitz at the end of his very short term as Disney's president. Check out Bainbridge, Ribstein, and this roundup by Gordon Smith.

Congratulations to Tamanaha Congratulations to Brian Tamanaha, who has been awarded the Mahoney Prize in Legal Theory by the Julius Stone Institute of Jurisprudence of the University of Sydney for his "A General Jurisprudence of Law and Society". You can find the announcement here. Tamanaha's work in the broadly sociological jurisprudential tradition is insightful, learned, and important. This prize is richly deserved.
And be sure to check out Tamanaha's new book, On The Rule of Law: History, Politics, Theory.

Commons & Anticommons Last Friday and Saturday, I was at a conference organized by Lee Fennell and Tom Ulen on the "Commons and the Anticommons." The conference website is now up--with links to audio and information about the readings and participants. Larry Ribstein has some comments over at Ideoblog. Here's a taste:
    Heller first discussed the anti-commons problem in relation to the property rights regime in post-Soviet Russia. He explained why storefronts stayed empty despite thriving kiosks out front: a maze of rights by disparate parties with incompatible interests that prevented property from moving to its best use. Although this seems like an arcane problem from a setting that has little to do with the contemporary US free market economy, in fact it has a lot to do with us. As an article co-authored by James Buchanan included in the readings highlights, the anticommons is a persistent pathology of modern bureaucracies. Environmental and other laws often give exclusion rights to what Buchanan called “zealots” with non-economic motivations who are insensitive to efficient uses of property. Because we’re persuaded that “efficiency” can’t be the last word, we get to a sad state of affairs in which resources are wasted and nobody is happy.
Actually, I'm not so sure that the "regulatory anticommons" should be descrbied as an "anticommons" problem at all. The situation described by Buchanan & Yoon in their article (James M. Buchanan & Yong J. Yoon, Symmetric Tragedies: Commons and Anticommons, 43 J. Law & Econ. 1 (2000) is based on an analogy between an anticommons--where ownership is fragmented--and regulation, where regulatory permission is required for certain uses. In some contexts, multiple permits may be required: for example, anyone who builds a house will be required to pull a variety of permits and get approval from inspectors. But this isn't an anticommons at all: not in any sense in which the term "anticommons" has any precise meaning. The bureaucrats who issue permits and the inspectors who sign off on construction are not owners, and fragmented ownership is the definition of an anticommons. The incentives and roles of owners and regulators are different, and the reasons for creating regulations are different from the reasons for creating property rights. It's just hard to see what the analogy really illuminates, and it's pretty easy to see how the analogy easily leads to conceptual confusion.
Check out Ribstein's post and the conference website!

Thursday, June 08, 2006
Kesan & Shah on Software Defaults Jay P. Kesan and Rajiv C. Shah (University of Illinois College of Law and University of Illinois at Chicago - Department of Communication) have posted Establishing Software Defaults: Perspectives from Law, Computer Science and Behavioral Economics on SSRN. Here is the abstract:
    Policymakers are increasingly pondering or evaluating the use of software and its influence on societal concerns such as privacy, freedom of speech, and intellectual property protection. A necessary step in this process is deciding what the “settings” should be for the relevant software. In this paper, we build upon work in computer science, behavioral economics, and legal scholarship to establish a well-defined framework for how default settings in software should be determined. This normative approach towards software settings stands apart from most previous scholarship, which focuses on the effect of software settings. Our recommendations include several scenarios where policymakers should intervene and ensure that defaults settings are set to enhance societal welfare. These recommendations are illustrated with three examples. If policymakers change the default settings in our examples, they would enhance competition, security, and privacy. We believe that the manipulation of software to enhance social welfare is a powerful tool and a useful complement to traditional legal methods.

Cao on Culture Change Lan Cao (William and Mary Law School) has posted Culture Change on SSRN. Here is the abstract:
    Since September 11, 2001, law and development - exporting markets and rule of law to developing and transitional countries - has become part of the official National Security Strategy of the United States. Development not only has a powerful human rights component - countries that have reached a certain level of economic development are more likely to have a good human rights records. But in the post-September 11 world, development is also a national security issue, a crucial component in the fight against terrorism. This effort is doomed to fail unless it addresses culture. But the standard law and development “assistance menu” remains intransigently law-centered, even though law is, I argue, peripheral, not central, to the development problem of poor countries. Yet, law and development scholars have not asked this question: after so many years of drafting laws and more laws, why is the field consistently characterized by failure? Law and development must move beyond law and the technical dimensions of the “rule of law.” As slippery and complex a concept as culture may be and as controversial as the notion of culture change undoubtedly is, especially if externally influenced or induced, I argue that we must ask whether certain cultural attributes are an impediment to that society’s economic development. Law and development must address even deeply embedded cultural practices and beliefs. Examples include specific practices: India’s caste system, which not only violates human rights norms but is also economically inefficient; restrictions on education for girls; the prohibition on charging interest because it is an essential part of the “Islamic way of life”; personalistic and group-focused relationships and patterns of authority that discourage individual wealth accumulation, especially by those not from the ruling elites. There are others. The Article examines how international law, public and private, has marginalized culture and argues that despite this history, law and development, which inherits the international law tradition, must actively engage culture issues when cultural lock-in is a contributing cause of continuing poverty. A significant portion of the Article responds to opposition that my proposal is likely to generate, primarily on cultural self-determination grounds. The rest of the Article explores culture change projects that are currently pursued as well as those that have historically been undertaken, for example, by Japan, in the 1800s to catch up with the West. Some of the questions I explore include how culturally-based choices can be altered by governments, individuals, non-governmental organizations and development agencies; how the social meaning of an undesirable practice, refusing education for girls, for example, can be changed; the methods that may be useful, whether it be education, information, persuasion, coercion, or the provision of economic incentives; the institutional arrangements, such as public-private partnerships, that would accomplish the desired objectives. Although law does have an expressive function and thus certain laws make certain statements which could in turn influence social norms and culture (for example, the passage of the civil rights laws in the United States had an influence on cultural norms between whites and African Americans), this capacity to affect preferences and beliefs through law is questionable in countries where the rule of law is itself weak. For those countries, I argue that law is insufficient and culture change will be needed. The Article contains both a normative defense of the proposal and a prescriptive framework in which culture change may be accomplished.

Fisher on the WTO, Risk Regulation, and the "Science/Democracy" Dichotomy Elizabeth Fisher (Oxford Faculty of Law - Oxford University) has posted Beyond the Science/Democracy Dichotomy: The World Trade Organisation Sanitary and Phytosanitary Agreement and Administrative Constitutionalism (CONSTITUTIONALISM, MULTI-LEVEL TRADE GOVERNANCE, AND SOCIAL REGULATION, C. Joerges & E-U. Petersmann, eds., Hart Publishing, 2006) on SSRN. Here is the abstract:
    It has become popular to characterise the WTO SPS Agreement as imposing scientific requirements in relation to democratic processes of national risk regulation standard setting. This is an incorrect characterisation of risk regulation standard setting and the role of the SPS Agreement. It is incorrect because risk regulation standard-setting is primarily an activity for public administration and not democratic institutions. As such the SPS Agreement is concerned with regulating administrative action and interpretations of the Agreement rest on assumptions about how legitimate public administration is constituted, limited and held to account, or, in other words, theories of administrative constitutionalism. This is illustrated with examining the different approaches taken to interpreting the SPS Agreement by the Panel and the Appellate Body in EC-Hormones. It is also argued that the present focus on the on the science/democracy dichotomy is dangerous because it is resulting in scholars and lawyers pursuing the wrong lines of inquiry in thinking about the SPS Agreement, dispute settlement and the interface between trade regulation and social regulation.

Welcome to the blogosphere . . . . . . to International Law, Legal Theory, and More by Maya Steinitz. There's a post up entitled International Criminal Law and the Israeli-Palestinian Conflict -- Part I Check it out.

"All Things" US News & World Report Tom Bell has been blogging about his reconstruction of the model for the US News rankings of U.S. Law Schools. Check out Z-Scores in Model of USN&WR's Law School Rankings and Change to U.S. News Law School Rankings Methodology and a variety of other posts.

Wednesday, June 07, 2006
Vermeule & Gersen on Chevron Adrian Vermeule and Jacob E Gersen (University of Chicago - Law School and University of Chicago - Law School) have posted Chevron as a Voting Rule (Yale Law Journal, Vol. 116, 2006) on SSRN. Here is the abstract:
    In Chevron v. Natural Resources Defense Council, the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from the whole set of votes, rather than an internal component of the decision-rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time; and holding the level of deference constant, a voting rule of agency deference would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections.

Christopher on Blackmail Russell Christopher (University of Tulsa College of Law) has posted Meta-Blackmail (Georgetown Law Journal, Vol. 94, p. 739, 2006) on SSRN. Here is the abstract:
    Blackmail remains one of the most difficult, and unsolved, puzzles in all of law. While nearly all endorse blackmail's criminalization, no one can explain why it should even be a crime. By introducing the novel concept of meta-blackmail, this Article explains why the puzzle of blackmail - it can be a crime to conditionally threaten to do what one has a right to do - cannot be resolved. While a conventional blackmail proposal backs a demand for money with the threat to disclose the recipient's embarrassing secret, a meta-blackmail proposal backs a demand for money with the threat to blackmail the recipient. Thus, conventional blackmail threatens a lawful act (e.g., disclosure of an embarrassing secret), but meta-blackmail threatens an unlawful act - blackmail itself. The comparative assessment of meta-blackmail and conventional blackmail reveals a trilemma: (i) since meta-blackmail threatens an unlawful act, meta-blackmail is a more serious level of criminality; (ii) since both meta-blackmail and conventional blackmail, in effect and function, demand money for nondisclosure of an embarrassing secret, they are equivalent; and (iii) since threatening blackmail should be less serious than actually committing blackmail, meta-blackmail is less serious. The trilemma, which is best resolved by decriminalizing blackmail, demonstrates that criminalizing blackmail violates a number of intuitions that are more compelling than the intuition that blackmail is properly criminalized. To preserve the more valued intuitions, blackmail should be decriminalized.

Huffman on Breyer Max Huffman (University of Cincinnati - College of Law) has posted Using All Available Information on SSRN. Here is the abstract:
    In this review essay published in the Review of Litigation (Univ. of Texas), I consider Justice Breyer's recent book Active Liberty: Interpreting our Democratic Constitution. Much of the review is a comparison and contrast with Justice Scalia's 1997 work, A Matter of Interpretation: Federal Courts and the Law. I consider Justice Breyer's purposes and consequences approach to interpretation and its application to the process of constitutional and statutory interpretation. I then analyze whether it, or Justice Scalia's texualism and originalism - together, in Justice Breyer's words, literalism - tend to be more amenable to consistent and principled application. I conclude that the two philosophies are not so far apart as they seem. Both can be criticized, if one is so inclined, as placing too great of faith in an unelected federal judiciary. The most attractive aspect of Justice Breyer's book, a call for using all available information in the interpretive exercise, unfortunately is subordinated. It remains to be seen whether Justice Breyer's new publication will help courts in reaching a consistently applicable interpretive philosophy that promises majority acceptance.

Kritzer on Theorizing Judicial Craft Herbert M. Kritzer (University of Wisconsin - Madison - Department of Political Science) has posted Toward a Theorization of Craft on SSRN. Here is the abstract:
    This paper was prepared for inclusion in a symposium on “judgecraft.” My specific goal in this paper is to develop a theorization of craft as an analytic concept that can be applied in studies of the work of professionals, including both judges and lawyers. Building on sociological work that distinguishes craft from art, I describe a set of elements that can be used to analyze the work and working situation of lawyers, judges, and other professionals: utility, consistency, clientele, skills & techiques, problem solving, and aesthetic. I posit that these elements can be organized along two dimensions, one that distinguishes between elements that are internal to the craft community and those that are external, and a second dimension that distinguishes elements that deal with production, functionality, and evaluation. The paper concludes with suggestions as to how this framework might be applied to the analysis of the work of judges.

Book Announcement: Law, Politics, and Morality in Judaism, Edited by Walzer
    Law, Politics, and Morality in Judaism, Edited and with a Preface by Michael Walzer To read the entire book description or a sample chapter, please visit: Jewish legal and political thought developed in conditions of exile, where Jews had neither a state of their own nor citizenship in any other. What use, then, can this body of thought be today to Jews living in Israel or as emancipated citizens in secular democratic states? Can a culture of exile be adapted to help Jews find ways of being at home politically today? These questions are central in Law, Politics, and Morality in Judaism, a collection of essays by contemporary political theorists, philosophers, and lawyers. Paper | $17.95 / £11.95 | ISBN: 0-691-12508-2 Cloth | $55.00 / £35.95 | ISBN: 0-691-12507-4

Book Announcement: Berlin on Political Ideas in the Romantic Age
    Political Ideas in the Romantic Age: Their Rise and Influence on Modern Thought byIsaiah Berlin, Edited by Henry Hardy, With an introduction by Joshua L. Cherniss To read the entire book description, please visit: It is sometimes thought that the renowned essayist Isaiah Berlin (1909-1997) was incapable of writing a big book. But in fact he developed some of his most important essays--including "Two Concepts of Liberty" and "Historical Inevitability"--from a book-length manuscript that he intended to publish but later set aside. Published here for the first time, Political Ideas in the Romantic Age is the only book in which Berlin lays out in one continuous account most of his key insights about the history of ideas in the period that he made his own--the Romantic age. Distilling his formative early work in the history of ideas, the book also contains much that is not found elsewhere in his writings. The last of Berlin's posthumous books, it is of great interest both for his treatment of the subject and for what it reveals about his intellectual development. Cloth | $29.95 / £18.95 | ISBN: 0-691-12687-9

Book Announcement: Grotius on Prize & Booty
    Commentary on the Law of Prize and Booty By Hugo Grotius, Edited and with an Introduction by Martine Julia van Ittersum Publication date: May 2006. 6 x 9. 662 pages. Hardcover. ISBN 0-86597-474-8. $20.00 / £13.95. Paperback. ISBN 0-86597-475-6. $12.00 / £ 8.95. The history of Commentary on the Law of Prize and Booty is complex. When Grotius's personal papers were auctioned in The Hague in 1864, Dutch scholars discovered that his famous Mare Liberum was just one chapter in a manuscript of 163 folios, written in justification of Jacob van Heemskerck's capture of the Portuguese merchantman Santa Catarina, in the Strait of Singapore in February 1603. A prominent Dutch historian of the nineteenth century, Robert Fruin, persuaded the classical scholar H. G. Hamaker to transcribe and publish it, and the Latin text was issued in 1868. Knud Haakonssen, the General Editor of the Natural Law and Enlightenment Classics series, states, "Grotius's work on the right of prize and booty is unusual. It has been argued in some of the most prominent recent scholarship that the work, while never published by Grotius himself, was the intellectual resource for much of his most important work. One chapter of the manuscript was used for his famous work on the free sea, Mare Liberum, and many of the most important features of his greatest work, De Jure Belli ac Pacis (The Rights of War and Peace), are either derived from, or revised versions of, the earlier writing." The Liberty Fund edition is based on the one prepared by Gwladys L. Williams and Walter H. Zeydel for the Carnegie Endowment for International Peace. It combines the original text and new material, making it a highly attractive edition of a work that is difficult to obtain.

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

Tuesday, June 06, 2006
Two on Chevron
    Mark J. Richards , Joseph L. Smith and Herbert M. Kritzer (Grand Valley State University - Department of Political Science , Grand Valley State University - Department of Political Science and University of Wisconsin - Madison - Department of Political Science) have posted Does Chevron Matter? (Law and Policy, Vol 28, No. 4, October 2006) on SSRN. Here is the abstract:
      In this article we evaluate whether the Supreme Court's much-discussed decision in Chevron v. Natural Resources Defense Council (1984) signaled a lasting difference in how the justices decide administrative law cases by comparing and testing the predictions of three distinct theories of Supreme Court behavior. The legal model predicts an increase in deference to administrative agencies. This prediction is shared by the jurisprudential regime model, which also predicts that the justices evaluate key case factors differently before and after Chevron. The attitudinal model predicts no change in the justices' behavior as a result of Chevron. We find support for the all three models, although the fact that the legal and jurisprudential regime models are supported undermines the assertion of the attitudinal model that law cannot explain Supreme Court votes on the merits.
    Cass R. Sunstein and Thomas J. Miles (University of Chicago - Law School and University of Chicago - Law School) have posted Do Judges Make Regulatory Policy? An Empirical Investigation of 'Chevron' (University of Chicago Law Review, Vol. 73, Summer 2006). Here is the abstract:
      In the last quarter-century, the Supreme Court has legitimated agency authority to interpret regulatory legislation, above all in Chevron U.S.A., Inc v Natural Resources Defense Council, Inc, the most-cited case in modern public law. Chevron recognizes that the resolution of statutory ambiguities often requires judgments of policy; its call for judicial deference to reasonable inter-pretations was widely expected to have eliminated the role of policy judgments in judicial review of agency interpretations of law. But this expectation has not been realized. On the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices. Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern. Similar patterns can be found on federal appellate courts. In lower court decisions involving the EPA and the NLRB from 1990 to 2004, Republican appointees demonstrated a greater willingness to invalidate liberal agency decisions and those of Democratic administrations. These differences are greatly amplified when Republican appointees sit with two Republican appointees and when Democratic appointees sit with two Democratic appointees.

Araiza on Patel & Ford Motor Co. William D. Araiza (Loyola Law School (Los Angeles)) has posted Limits on Agency Discretion to Choose Between Rulemaking and Adjudication: Reconsidering Patel v. INS and Ford Motor Co. v. FTC on SSRN. Here is the abstract:
    This essay, a contribution to a symposium on “the most underrated administrative law case,” offers as candidates for this title two Ninth Circuit cases, INS v. Patel and FTC v. Ford Motor. These two cases consider the limits of agencies’ concededly broad discretion to proceed via adjudication as opposed to rulemaking. These cases are closely related - Patel applies a principle, which I call the “anticircumvention” principle, that Ford Motor then expands on. Patel’s limits on agency procedural discretion fit neatly with the substantive rule that agencies may not ignore their own regulations. For this reason, Patel is correctly decided. But Patel is underrated. Compared with Ford Motor, it is far less discussed by commentators and courts, and the principle it announces may suffer by association with Ford Motor’s more aggressive - and ultimately incorrect - variant. Patel deserves more attention. By stating an exception to the general rule that agencies can choose between rulemaking and adjudication, Patel stakes out the limitations of that rule. In delineating the extent of agency discretion on an important issue, Patel makes a significant contribution, and thus qualifies as an underrated case. For its part, Ford Motor’s expansion of the anti-circumvention principle fails; thus, I do not argue that Ford Motor is underrated because it was correctly decided. However, the heavy criticism that commentators and courts have heaped on Ford Motor fails to recognize the case’s usefulness. Ford Motor takes Patel’s anticircumvention principle to its logical endpoint. In doing so it reveals its limits, and illustrates important truths about the role of procedure in administrative law. Its attempt to apply basic administrative law principles, while ultimately misfiring, does not warrant one-sided criticism. While incorrect, Ford Motor deserves more credit than it gets. Ultimately, Patel and Ford Motor can be visualized as standing close to each other, but nevertheless on opposite sides of the line separating acceptable and unacceptable uses of agencies’ discretion on the rulemaking/adjudication issue. If nothing else, the usefulness of these two cases in illuminating that line warrant more attention to both of them, and increased consideration of Patel as a correct statement of law.

Herring on Legal Scholarship & Humility David J. Herring (University of Pittsburgh - School of Law) has posted Legal Scholarship, Humility, and the Scientific Method on SSRN. Here is the abstract:
    This essay responds to the question of What next for law and behavioral biology? by describing an approach to legal scholarship that relies on the scientific method. There are two steps involved in this approach to legal scholarship. First, the legal scholar must become familiar with an area of scientific research that is relevant to the development of law and policy. (This essay uses behavioral biology research as an example.) Second, the legal scholar must seek and form relationships across disciplines, becoming an active member of a scientific research team that conducts studies relevant to particular issues of law and policy. This approach to legal scholarship does not conceive law as a science. It also does not place the legal scholar in the role of a scientist or empiricist. Instead, it places the legal scholar in a much more modest role - as a participating member of a scientific research team. In this role, the legal scholar contributes to a research endeavor that employs the scientific method to produce new knowledge mostly in small, incremental steps. This scholar strives for nothing more than to participate in the production of new knowledge and the effective communication of that knowledge to other scholars, legal decisionmakers, and policymakers. It is a role that requires humility and promises significant advances in knowledge relevant to law and policy.

Kritzer on Insurance Defense Practice Herbert M. Kritzer (University of Wisconsin - Madison - Department of Political Science) has posted The Commodification of Insurance Defense Practice (Vanderbilt Law Review, 2006 Forthcoming) on SSRN. Here is the abstract:
    Drawing on a period of observation in an insurance defense law firm and a series of interviews with insurance defense lawyers in other firms, this paper presents an analysis of the work and relationships involved in insurance defense practice. The central argument of the paper is the insurance defense practice is viewed as a commodity by many, perhaps most, insurance companies. The result is to drive down the price for such services and to impose a variety of demands on lawyers providing insurance defense services that affect the work that the lawyers do. Specific topics discussed include fees and fee arrangements, working relationships between lawyers and insurance adjusters, marketing and client retention, and interactions between insurance defense lawyers and lawyers representing other insurers or plaintiffs.

Monday, June 05, 2006
Monday Calendar>
    Aristotelian Society, London: Modern Moral Philosophy (Again), Candace Vogler (Room N336, Senate House, North Block)

Parmet on the Constitutional Right to Reject Treatment Wendy E. Parmet (Northeastern University - School of Law) has posted Terri and Katrina: A Population-Based Perspective on the Constitutional Right to Reject Treatment on SSRN. Here is the abstract:
    In 2005, two events garnered great national attention: the controversy over the death of Terri Schiavo and the destruction of New Orleans by Hurricane Katrina. Although each event was compelling and even tragic, only the former, which focused on whether a single individual would be removed from life support, was widely understood as implicating constitutional questions. Using a population-based perspective, that is influenced by the discipline of epidemiology and focuses attention on both the interests of and the impact of law on populations, this Article analyzes why a controversy concerning the life and death of one woman was understood as raising questions of constitutional law while the failure to protect thousands was not viewed as such. The Article begins reviewing the courts' embrace of an individualistic right-to-reject treatment in cases such as Cruzan v. Director, Missouri Department of Health and contrasting that embrace with the Supreme Court's rejection, in cases such as DeShaney v. Winnebago County Department of Social Services, of any broad right to care and protection. Taken together, these cases demonstrate that contemporary constitutional law fails to appreciate the interdependency of risk and the social and population context in which health threats, and treatment decisions, arise. As a result, the rights vindicated in cases such as Cruzan and Schiavo are particularly shallow as they cannot provide either individuals or populations (such as that in New Orleans) with the opportunity to make meaningful risk-reducing choices. In addition, because of the influence of constitutional discourse in our society, the shallowness of constitutional rights spills over to influence political and legislative priorities. Hence, the fact that the population of New Orleans had no legally recognizable constitutional right to protection against hurricanes may have abetted the government's failure to protect the city's residents. Likewise, a constitutional discourse that focuses on the plight of a single woman while overlooking the multitude of problems faced by large populations may reinforce the political system's failure to protect populations from other potential natural disasters, such as a potential influenza pandemic.
It seems to me that this article begs the question by assuming a consequentialist perspective. The claim that the constitutional right to refuse treatment is "shallow" is motivated by the assumption that the criteria for "depth" or "shallowness" is consequentialist. Of course, if you simply assume a consequentialist criterion, then the argument is easy, but that assumption is deeply controversial. The right to refuse treatment is almost always supported by deontological considerations--"dignity" or "autonomy," for example. If the deontology were correct as matter of moral theory, then one might say that rights to refuse treatment are "deep" in the moral sense.
So what does the author have to say about these questions. The only discussion of autonomy comes on the last two pages:
    the juxtaposition of the tragedies of Terri and Katrina remains important. The relationship between these two dramas of 2005 exposes our legal system’s reinforcement of the myths that individuals can be autonomous if only they are left alone, and that a thin notion of autonomy can be an effective response to the problems of human incapacity and premature death. Moreover, the story of Terri and Katrina also reveals the power and consequence of the law’s projection of us as isolated from our fellow beings. Ultimately, the story speaks about the influence of a legal rhetoric that makes us believe that if we only have a right to die, or in the converse, a right to life, we can by ourselves control our own death. Unfortunately, by believing those myths, and by failing to create room within our jurisprudence for the recognition of the interdependence of populations and the importance of public health protection, we often fail, as in the case of Katrina, to take the actions that could be taken to reduce the likelihood of many premature deaths.
One hardly knows what to make of these claims. One reading could be that there is a claim about myths as "false beliefs" that are generally pervasive in society and that have a causal effect that is deliterious. The claim would then be that constitutional discourse about the right to refuse treatment in some way produces these false beliefs which in turn produce ineffective policy for the prevention of large-scale risks to public health. I am reluctant to attribute this claim to the author--because the claim seems wildly implausible and because no evidence is offered for this claim. Another possible interpretation is that the article is claiming that constitutional discourse about the right to refuse treatment leads some individuals to acquire false beliefs about the relationship of rights of autonomy to other considerations that are relevant to living a flourishing life. Again, the principle of charity suggests that this claim should not be attributed to the author--both because of implausibility and the lack of evidence. Yet a third interpretation is that the author is making a claim in moral philosophy--arguing that an adequate conception of autonomy must incorporate the positive conditions for the effective exercise of autonmy. This third point might be one of normative theory or it could be a claim about the pernicious influence of constitutional discourse on moral theorizing. In either case, the claim is woefully underdeveloped.
There are passages in the article like the following:
    Consider first one implicit remise of our end-of-life jurisprudence, namely that uman beings can and ought to be independent and autonomous when it comes to their health and their dying. As critics have noted, the courts’ concern for respecting utonomy and choice is highly problematic when individuals, such as Terri Schiavo, ack decisional capacity. In such cases, a jurisprudence based on such a thin conception of autonomy risks becoming entangled in hopeless attempts to divine the intent of those lack it. More profoundly, such a jurisprudence ignores the ubiquity of dependency, both vertically across a life-span, and horizontally, across a population.
Maybe this is an "implicit assumpton" and maybe it isn't. Certainly no moral theorist of whom I am aware beliefs that humans should have the power to determine whether they are healthy or alive--that kind of "right to health and life" would be just plain silly. From a deontological perspective, the question is what sorts of interference with health and life are wrongful or imperssible. I would have thought that if one were to claim that "a jurisprudence ignores the upiquity of dependency" that one would offer evidence for that claim that the obvious fact of dependency was truly ignored. No deontologist of whom I am aware has committed that mistake in any writings with which I am familiar. It seems implausible to attribute such a mistake to judges or legal scholars as well.
Perhaps the article is making some other claim altogether--but what is it? Of course, the author of this paper is not alone in making very strong and controversial assumptions in moral theory without argument and without any discussion of the relevant literature. A variety of legal scholars whose primary orientation is towards the social sciences--econonomics, sociology, or political science (in its rational choice & empirical variants) make similar assumptions. This particular paper, however, is arguing against a position in constitutional theory, but fails to consider the ways that the position might be defended. So it is difficult to view the narrow perspective as simply "working within the paradign."

Koch on Judicial Review of Administrative Action Charles Koch (College of William and Mary School of Law) has posted FCC v. WNCN Listeners Guild: An Old Fashioned Remedy for What Ails Current Judicial Review Law on SSRN. Here is the abstract:
    A 1981 dialogue among D. C. Circuit and the Supreme Court jurists, several of the most influential in the history of administrative law, provides valuable guidance for today’s floundering judicial review law. The case, FCC v. WNCN, involved administrative authority at the dawn of the major policy shift to deregulation. The FCC had determined to rely on the market to make programming decisions but the D.C. Circuit concluded that the Act compelled regulation. The Supreme Court held that the agency acted within its policymaking powers and hence the appellate court arrogated authority. Judge McGowan, in the D.C. Circuit’s en banc opinion, took pains to distinguish the judiciary’s authority over statutory interpretation from its authority over policymaking and the final resolution pivoted on the application of this distinction. Particularly noteworthy was Judge McGowan’s warning: “Although the distinction between law and policy is never clearcut, it is nonetheless a touchstone of the proper relation between court and agency that we ignore at our peril.” This is the voice of the products of administrative law’s formative years. They worried about the proper allocation of authority between the courts and the legislature, and the courts and the legislature’s agents. They worried about this because they were a generation who still had faith in democracy. Intuitively at least, they understood that conceptualizing interpretation as just policymaking by another name threatens fundamental principles. In the end then, this article explores the extent to which this “peril” has in fact manifest itself in current review law.

Zittrain on Online Gatekeeping Jonathan Zittrain (University of Oxford Faculty of Law) has posted A History of Online Gatekeeping (Harvard Journal of Law and Technology, Vol. 19, No. 2, p. 253, 2006) on SSRN. Here is the abstract:
    The brief but intense history of American judicial and legislative confrontation with problems caused by the online world has demonstrated a certain wisdom: a reluctance to intervene in ways that dramatically alter online architectures; a solicitude for the collateral damage that interventions might wreak upon innocent activity; and, in the balance, a refusal to allow unambiguously damaging activities to remain unchecked if there is a way to curtail them. The ability to regulate lightly while still curtailing the worst online harms that might arise has sprung from the presence of gatekeepers. These are intermediaries of various kinds - generally those who carry, host, or index others' content - whose natural business models and corresponding technology architectures have permitted regulators to conscript them to eliminate access to objectionable material or to identify wrongdoers in many instances. The bulk of this Article puts together the pieces of that history most relevant to an understanding of the law's historical forbearance, describing a trajectory of gatekeeping beginning with defamation and continuing to copyright infringement, including shifts in technology toward peer-topeer networks, that has so far failed to provoke a significant regulatory intrusion. I argue that the U.S. Supreme Court's Grokster decision upholds this tradition of light-touch regulation that has allowed the Internet to thrive. The decision thus is not a landmark so much as a milestone, ratifying a continuing détente between those who build on the Internet and those in a position to regulate the builders. Grokster may have achieved such a fit with its ancestors by avoiding a set of now-pressing issues about gatekeepers. This avoidance is revealed by looking at Grokster's outcome: a loss for Grokster Ltd. that has no practical impact on the distribution and use of the sort of PC software that got Grokster Ltd., in trouble. The most recent peer-to-peer technologies eliminate a layer of intermediation from the networks they create; there are often no longer central websites or services that can be blamed, and then shut down or modified, to dampen the objectionable activities that they enable. Even decentralized Internet service providers may prove unable to intercede much as new overlay networks cloak users' network identities in addition to their personal ones. The loss of these natural points of control will cause those with challenged interests to foreground a new and less palatable set of intermediaries: software authors. These authors may be asked to write their software in such a way that it can be recalled or modified after it has been obtained by a user and then put to an undesirable purpose. They may even be asked to program their software to disable the installed software of others. Control over software - and the ability of PC users to run it - rather than control over the network, will be a future battleground for Internet regulation, a battleground primed by an independently-motivated movement by consumers away from open, generative PCs and toward more highly regulable endpoint platforms.
Highly recommended!

Eastman on the General Welfare Clause John C. Eastman (Chapman University School of Law) has posted Restoring the General to the General Welfare Clause (Chapman Law Review, Vol. 4, p. 63, 2001) on SSRN. Here is the abstract:
    This article examines the original understanding of the Constitution's Spending Clause (giving Congress the power to tax for the common defense and general welfare) and the competing interpretations of it offered by Alexander Hamilton, on the one hand, and James Madison and Thomas Jefferson, on the other. Madison contended that the Clause's reference to the general welfare was just short-hand for the powers granted elsewhere in Article I, Section 8 of the Constitution, while Hamilton viewed the clause as a stand-alone grant of power. Even Hamilton, though, believed that the power had limits - spending had to be for the general, or national, welfare and not for the welfare of a single state or locale. The article then traces the historical disputes about the constitutionality of internal improvements, from the watershed election of 1800, through presidential veto messages all the way to the eve of the civil war, and finally to the Supreme Court's New Deal-era decision in United States v. Butler, concluding that the blank check interpretation given to the clause since Butler simply cannot be squared with the original understanding of either Hamilton or Madison.

Dudziak on the Legal Language of Law Mary L. Dudziak (University of Southern California Law School) has posted Making Law/Making War in a World on Fire on SSRN. Here is the abstract:
    It is often said that “in times of war, law is silent,” but this essay argues that the experience of the twentieth century provides a sharp contrast to this old saying. It is not just that law was not silent during warfare, but that law provided a language within which war could be seen. War is not a natural category outside the law, but is in part produced by it. Across decades of conflict, law was a marker that defined for the nation some of those times when conflict would be contemplated as a “war,” and helped cabin other uses of force as “peacekeeping,” or other non-“war” actions. The laws of war, by identifying forms of warfare that crossed the humanitarian line, also helped carve out forms of warfare that were right and noble. It was in the realm of international law that law was turned to with utopian hopes more than once during the century, first to outlaw war itself, and then the more modest, but still ill-fated quest to create a world body that would broker disputes between nations and avoid the inevitability of war.

de Londras on Queer Rights & the European Conventions Fiona de Londras (Griffith College) has posted Queer Rights and the European Convention: Understanding the Past and Shaping the Future on SSRN. Here is the abstract:
    The press is awash with stories of constitutional amendments to ban gay marriage, civil partnerships and renegade mayors handing out marriage licences. The right to marry has become a major focus of some elements of the queer rights movement and the law plays a central part in that campaign. In Ireland this campaign must concern itself not only with Irish law but also with international law, and particularly regional human rights law i.e. the European Convention on Human Rights. In this paper I will outline how the rights to privacy, respect for family life and marriage have developed in the Convention particularly in relation to LGBT rights and, using the patterns identifiable from that body of case law, attempt to predict what may happen over the next three or four years in this matter from a European and Irish perspective.

Sunday, June 04, 2006
Legal Theory Calendar
    Monday, June 5
      Aristotelian Society, London: Modern Moral Philosophy (Again), Candace Vogler (Room N336, Senate House, North Block)
    Thursday, June 8
      Oxford Jurisprudence Discussion Group: Grégoire Webber, The Cult of Constitutional Rights Scholarship: A Critique of Balancing and Proportionality
      Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Dr. Alison Young, ‘Sovereignty and the Human Rights Act’
      University of Arizona Law: Paul Bennett, Law Schools and Lying: Should we be teaching our students not to lie or to lie better?
      Florida State Law: Lesley Wexler, Florida State University College of Law

Legal Theory Lexicon: Consent
    Introduction Most law students begin realize that consent is a powerful legal and moral concept early in the first year of law school. A physical blow to the person is a battery—unless the blow was landed in a boxing match, in which case consent turns the battery into something that is legally permissible and not actionable, even if it results in serious harm. Intercourse without consent is the very serious crime of rape; intercourse with consent is quite something else.
    The basic legal structure is easy to grasp. But what is consent? Why does it have the legal and moral force that it does? When is it valid and when is it invalid?
    This entry in the Legal Theory Lexicon is about the idea of consent in legal contexts involving interpersonal (but not political) relationships. The entry will explore what consent is and why consent is important, both legally and morally. Our investigation will also explore the conditions under which consent might be said to be “invalid,” e.g. in cases where consent was obtained through deception, coercision, or in which the consenting person lacked capacity to give consent. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
    The Ontology of Consent What is consent? We all know about paradigm cases of consent and its absence. Consent is clearly present (ceteris paribus) when someone says “I consent” and really means it. Consent is absent when someone says, “I object” and really means it. But the ability to distinguish clear cases of consent and its absence is not sufficinet for a theory of consent.
    In general, there are two families of theories about the nature of consent. One theory is that consent is a mental state—either an affective state such as desire or a volitional state such as choice. The second theory is that consent is a performative—a speech act in which one person agrees to something by communicating with another person (or persons). Each of these two approaches to consent requires some additional explanation.
      Consent as a Mental State The first possibility is that consent is a mental state. But what kind of mental state? Is a consent a willing, a wish, a desire, a choice, a preference, or something else? We can investigate two possibilities:
        Consent as an Affective Mental State One possibility is that when Alice consents to be kissed by Ben, her consent consists in a certain attitude towards the kiss. For example, if Alice wants (or desires) Ben to Kiss her, then we might be tempted to say that Alice has consented to the Kiss. Another candidate for the relevant affective mental state might be preference. We might say that Alice consents to Ben’s kiss if Alice prefers Ben’s kissing her to the alternative.
        Consent as a Volitional Mental State There is another possibility. It might be that consent is not attitude but a decision, choice, or willing. Thus, we might say that Alice consents to Ben’s kiss if Alice had chosen that Ben kiss her.
        Affective mental states like desires or preferences are not identical to volitional mental states like choosings or decisions. To want something is different than to having chosen to do it. Of course, there may be a close relationship between affective and volitional states. For example, you might believe that when you have an all-things-considered desire to be kissed, then the choice—the choosing to be kissed—follows more or less automatically. These are deep waters that we can elide for the purposes of this bare-boned introduction to the idea of consent.
      Consent as a Performative Most American jurisdictions define legal consent as a mental state, but it is not clear that our ordinary language conception of consent can be reduced to a mental state. Consent is both a noun and an intransitive verb. Thus, we say things like, “I consent” or “He consented to having his name put forward in nomination.” When used in this way consent seems to be some kind of action, accomplished through communication.
      Consent could be a performative--a communicative act in which the speaker communicates permission for or agreement to a course of action.
    So which is it? Is consent a mental state or a communicative action? This is not the sort of question that can be resolved by a Legal Theory Lexicon entry. My opinion is that the performative theory best captures the ordinary language conception of consent. One reason I think so is that the idea of secret consent—which would be a perfectly alright if consent is a mental state—doesn’t seem to comport with our usual way of talking about consent. “I consented to the operation, but I didn’t tell anyone”—sounds quite odd to my ear. The law goes both ways, however, and most jurisdictions use a mental state conception of consent for the purposes of defining “legal consent.”
    The Moral and Legal Force of Consent Assuming we knew what consent is, we can ask the further question, “What legal and moral effect does consent have and why?
      The Moral and Legal Significance of Consent Sometimes it is said that consent works moral magic. What does that mean? The idea is that consent has a tranformative moral power: consent can tranform a wrongful action into a rightful action. Batteries are both morally wrong and and subject to legal sanctions (both criminal and civil), but consent somehow drains the punch of its moral and legal offense. Taking my property with the intent of permanently depriving me of use and enjoyment is theft, but taking my property with consent is simply accepting a gift.
      Why Does Consent Have Moral and Legal Force Once we recognize that consent does have some kind of transformative moral and legal force, the next question we might ask is why? There are lots of way to approach the question why consent has moral force. For example, we might approach the question from the perspectives of the major families of moral theories. Let’s give that a whirl.
        Autonomy and Consent Some moral theories make “autonomy” a central moral idea. Of course, autonomy isn’t easy to describe—especially in a sentence or so. We might say that the core idea of autonomy is self-direction or self control. An autonomous person is one who directs her own life, and not someone whose life is controlled by others. Of course, we can’t all do whatever we would like without running the risk of interfering with each other. Hence, from the idea of autonomy, we might derive the idea of moral rights and duties that create for each individual a sphere of autonomous action, in which each individual can direct her own life without interfering with the like freedom of others to do the same. The moral force of consent comes naturally if one accepts autonomy as a central moral value. Consent allows others to enter one’s sphere of autonomy. So long a consent is freely given, consented-to rights violations seem perfectly consistent with the idea that rights protect a sphere of individual choice.
        Utility and Consent Can utilitarians account for the moral force of consent? Of course, for a utilitarian, consent really can’t be said to be “moral magic.” For utilitarians, the bottom line question is whether a particular state of affairs involves greater utility than the alternatives. So, on the surface, it might seem like consent is not, per se, morally relevant. Consent is just a fact; only good and bad consequences are morally significant.
        But it is more complicated than that. There are many possible forms of utilitarianism, and one dimension of variation concerns the various conceptions of utility. One important form of utilitarianism holds that there utility consists in the satisfaction of preferences. Suppose that one also believed that consent was the mental state of preferring the consented-to action to the alternatives. If no third parties were affected (and assuming that consent was freely given on the basis of adequate information), then the consented-to activity would maximize utility. So for at least some utilitarains, consent would be presumptive evidence that the consented-to action would maximize utility and hence be the morally best action.
        Virtue and Consent Consent will also be relevant to aretaic (or virtue-based) moral theories. One of the virtues is justice, and humans with this virtue will not violate the rights of others without their consent. Virtue ethics differs from deontological and utilitarian theories in part because virtue ethics denies that there is any decision procedure for ethics. That is, a virtue ethicist is unlikely to believe that consent can work “moral magic,” but instead is likely to believe that the moral salience of consent is contextual—depending on the particular circumstances of the case. Virtue ethics is also likely to ask the question whether the person given the consent is a virtuous agent. Humans without the virtues are likely to give consent when they shouldn’t—when, for examploe, the consented-to action might actually cause unjustified harm to the fortunes or capacities of the consenting agent. In such circumstances, virtue ethics might deny that consent works moral magic. A virtuous agent might regard herself as obligated not to take advantage of consent—despite the fact that the consent was freely given by an agent who meets the legal standard of competence in circumstances without coercion or deception.
    Valid and Invalid Consent We have one more important topic to consider. Consent may be invalid. Let’s explore three kinds of reasons for concluding that consent is invalid, and hence that consent does not transform the legal or moral situation: (1) deception, (2) coercion, and (3) incapacity.
      Deception Consent obtained by deception may be invalid, either morally or legally or both. For example, if Alice consents to Ben’s kiss, because Ben tells Alice that he likes her very much, but Ben in fact does not like Alice at all, then Alice’s consent may not be morally valid. Because Ben obtained Alice’s consent by deception, Ben is not morally authorized to kiss Alice. In this case, however, the law would not consider Alice’s consent to be legally invalid. Although Ben may be morally wrong if he kisses Alice, he will not have committeed the crime of sexual assault or the tort of battery. Legally, this kind of deception is not sufficient to invalidate Alice’s consent.
      Outright fraud—intentionally making false statements about something materially relevant to the decision at hand—is the most obvious form of deception. But deception may involve nondisclosue as well as lying. If Ben fails to disclose to Alice that Ben is married, then Alice’s consent may not be morally transformative—although once again, the law will still treat Alice’s consent as legally valid.
      Coercion Consent may also be invalid because it is coerced. For example, if Alice consents to Ben’s kiss because Ben has threatened to harm her if she does, then her consent is invalid. And this is true, both morally and legally. Because consent was coerced, Ben should not kiss Alice and if he does, he will have acted tortiously and perhaps criminally as well.
      One problem with coercion is distinguishing threats from offerss and warnings. Consent is not invalidated because it is induced by an offer or warning, but it will be invalidated if induced by a threat. How do we differentiate threats from offers and warnings. One strategy is to specify a baseline of legal and/or moral entitlement. We call a communication promising an action in exhange for consent a threat, if the action would move the party below the baseline of entitlements. We call a communication promising an action in exchange for consent, if the action would move the consenting party above the baseline of moral and/or legal entitlements. So if Ben promises Alice that he will let her choose the movie in exchange for a kiss, that is an offer. If he promises to force Alice to watch a movie she doesn’t like if she doesn’t consent to a kiss, that is a threat.
      Warnings are neither offers nor threats. Warnings predict consequences outside the control of the party seeking consent. If Ben predicts to Alice that she will feel silly if she doesn’t consent to a kiss, then he has warned her of a consequence, but he has neither made a threat nor an offer.
      Incapacity Consent requires capacity. For example, children cannot consent to sexual relations as a matter of law—hence, consent is no defence to a charge of statutory rape. On the other hand, children can consent to lots of things, including rough play such as wrestling. Other examples of incapacity include mental illness, profound developmental disability, or severe intoxication. If Ben consents to Alice’s taking Ben’s new Mini Cooper on a two-week road trip while Ben is completely blotto (and Alice knows this), then his consent may be invalid and hence Ben may be legally entitled to demand that Alice return his car.
    Conclusion Consent is one of those ideas that cuts across courses and theoretical approaches. We’ve barely scratched the surface of consent, but I hope that this post has provided a very basic introduction to some of the key concepts.

Saturday, June 03, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends A Theory of Property by Stephen R. Munzer. Here are a few blurbs:
    "Stephen Munzer has achieved something I had thought impossible, an encyclopedic treatment of the theory of property rights that does justice to almost all the conceptual, legal, political, and social issues at stake...A Theory of Property will be of the greatest interest and value to philosophers, lawyers, political theorists, and economists alike. Its even handed and scrupulous treatment of competing conceptions of the nature and justification of property rights will make the book useful and accessible to readers of all political and intellectual persuasions. It is an object lesson in how to practise intellectual and ethical pluralism without the least sacrifice of rigour and lucidity." Alan Ryan, Princeton University "Steeped in the traditions of both Anglo-American and Continental philosophy and armed with the knowledge of a property law expert, Munzer moves easily between discussions of thinkers such as Rawls, Marx, and Hegel and concrete discussions of property law roaming over everything from gifts to zoning; all this, with a passion for clarity and a compelling dialogue about property must be responsive to its psychological, cultural, and normative dimensions." Steven Shiffrin, Cornell University "...what is most impressive about this book is the way he deals with...the discussion of justificatory argument. Recent books on property have either had to content themselves with a historical account of the main positions, or they have had to focus on one particular type of justification. Munzer's book, by contrast, does it all....These chapters on justification are then followed by four on applications which combine Munzer's skills as jurist and philosopher; there are chapters on corporations and business, taxes and transfers, and a couple on takings and constitutional protections. Though all of this makes for a long read, the book is clearly written and well organized. In its sheer scope and in the author's ability to analyze and evaluate the most intricate lines of argument, it is going to be a godsend for those of us who teach and write about property issues in law, ethics, and political theory...." Jeremy Waldron, Ethics "...A Theory of Property should be considered both by philosophers and economists as a remarkably useful and comprehensive discussion of the question of property." Maurice Lagueux, Economics and Philosophy "It offers a massive yet easily digestible helping of analyses of conceptual and empirical issues that interweave concerns about property. Munzer, an academic lawyer, displays easy facility with philosophical and economic discussions as well as legal concerns. As noted previously, his expositions and critiques are admirably clear and incisive, and Theory of Property's discussions are uniformly fair-minded. I am unaware of any other single work that sheds so much light on so many areas of the theory of property....Theory of Property is an invaluable point of departure for philosophers, lawyers, and social scientists who wish to contribute to the normative theory of property." Loren E. Lomasky, The Review of Politics
Muzner's book is a wonderfully clear and erudite introduction to property theory. It belongs in the library of everyone with a deep interest in the theory of private law.

Download of the Week The Download of the Week is The Virtue of Law-Abidance presented on Thursday at the Oxford Jurisprudence Discussion Group by William Edmundson. Here's a taste from introduction of the paper:
    The last half century has seen a steady erosion of confidence in the defensibility of a duty to obey the law–even a qualified, pro tanto duty to obey the laws of a just or nearly just state (Wasserstrom 1961; Simmons 1979). Over roughly the same period, there has been increasing interest in virtue ethics as an alternative to the dominant consequentialist and deontological approaches to normative ethics (Anscombe 1958; McDowell 1979). Curiously, these two tendencies have so far only just barely linked up. There has been discussion of the question whether patriotism should be considered a virtue, a vice, or an ambiguous or neutral trait (MacIntyre 1984; Nussbaum 2002); but being patriotic and being subject to a duty to obey the law are quite different things. There has also been some abstract discussion about the virtuous person’s relation to authority and justice in general (Swanton 2001, 2003). But, following Leslie Green’s (1988, 261-63) dismissal of a virtue of obedience, there has been little virtue-orientated discussion having specific reference to the kinds of difficulties that have motivated the ascendant skepticism about political obligation.1 This silence has persisted despite repeated calls for renewed work on “virtue politics” (Crisp and Slote 1997; Hursthouse 1999).
Download it while its hot!

Friday, June 02, 2006
Newton on International Criminal Law & the War on Terrorism Michael A. Newton (Vanderbilt University Law School) has posted International Criminal Law Aspects of the War Against Terrorism (U.S. Naval War College International Law Studies, Vol. 79, p. 323, 2003) on SSRN. Here is the abstract:
    The debates about forums and processes for prosecuting those accused of terrorist acts have resonated across the globe since September 11, 2001. Discussion is likely to intensify in this regard in preparation for the International Criminal Court Review Conference in 2009. The proper disposition of criminal cases against terrorists is linked to the deeper disputes regarding the applicability of the established frameworks for regulating conflicts and the status of those who have no lawful right to wage war, yet choose to conduct hostilities against sovereign states. This article assesses the established frameworks for addressing transnational terrorist acts in which the international community has negotiated a web of occasionally overlapping multilateral conventions addressing specific categories of criminal conduct. This essay superimposes the existing model against those made in favor of a newly created supranational judicial forum. Because the problem of transnational terrorism does not raise any of the problems that have been previously addressed by the establishment of an internationalized process, such a supranational forum is unnecessary and could actually undermine the pursuit of justice. This essay concludes that the voluntary efforts of sovereign states to implement and enforce international norms would not be materially enhanced by the creation of a new superstructure of supranational justice designed to address terrorist acts.

Fischer on Insufficient Causes David A. Fischer (University of Missouri at Columbia - School of Law) has posted Insufficient Causes on SSRN. Here is the abstract:
    This article analyzes a difficult causation question. If a force is not independently sufficient to bring about an injury, under what circumstances should a court find the force to be a cause of the injury? The question has practical importance. It frequently arises in litigation involving toxic torts and products liability failure to warn. The article includes a critique of the NESS test of causation as it pertains to this issue. That test is rapidly emerging as an important supplem This article analyzes a difficult causation question. If a force is not independently sufficient to bring about an injury, under what circumstances should a court find the force to be a cause of the injury? The question has practical importance. It frequently arises in litigation involving toxic torts and products liability failure to warn. The article includes a critique of the NESS test of causation as it pertains to this issue. That test is rapidly emerging as an important supplement to the "but for" test of causation. Much of the focus of twenty-first century causation scholarship will explore the strengths and weaknesses of the NESS test. A key weakness of the NESS test is its inability adequately to identify when one potential cause preempts another. This article explores this weakness of the NESS test in the context of insufficient causes, and offers important new insights with respect to the limitations of the NESS test. The article also presents the results of an empirical study casting doubt on the claim that the NESS test produces results that are consistent with human intuition about causationent to the “but for” test of causation. Much of the focus of twenty-first century causation scholarship will explore the strengths and weaknesses of the NESS test. A key weakness of the NESS test is its inability adequately to identify when one potential cause preempts another. This article explores this weakness of the NESS test in the context of insufficient causes, and offers important new insights with respect to the limitations of the NESS test. The article also presents the results of an empirical study casting doubt on the claim that the NESS test produces results that are consistent with human intuition about causation.

Eastman on Free Press & Classified Secrets John C. Eastman (Chapman University School of Law) has posted Does the First Amendment’s Freedom of the Press Clause Place the Institutional Media Above the Law of Classified Secrets? on SSRN. Here is the abstract:
    Testimony before the U.S. House of Representatives Permanent Select Committee on Intelligence, contending that Section 798 of the Espionage Act, prohibiting the publication of classified information regarding U.S. communications capabilities, can constitutionally be applied to the media, for several reasons: 1) A majority of the Justices in the Pentagon Papers case recognized that prior restraints on publication of highly sensitive, classified information regarding ongoing military and communications operations would be permissible; 2) The prospect of post-publication liability for violating the Espionage Act was also recognized by a majority of the Justices; and 3) the Freedom of Press Clause of the First Amendment is equally applicable to citizens and the the institutional media.

Kartik, Ottaviani, & Squintani on Costly Talk Navin Kartik , Marco Ottaviani and Francesco Squintani (University of California, San Diego , London Business School and University College London) have posted Credulity, Lies, and Costly Talk (Journal of Economic Theory, Forthcoming) on SSRN. Here is the abstract:
    This paper studies a model of strategic communication by an informed and upwardly biased sender to one or more receivers. Applications include situations in which (i) it is costly for the sender to misrepresent information, due to legal, technological, or moral constraints, or (ii)receivers may be credulous and blindly believe the sender's recommendation. In contrast to the predictions obtained in Crawford and Sobel's (1982) benchmark cheap talk model, our model admits a fully separating equilibrium, provided that the state space is unbounded above. The language used in equilibrium is inflated and naive receivers are deceived.

Pillsbury on Learning from Journalism Samuel H. Pillsbury (Loyola Law School (Los Angeles)) has posted Learning from Journalism (Ohio State Journal of Criminal Law, Vol. 3, No. 2, 2006) on SSRN. Here is the abstract:
    Academics in criminal justice frequently lament the state of crime journalism in United States today - and with good reason. Sensational, superficial and often misleading reporting of a few unrepresentative cases distorts the public's view of criminal justice in serious ways. But the opposite is also true: recent years have also seen some superb crime reporting, from which experts as well as the public can learn much. In this review I focus on Steve Bogira's Courtroom 302. The book provides an important reality check on criminal adjudication in a major American city today. It also represents a unique resource for the legal educator. Its exploration of individual and social character as revealed in the legal process in a single criminal courtroom may provide an important counterweight to law school's emphasis on rules and principles in criminal adjudication. The stories told here teach about the experience of law and the relationality of its practice in a way that traditional legal materials cannot.

Conference Announcement: World Poverty & the Duty of Assistance
    World Poverty and the Duty of Assistance Organized by the Forum for European Philosophy in cooperation with Department of Philosophy at the LSE , UNESCO, Social and Human Sciences Section and the Institute of Philosophy at The School of Advanced Study Tuesday 27th June 2006 Old Theatre, Old Building, LSE, WC2A World poverty presents us with pressing moral and political questions about the nature of our duties towards those who are in need. Are the moral claims of the distant needy identical to those of people in need who are within our own personal circle of acquaintance or who belong to ur own political community? How should we apportion the responsibility or meeting the claims of those in need among private individuals, national and global political institutions, and global actors like non-profit organizations and multinational corporations? What is the comparative desirability of different ways of meeting the claims of those in need? The conference 'World Poverty and the Duty of Assistance' aims to bring together moral and political philosophers, social scientists, and development practitioners to discuss these issues, in a way that is accessible to the general public. The proceedings of the conference will be published in The Philosophers' Magazine. Free entry, no registration required. Programme:
      9.30 Welcome 9.40 Prof. Jonathan Glover (KCL) Poverty, Distance and Two Dimensions of Ethics 10.30 Break 11.00 Dr. Linda Yueh (Oxford and LSE) Economic growth and poverty reduction in China Prof. Jan Breman (Amsterdam) Looking at poverty in a village in India for half a century 13.00 Lunch Break 14.00 Prof. Paul Collier (Oxford and formerly of the World Bank) Beyond the role of victim: how we can best help Africa Dr. Ekwow Spio-Garbrah responds (formerly Minister in Ghanaian government) 16.00 Break 16.30 Prof. David Miller (Oxford) Who is responsible for global poverty? Mr. David Mepham responds (Institute for Public Policy Research and formerly of Department for International Development) 18.00 Prof. Leif Wenar (Sheffield) Concluding remarks

Thursday, June 01, 2006
Squire on Antitrust & Supremacy Richard Squire (Fordham Law School) has posted Antitrust and the Supremacy Clause (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
    Courts normally employ preemption analysis to decide whether federal law trumps state regulatory policy. When assessing conflict between state economic regulations and the Sherman Antitrust Act, however, the Supreme Court has eschewed the Supremacy Clause, instead holding that the Act invalidates only those state laws entailing a violation of the Act's conduct-restricting provisions. This violation requirement has proved inapt, as no state law struck down by the Court on antitrust grounds has entailed an actual antitrust violation. In this Article, I argue that principles of preemption provide the only legitimate and coherent criteria for analyzing federal antitrust challenges to state law. I then propose a novel theory of antitrust preemption grounded in these criteria. Under my proposed approach, a state law is preempted only if it seeks to confer monopoly profits on market participants by constricting market output. My approach explains a controversial aspect of current doctrine. The Supreme Court has established that a state law can survive a Sherman Act challenge if public officials actively supervise the law's implementation. I observe that state control over pricing creates public costs that would be unnecessary if a regulatory regime's sole purpose were to confer monopoly profits on market participants. State pricing supervision thus indicates that a regime should be deemed valid because the regime's objectives do not conflict with the purposes of the Sherman Act.

Steinbock on Designation the Dangerous Daniel J. Steinbock (University of Toledo - College of Law) has posted Designating the Dangerous: From Blacklists to Watch Lists (Seattle University Law Review, Forthcoming) on SSRN. Here is the abstract:
    In both the McCarthy and post-9/11 periods the U.S. has turned to administrative measures to label those perceived to be the greatest risks to internal security. The 1950s saw the blacklisting of suspected Communists and the even more extensive disqualification of government employees under the era’s loyalty and security programs. Today, the most widespread efforts to identify “terrorists” and “suspected terrorists” involve the growing phenomenon of terrorist watch lists: compilations of names of known or suspected terrorists that are then checked against particular individuals at specified occasions, triggering certain consequences. This Article examines how the 21st century use of watch lists might or might not resemble the labeling of the McCarthy period, and how the experience of that era might inform an evaluation of present-day designation of the dangerous. After first describing the two labeling mechanisms, it compares them along several axes, finding that watch listing has both repeated some 1950s failings and moved on to develop some new ones of its own. In particular, because they are compiled and used in an opaque and completely one-sided process, watch lists run a substantial risk of incorrectly including many people who pose no threat. Drawing on the experience of the 1950s, the Article assesses three ways to address this problem of false positives in the designation of the dangerous: narrowing the substantive standard for selection; adding procedural protections, particularly some form of adversarial process; and restricting the uses of the resulting list. The Article recommends that watch lists be used only to trigger surveillance, investigation, or other relatively minor impositions. In other words, the watch should be put back in watch lists. With that limitation, watch lists can serve a valuable function of separating the more threatening from the less threatening, thereby increasing the efficiency of terrorist screening and investigation.

Pozen on Charitable Deductions David Pozen (Yale University - Law School) has posted Remapping the Charitable Deduction (Connecticut Law Review, Vol. 39, Forthcoming) on SSRN. Here is the abstract:
    If charity begins at home, scholarship on the charitable deduction has stayed at home. In the voluminous literature on the deduction, few authors have engaged the distinction between charitable contributions that are meant to be used within the United States and charitable contributions that are meant to be used abroad. Yet these two types of contributions are treated very differently in the Code, and raise very different policy issues. As Americans' giving patterns and the U.S. nonprofit sector become increasingly international, the distinction will only become more salient in the years to come. This Article offers the first exploration of how theories of the charitable deduction apply to internationally-targeted donations. In so doing, the Article aims to inspire not only a methodological shift in nonprofit tax scholarship (a strategic remapping), but also a reappraisal of the deduction literature (an analytic remapping): Just as existing theories of the deduction can inform our understanding of foreign charity, considerations of foreign charity can shed light back on the existing theories. I argue that the standard rationales are underdetermined and undertheorized, and propose a new, integrated approach to the charitable deduction. Internationally-targeted donations emerge from the analysis holding a strong claim to the deduction -- often a stronger claim than domestically-targeted donations hold -- on almost every relevant dimension, which calls into question current regulations that privilege domestic giving. Oversight and foreign policy concerns, however, complicate the ideal of geographic neutrality and illuminate the charitable deduction's role as an instrument of global politics. In multiple senses, then, admitting foreign charity into the debate both intensifies and recasts the problematics of deduction theories; but it gives them a chance at coherence.

Archinaco on the Law of the Virtual Horse Jason A. Archinaco (White & Williams, LLP) has posted Virtual Worlds, Real Damages: The Odd Case of American Hero, the Greatest Hose that may have Lived on SSRN. Here is the abstract:
    As the virtual world and the real world begin to collide, what damages exist to the owner of virtual property? What are the consequences from building a pay-to-play virtual world that accepts real world money for virtual items? In discussing the questions articulated above, the author analyzes the example of a virtual horse named American Hero and the real world damages that appear to have occurred by virtue of his death.
What would Frank Easterbook say?

Thursday Calendar
    Oxford Jurisprudence Discussion Group: William Edmundson, The Virtue of Law-Abidance I've read an earlier version of this in draft. Highly recommended!
    Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Professor John Bell, 'Managing the Judiciary and Judicial Independence'
    Florida State University Law: Benjamin J. Priester, Florida State University College of Law

Call for Papers: 9/11's Impact on the Law
    June 1, 2006 CALL PAPERS Symposium Issue: 9/11's Impact on the Law The St. Thomas Law Review invites contributors to their symposium issue on the impacts that the 9/11 attacks have made on the law domestically and/or internationally. This could include topics such as foreign affairs, domestic criminal procedures, immigration, executive power, or other legal issues raised by terrorism. We are flexible on length. Please let me know if you might be interested in contributing. Melissa O'Connor Article Solicitation Editor, 2006-2007