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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Monday, October 31, 2005
Hasen Predicts Check out Rick Hasen's prediction re the outcome of the Alito nomination here. Here's a taste:
    am ready to make my next prediction: Judge Alito will not be confirmed, because Democrats will threaten to use the filibuster for a nominee they will strongly paint as anti-choice. Moderate Republicans, such as Olympia Snowe, won't vote to trigger the nuclear option, and Judge Alito will not get a vote on the floor of the Senate. My level of confidence in this prediction: not high.

Weekend Update On Saturday, the Download of the Week was Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change by Ronen Avraham and the Legal Theory Bookworm recommended America's Constitution : A Biography by Akhil Reed Amar. On Sunday, the Legal Theory Lexicon entry was Deontology and the Legal Theory Calendar previewed this weeks workshops and conferences.

Monday Calendar
    University of Alabama Law: Margaret Howard, Washington and Lee, Bankruptcy Federalism.
    Columbia Legal Theory Workshop: Alon Harel of Hebrew University in Jerusalem, "The Right to Judicial Review"
    London School of Economics: Meghnad Desai (LSE), Measures of Development
    NYU Law: Sam Estreicher & Shmuel Leshem
    UCLA Law: Professor Muneer Ahmad, American University, Washington College of Law, Interpreted Communities: Lawyering Across Language Difference

Call for Papers: Collective Intentionality
    CALL FOR PAPERS (closing date 15 February 2006) CONFERENCE ON COLLECTIVE INTENTIONALITY V 31st August – 2nd September 2006 Helsinki, Finland Keynote Speakers: Michael E. Bratman (Stanford University) Margaret Gilbert (University of Connecticut) Larry May (Washington University) Georg Meggle (University of Leipzig) The research project “The We-Perspective, Social Institutions and Social Change” (located at the Department of Social and Moral Philosophy, the University of Helsinki) and the Philosophical Society of Finland invite papers for the 5th International Conference on Collective Intentionality. Part of the conference will be devoted to the special theme of collective responsibility, but papers on any aspect of the theory of collective intentionality are most welcome to the conference. Although the theory of collective intentionality has for the most part been a philosophical affair, also social scientists, psychologists, cognitive scientists and computer scientists are strongly encouraged to submit papers to the conference. Please see the conference website for more information both on the special theme and on the different areas of research the conference covers. Submission should include an extended abstract (1500-2000 words) outlining the argument of the paper and a separate title page listing the author’s name, address, phone number, and e-mail address. There should be no identifying information in the body of the abstract. Reviewing will be blind and carried out in co-operation with the international scientific committee formed to support the collective intentionality conferences. The material (abstract, title page) should be sent in as an attachment to an e-mail (preferably in PDF, MS Word, RTF, or PDF format) to the following e-mail address: The closing date for submissions is Wednesday 15th February 2006. Notification of accepted papers will be sent by 15th April 2006. Full papers (presentation time strictly no more than 30 minutes) are expected by 15th June 2006. This is to ensure that the papers can be made available at the conference website in advance of the conference. The conference is open to all researchers and scholars. However, all participants are asked to register by sending an email to by 15th May 2006. A conference fee (amount to be confirmed) will be payable at the conference. For more information, please consult the conference website at or email collint-

Conference Announcement: Comparative Hate Speech Regulation at Cardozo
    A Comparative Examination of Hate Speech Protection Cardozo School of Law November 6 &7, 2005 Hardly a day goes by without another report of a legal controversy somewhere in the world regarding the regulation of hate speech. Three French writers and Le Monde are ordered to pay one Euro each to Attorneys Without Borders for defaming Jews in an op-ed article. An Englishman is prosecuted for posting a sign saying “Islam out of Britain”; his conviction is upheld by the European Court of Human Rights. An Australian preacher is found to have violated the Racial and Religious Tolerance Act as a result of statements made during a seminar on Islam and the future of Australia. A Canadian court concludes that holocaust denial is not a form of legally proscribed hate speech. A Pentecostal pastor is found guilty of violating Sweden’s hate-speech law with a sermon that labeled homosexuality “a deep cancerous tumor” and equated it with pedophilia; a court of appeals overturns the conviction. The Council of Europe approves an amendment to a cybercrime treaty that would make it illegal to distribute or publish anything online that “advocates, promotes or incites hatred (or) discrimination”; both the Bush Administration and the American Civil Liberties Union immediately voice their opposition. The problem is not only topical, it is one that is approached in quite disparate ways by different jurisdictions. In the United States, courts are generally hostile to regulation of hate speech, applying the First Amendment with vigor and assuming that the solution to the harms hate speech causes is not suppression but more speech. In most of the rest of the world, in contrast, “reasonable” regulation of hate speech is accepted as both important and supportive of democratic values. The goal of this international conference is to better understand the regulation of hate speech in a comparative perspective. By drawing participants from around the world to consider the fundamental issues of the protection or regulation of hate speech, the hope is that insights can be achieved by considering the divergent approaches of different jurisdictions that are unavailable when focusing on a single system or tradition. For more information, see SCHEDULE Sunday, November 6, 2005 3:00 – 3:30 Registration, Coffee 3:30 – 3:45 Opening Remarks, Michael Herz, Cardozo School of Law 3:45 – 5:30 Panel I - Overview: The Jurisprudence and Nature of Hate Speech Regulation Ed Baker, University of Pennsylvania Law School Alon Harel, Hebrew University of Jerusalem Fred Schauer, Kennedy School of Government, Harvard University Wayne Sumner, University of Toronto 6:00 – 8:00 Dinner for Panelists and Conference Fellows Monday, November 7, 2005 9:15 – 9:45 Registration, Coffee 9:45 – 10:00 Hate Speech and Media Freedom Miklos Haraszti, Representative on Freedom of the Media, Organization for Security and Co-operation in Europe 10:00 – 12:00 Panel II - Hate Speech Dichotomies: liberty/equality, speech/conduct, suppression/counterspeech Katharine Gelber, University of New South Wales Peter Molnar, Central European University Russell Robinson, UCLA Law School Bernhard Schlink, Humboldt University 12:00 – 1:00 Lunch 1:15 – 2:00 Keynote Address by Bhikhu Parekh Lord Parekh, Member of the House of Lords, and Professor of Political Philosophy, University of Westminster, will speak on “Is There a Case for Limiting Hate Speech?” 2:15 – 4:00 Panel III - Comparative Inquiries Thomas Hochmann, University of Paris I – Sorbonne Morris Lipson, Open Society Foundation Yared Legesse Mengistu, Central European University Amnon Reichman, University of Haifa Julie Chi-hye Suk, Cardozo School of Law 4:00 – 4:15 Coffee 4:15 – 5:45 Roundtable Discussion Kathleen Mahoney, University of Calgary Tarlach McGonagle, University of Amsterdam Otto Pfersmann, University of Paris I – Sorbonne Andras Sajo, Central European University Mark Tushnet, Georgetown University Law Center James Whitman, Yale Law School David Rudenstine, Cardozo School of Law (discussion leader)

Alito President Bush will nominate Samuel Alito to replace Sandra Day O'Connor as Associate Justice of the Supreme Court of the United States. Some links:The official announcement will be at 8:00 a.m. Eastern Standard Time.

Sunday, October 30, 2005
Legal Theory Calendar
    Monday, October 31
      University of Alabama Law: Margaret Howard, Washington and Lee, Bankruptcy Federalism.
      Columbia Legal Theory Workshop: Alon Harel of Hebrew University in Jerusalem, "The Right to Judicial Review"
      London School of Economics: Meghnad Desai (LSE), Measures of Development
      NYU Law: Sam Estreicher & Shmuel Leshem
      UCLA Law: Professor Muneer Ahmad, American University, Washington College of Law, Interpreted Communities: Lawyering Across Language Difference
    Tuesday, November 1
      Georgetown Law: Jonathan Marks, "9/11 + 3/11 + 7/7 = ?: What Counts in Counterterrorism"
      Lewis & Clark Law: Susan Mandiberg, Why the Federal Sentencing Guidelines Were Doomed to Failure.
      Oxford Intellectual Property Research Centre: Dr Greenhalgh & Dr Mark Rogers, Trade Marks & Performance in Services
      USC : Direct Democracy on the Brink: The California Special Election. This looks like a fabulous event! Be sure to click through for the lineup of speakers!
    Wednesday, November 2
      University of Chicago, Law & Economics: Eric Talley, USC Law School, Optimal LIability for Terrorism
      University College, London, Mellon Foundation: Andrea Baumeister (Stirling), Diversity and Unity: The Problem with Constitutional Patriotism
      Philosophy of Education, London: Graham Haydon, On the Duty of Educating Respect: a response to Robin Barrow's 'On the Duty of Not Causing Offence'
      Northwestern Law & Economics: Randy Kroszner, Professor of Economics, University of Chicago.
      NYU Legal History: Gerard Magliocca, Associate Professor of Law , Indiana University School of of Law, Indianapolis, "One Turn of the Wheel: Andrew Jackson and the Modern Constitution."
      Oxford Centre for Criminology: Susanne Karstedt, Al Quaida is not a Network but an Ideology: Global Social Movements and Local Terror
      Villanova University Law: Marc Galanter, University of Wisconsin Law School.
    Thursday, November 3
      Oxford Jurisprudence Discussion Group: Richard Ekins, Balliol College, Oxford, Legislative Intent and Group Action.
      University of Michigan Law & Economics: Jesse Fried, UC-Berkeley, The Vulnerability of Common Shareholders in VC-Backed Firms
      University of Minnesota Public Law Workshop: Regina Austin, University of Pennsylvania Law School, Article: Law-Genre Documentaries and Visual Legal Advocacy
      Brooklyn Law School: Kimberly Yuracko, Northwestern University School of Law, Trait Discrimination as Race Discrimination: An Argument About Assimilation
      Boston University Law: David Lyons, "Rights and Recognition"
      Fordham University Law: Rachel Moran, Robert D. & Leslie-Kay Raven Professor of Law, University of California at Berkeley (Bacon-Kilkenny Distinguished Visiting Professor, Fordham University School of Law, Fall 2005), "Of Doubt and Diversity: The Future of Affirmative Action in Higher Education"
      Florida State University Law: Paul Rubin, Emory University School of Law.
      American University, The First Annual Distinguished Lecture on Intellectual Property: Pamela Samuelson, UC Berkeley, “Copyright and Consumer Protection”
      London Institute of Philosophy Conference and Seminar Series: Lizzie Fricker (Oxford), Testimony and Epistemic Authority
      British Institute of Human Rights, London: Michael Drolet (Oxford), Foundations and Anti-Foundations: Quentin Skinner and Jacques Derrida on Power and the State
      NYU Colloquium in Law, Philosophy, and Political Theory: Elizabeth Harman - Reading # 9 - November 3rd, 2005 Elizabeth Harman, The Mistake in "I'll Be Glad I Did It" Reasoning: The Significance of Future Desires & Sacred Mountains and Beloved Fetuses: Can Loving or Worshipping Something Give It Moral Status?
      Loyola Law School, Los Angeles: John T. Parry, Visiting Professor of Law, Lewis & Clark Law School, "The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees"
      Oxford Public International Law Discussion Group: Dr Rosalie Balkin, Diplomatic conference on the revision of the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Treaties
      Oxford Institute of European and Comparative Law: Professor Javier Lete Achirica, The Regulation of Unfair Contract Terms in Spanish Law.
      Oxford Centre for Socio-Legal Studies & Public Interest Law Programme: Daniel Machover and Kate Maynard, The recent attempt by Metropolitan Police to arrest the Israeli General, Doron Almog, at Heathrow Airport for grave breach of the Fourth Geneva Convention 1949, in the Occupied Territories of West Bank and Gaza
      University College London, Faculty of Law: Dr Jorge Fedtke (UCL), ‘Identity Cards and Data Protection: Security Interests and Individual Freedom in Times of Crisis’
      University of Pennsylvania Philosophy: Michele Moody-Adams, Cornell University, What's So Special About Academic Freedom?
      Vanderbilt Law: Christopher Yoo, Vanderbilt Law School, "Copyright and the Theory of Impure Public Goods"
      Yale Legal Theory Workshop: Peyton Young, Johns Hopkins University (Economics), The Power of Norms
    Friday, November 4
      Georgetown Intenational Human Rights Colloquium: Laura Dickinson, University of Connecticut School of Law, "Democracy and Trust"
      University of Mississippi Law: The Americans with Disabilities Act at 15: Past, Present, and Future. Participants include Peter Blanck, Kaaryn Gustafson, Ann Hubbard, Miranda McGowan, Camile Nelson, Michael Stein, and Michael Waterstone.
      Boston College Law: Adam J. Hirsch, William and Catherine VanDercreek Professor of Law, Florida State University College of Law, Visiting Professor of Law, Boston College Law School.
      Thomas Jefferson Law: Patent Law Symposium.
      Ohio State Legal History: Scott D. Gerber, Ohio State, The Origins of an Independent Judiciary: A Study in Early American Constitutional Development, 1606-1787
      UCLA Law: Kirk Stark, UCLA School of Law.
      University of Pennsylvania Philosophy: Michele Moody-Adams, Cornell University, Arguing with the Past.
      University of Texas Law: Samuel Issacharoff, NYU School of Law, "Backdoor Federalization: Grappling with the Risk to the Rest of the Country"
      William Mitchell Law: Juvenile Justice Symposium

Legal Theory Lexicon: Deontology
    Introduction Two weeks ago, the Legal Theory Lexicon explored utilitarianism, an approach to normative moral theory that has had an enormous influence on legal thought. This week, I take up one of utilitarianism's main rivals, deonotology. Deontological moral theories vary in myriad ways, but the focal point for deontology is the concept of duty with its correlative notions of rights and permission. Thus, the distinctive thesis of deontology in general might be formulated as the claim that the rightness of action is a function of whether the action is required, prohibited, or permitted by a moral duty. This is, of course, a simple formulation, and contemporary philosophical theories in the deontological tradition offer more sophisticated and nuanced formulations. This post aims to introduce the central idea of deontological moral theory with special reference to the interests of a first-year law student with an interest in legal theory. Almost every first year course will include deontological ideas. In criminal law, deontology is reflected in the notions that an action cannot be a crime unless it is the violation of a moral duty and in retributive theories of punishment. In torts, deontological theories argue against the economic analysis of tort law and for the idea that tort law is best explained by a theory of corrective justice. In property law, deontological theories emphasize the role of property in creating spheres of autonomy. In contracts, the deontological approach results in the idea that contract is fundamentally explained by the duty to keep a promise. And even in civil procedure, deontological ideas appear in the view that litigants have a right to a "day in court."
    What Rights and Duties Do We Have? The idea that some actions are wrong and therefore forbidden has a strong intuitive appeal. And we can easily generate a list of action types that are at least ceteris paribus wrongful: telling lies, breaking promises, intentionally killing or injuring an innocent person, stealing, and so forth. For some purposes, a simple list of wrongs may be sufficient. But philosophers and legal theorists are unlikely to be satisfied with a list. Why not? Because the content of the list is likely to become controversial. Lying belongs on the list, but what about the failure to make a full disclosure to a stranger in an arms length commercial transaction? Battery is on the list, but should the exception for self-defense be extended to defense of property?
    So what method or principle allows us to identify the list of duties, rights, and permissions that would provide the content of a fully specified deontological moral theory? One possibility is that we would identify the list by appeal to our sense of what is right and wrong. Let's give that sense a fancy name: call it "moral intuition." One possible method for identifying the content of a deontological moral theory would be to consult our moral intuitions about particular cases. But objections to this method are likely to arise immediately. For example, my intuition may not agree with your intuition. What then? Even if I consult only my own intuition, I may come to see that my intuitions about particular cases are not consistent at the level of principle. My intuition makes an exception for lies told to instructors as excuses for turning in late papers, but not for lies told to friends as excuses for extreme lateness.
    Raw moral intuitions might be refined through a technique suggested by the philosopher John Rawls--the method of reflective equilibrium. We might aim to order our raw moral intuitions by positing some general principles that would explain and unify our considered judgments about particular cases. Once we have a set of general principles, it may turn out that some of our considered judgments about particular cases need to be revised. In other cases, a general principle may conflict with a considered judgment about a particular case that we hold very firmly. In such a case, we may wish to modify our general principles. If we work at it, we might eventually reach a point where our revised general principles are in agreement with our revised judgments about particular cases. Rawls call this state "reflective equilibrium." The same procedure might be used collectively to resolve conflicts between the judgments of different individuals; Norman Daniels call this interpersonal use of reflective equilibrium, "wide reflective equilibrium."
    Kant Reflective equilibrium is one way to specify the content of a deontological moral theory. The German philosopher Immanuel Kant provides another. Before I proceed any further, I want to make it clear that what I am about to say does not provide anything close to even a basic introduction to Kant's moral philosophy. That would take a series of several Legal Theory Lexicon posts. Nonetheless, we can get a glimpse of one of Kant's most important ideas, the categorical imperative. Kant believed that duty was the central moral idea, and he recognized the problem of specifying duty. Kant had a particularly deep and interesting solution to that problem which begins with the idea of a good will: "Nothing can possibly be conceived in the world or out of it that can be called good without qualification except a good will." And a good will is a will that aims for the good and not merely for the objects of desire and inclination. If we act on the basis of a hypothetical imperative (if I want X, then I should do Y), we act on the basis of desire and inclination--"heteronomously" in Kant's terminology. In order to aim for the right, we must act on the basis of a categorical imperative, that is, on the basis of a reason or principle that does not include a desire or inclination. (In Kant's terminology, this would be acting "autonomously.") So what would a categorical imperative look like? Kant's answer to this question is stunningly brilliant--one of the most awesome moves in the history of philosophy. Kant suggested that one could act on the basis of a categorical imperative by consulting what he saw as three equivalent formulas:
      The Formula of the Law of Nature: "Act as if the maxim of your action were to become through your will a universal law of nature."
      The Formula of the End Itself: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end."
      The Formula of the Kingdom of Ends: "So act as if you were through your maxims a law-making member of a kingdom of ends."
    Onora O'Neill, the great Kant scholar, has a really wonderful essay called A Simplified Account of Kant's Ethics. If you are still reading this post and you haven't already read O'Neill's piece, download the word file and read it now--believe me it is worth it.
    O'Neill focused on the formula of the end itself, so let me say just a few words about the formula of the law of nature by giving an example. Suppose you are deciding whether to tell a lie to a friend to get out of a lunch date. You first ask yourself, "What is the maxim (or principle) of my action?" Suppose the answer is "Lie when convenient!" Now, you imagine that if you were to lie to your friend the principle upon which you acted would become a universal law of nature--everyone would one lie when it was convenient. Could or would you do this? Arguably not, for two reasons. First, if everyone were to lie whenever it was convenient, human communication might become impossible, because no one could be trusted. The maxim--lie whenever convenient--has a contradiction in conception, because the lie would never be believed in the possible world in which the maxim of your action was a universal law of nature. Second, if one can imagine a world in which everyone lies when convenient, you might not be willing to lie on this occasion if the result of your action was that the maxim--lie whenever convenient--were to become a universal law of nature as a result. You might not want others to lie to you when they thought it was convenient--we can call this a contradiction in the will. Of course, my analysis of this example has been very sketchy and crude, but I hope that I have done enough to give you the general idea.
    Some Objections to Deontology All of the main approaches to moral theory are controversial, and because the debates have been raging for centuries, the arguments are now enormously complex. So I am going to give two very simple objections to deontology, with the warning that the current state of play on these objections is now so complex and ramified that you really must be a specialist to give even a rough summary.
      The Indeterminacy Objection. The first objection is that the content of a deontological moral theory is underdeveloped by the various methods for deriving a set of duties, rights, and permissions. So, for example, the method of reflective equilibrium may help us to order our considered judgments about particular rights, duties, and permissions, but it might be objected that this method is unlikely to settle any of the major disputes about what the duties, rights, and permissions actually are. Different people will arrive at different reflective equlibria. Even a single individual may come to believe that a variety of equilibriums are equally plausible or that her view of the most stable equilibrium is unstable, changing frequently in response to new examples or arguments. Kant's approach is subject to the same objection, with many critics arguing that Kant's method does not produce unique answers to particular questions about duty. Deontological moral theorists might counter that although their methods may not always produce unambiguous answers that will produce universal assent, that this is an unrealistic criterion for an acceptable moral theory. Particular deontological theories may allow the zone of moral disagreement to be narrowed and provide illuminating insights about particular cases.
      The Rigor Objection. The second objection begins with the assumption that deontology does produce determinate answers to particular questions of morality, but argues that the answers are implausible, because they are too demanding or inflexible. Consequentialist critics of deontology argue that absolute rights, duties, and permissions can lead to consequences that would not be morally acceptable. One famous hypothetical, based on Kant's discussion of lying, imagines that you are in Germany before World War II and a Nazi has come to your door and inquired whether you have seen a Jew who has escaped. If there is an absolute moral duty to tell the truth, then you are not permitted to lie in response, but telling a lie may be the only way to save the life of an innocent person. Surely, the consequentialist argues, telling the lie is not only morally permissible, it is morally required. Deontologists can try to escape from examples like these in a variety of ways. For example, the deontologist might simply argue that there is no duty to tell the truth to evil doers who will use the truth for evil purposes. Or the deontologist might argue that this is a case which duties conflicts, and that some higher order principle favors the duty to protect the innocent person from evil over the duty to tell the truth. Or the deontologist might allow that duties can be overridden by consequences in some circumtances. Some deontologists may bite the bullet and argue that one is required to tell the truth, even if the consequences are horrific.
    Conclusion In a sense, the battle between deontology and consequentialism is one of the great battles of contemporary legal theory. Legal theorists argue over deontological and consequentialist theories of contract, tort, property, criminal law, procedure, constitutional law, and many other doctrinal fields. As a law student, you might start to look for deontological arguments in cases and class discussion. Almost every time class discussion turns to the question, "What should the rule be?," you will be able to construct both consequentialist and deontological arguments for and/or against the various possible rules. Getting the hang of normative legal theory is, in large part, a matter of mastering a set of consequenitalist and deontological moves.
    Links Bibliography

Saturday, October 29, 2005
Saturday Calendar

Legal Theory Bookworm The Legal Theory Bookworm recommends America's Constitution : A Biography by Akhil Reed Amar. Here's a review by Scott Turow:
    By granting federal judges lifetime tenure, our Constitution did not merely seek to guarantee the independence of the judiciary but also its stability. Thus the recent twin vacancies on the Supreme Court portend dramatic changes in the personality of an institution not built for hairpin turns. But the uniqueness of the moment has largely been lost to common perception because the political rhetoric surrounding it is so familiar. When President Bush first introduced John G. Roberts Jr., who ultimately became his choice to replace the late William Rehnquist as the 17th chief justice, Bush said he was confident that Roberts "will strictly apply the Constitution" and would "not legislate from the bench." The president chose his phrases carefully: "Strict construction" of the actual words of the Constitution has been political code for some time now. Conservatives have been calling for unrelenting adherence to the sacred founding text since the 1960s in the wake of decisions like Griswold v. Connecticut, which struck down a state ban on contraceptive sales; Justice William O. Douglas, speaking for the court, determined that there was a constitutional right to marital privacy divined because the "specific guarantees of the Bill of Rights have penumbras formed by emanations from those guarantees." (Ironically, during his confirmation hearings, Roberts agreed with the result in Griswold and with the fact that there is a constitutional right of marital privacy.) But leaving aside the shapes found in the shadows, what exactly does the Constitution say? It's a fair bet that many on both sides of the "strict construction" debate don't really know; after all, a recent poll by the American Bar Association indicated that nearly half of all Americans couldn't even identify the three branches of government. Thus Akhil Reed Amar's America's Constitution: A Biography is auspiciously timed. The book's aim -- in the words of Amar, a professor at Yale Law School -- is "introducing the reader both to the legal text (and its consequences) and to the political deeds that gave rise to the text." This volume is nothing less than a word-by-word examination of the controlling phrases in the Constitution, beginning with the preamble and continuing through the 27th and most recent amendment. The result is a book that is elegantly written, thorough but concise, and consistently enlightening. As the subject suggests, however, it is far from light reading. In college, I was taught that the Constitution was essentially a reactionary document, a view that had become standard in the wake of the historian Charles A. Beard's epochal 1913 study, An Economic Interpretation of the Constitution of the United States. Beard had contended that the Declaration of Independence contained a broadly idealistic vision of American democracy premised on John Locke's notion that "all men are created equal." The Constitution, on the other hand, was meant to serve the interests of the wealthy; it subverted democratic ideals, especially with its odious compromise providing that each slave be counted as three-fifths of a person for purposes of determining the population upon which congressional districts would be based. Not so, Amar argues. Beginning with its ringing first words -- "We the People of the United States" -- the Constitution, in his view, embodies a profoundly democratic vision of the nation it summoned into being. He points out that the ratification process for the new Constitution "allowed a uniquely broad class of citizens to vote" for the delegates to the state conventions that approved the document -- often reducing (or, in the case of New York, entirely abandoning) property qualifications for free adult males wanting to vote. While an electorate that excluded more than half the voting-age population is nothing to celebrate by contemporary lights, Amar notes that at the time "all this was breathtakingly novel. In 1787, democratic self-government existed almost nowhere on earth." He buttresses this point repeatedly as he analyzes the Constitution's provisions, emphasizing, for example, Madison's celebration that the Constitution established "no qualification of wealth, of birth, of religious faith, or of civil profession" for election to any federal office, including the presidency. Indeed, Amar posits that the idea of a fundamental equality between citizens was pivotal if the Constitution was to accomplish the strategic aims of the federalists, who wanted to create a durable union with a united defense. They were inspired, in large measure, by a fear that the former colonies were headed the way of Europe, a continent of pocket sovereignties beset by perpetual rivalries and wars. By emphasizing the conviction that power was derived from the people rather than from the states, the Framers found an intellectual foundation for a perpetual union from which no individual state could then withdraw. That vision, however, collided with the reality that the sovereign states had to be persuaded to join. To accomplish that, the Framers adopted the three-fifths rule, which guaranteed that the slaveholding states, which would be outnumbered in the new Senate, could offset that advantage by wielding political authority in the House greater than their actual number of voters. Indeed, in one of his most fascinating asides, Amar argues that the electoral college -- often derided as one more anti-democratic mechanism intended to prevent the people from directly choosing their president -- was in fact an element of this compromise with the South. Direct election of the president, he argues, was impossible in 1787; after all, before the rise of political parties, presidential candidates were virtually unknown outside their home states. The point of the electoral college, which apportioned votes among the states based on their total number of representatives in the House and Senate, was to extend the legislative power that the South had achieved with the three-fifths rule to the executive branch as well. As one expects from the best history, America's Constitution illumines many contemporary debates. One of the book's principal lessons is an unsurprising one: Even careful attention to the actual words of the Constitution can lead to interpretative disputes. For example, as was often evident during the Roberts hearings, many on both sides of the aisle in Congress have been greatly chagrined by a series of Rehnquist court decisions espousing a view that observers have labelled "the New Federalism." These opinions have struck down congressional enactments on the grounds that they do not fall within the powers granted Congress under the "commerce clause" and require that the issues addressed be left to the states. (Article I empowers Congress "To regulate Commerce with foreign Nations, and among the several States. . . . ") One reason these decisions came as such a surprise is that "Commerce" has traditionally been read by the Supreme Court as referring to commercial activity, leaving Congress free to act whenever there is any national economic effect to the conduct it has sought to regulate. But in 2000, in United States v. Morrison, the Rehnquist court struck down a portion of the 1994 Violence Against Women Act that had created a federal right to sue for gender-inspired violence, with the chief justice stating that the commerce clause still requires "a distinction between what is truly national and what is truly local." In these pages, Amar contributes a novel interpretation that might clarify the present debate and even bolster the New Federalism. He notes that " 'commerce' also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life." So read, Congress's power to act would hinge not on the question of whether an activity had a potential economic effect but whether "a given problem genuinely spilled across state or national lines." On the other hand, Amar also emphasizes that contemporary judicial power, in which even the supposedly conservative Rehnquist court freely declared acts of Congress constitutionally out-of-bounds, may itself be a departure from the original text, notwithstanding the mantra-like invocations of "strict construction." The Constitution speaks repeatedly of a "supreme Court" -- with, as Amar points out, a small "s." As envisioned by the framers, the judicial branch was clearly subordinate to the other two. Judges were selected through the combined power of the president and Senate, and the courts' authority to hear appeals was to be exercised "with such Exceptions, and under such Regulations as the Congress shall make." The size of the Supreme Court and the very existence and location of inferior federal courts were purely matters of congressional will. Thus the words of the Constitution give little reason to anticipate that the Supreme Court, for example, would decide a presidential election, as it did in 2000, rather than leaving the matter to Congress. Amar's gloss on the text helps explain a growing cleavage on the right in which congressional conservatives like House Majority Leader Tom DeLay (R-Tex.) have recently criticized even the Rehnquist court for having far overreached its constitutional role. I have only one cavil with this book, and that does not deal with its merits but with the way it is being marketed. Amar's publisher calls this a "general-audience book." If that means that Amar writes with ease and precision and largely avoids the desiccated abstractions of constitutional analysis -- no lay person would want to try to understand the differences between "strict scrutiny" and "medium scrutiny," for example -- it is surely true. But the subtitle "A Biography" suggests that, like recent popular volumes about John Adams, George Washington and Alexander Hamilton, this is another exciting story of America's founding. Amar is a chaired professor at one of America's best law schools, and his book is, at heart, a scholarly work of intellectual history, accompanied by 128 pages of endnotes. It is about ideas and words, not personalities. Even James Wilson, whom Amar promotes as a framer whose significance and wisdom have been overlooked, appears here only as a voice without a body or biography. I expect to be taking Amar's volume off my shelf for years to come as an indispensable reference whenever I want to know more about the actual words that underpin contemporary constitutional debates. But there is no dramatic arc to this book, no story to its history: It simply goes from the front of the Constitution to the back. It is, however, an uncommonly engaging work of scholarship and deserves to be valued as such.

Download of the Week The Download of the Week is Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change by Ronen Avraham. Here is the abstract:
    Pain-and-suffering awards make up approximately fifty percent of total awards, at least in some areas of personal injury cases. It is the subject of almost every tort reform, including the current administration attempts to reform medical malpractice law. Is there a rational way to quantify pain-and-suffering awards? In this paper, written for a special centennial issue of NU law review, I explain some of the suggestions for pricing pain-and-suffering put forward in the literature and preliminary offer a different way to look at the problem. The theoretical approach I adopt in this paper to the pricing of pain-and -uffering is to analyze it from a law and economics standpoint, which also incorporates a limited notion of global fairness. My starting point is the "majority view" which states that efficient tort law requires pain-and-suffering damages to be awarded so tortfeasors will internalize the full social costs of their conduct, including the non-monetary ones. My focus in this paper is the fundamental unresolved issue of how to price such damages. After reviewing various proposals for pricing pain-and-suffering, I argue that all of these proposals are analytically problematic, and undesirable as a matter of policy. I then propose a new way to price pain-and-suffering. Under my proposal, a system of age-adjusted multipliers would be assigned to plaintiffs' medical costs (but not to other economic costs) in order to calculate the pain-and-suffering component. The multipliers would be non-binding, allowing the jury to fairly deviate when justice required. This system solves the problem of unpredictability and, at the same time, approximates optimal deterrence, all at very low administrative costs. It combines the advantages of efficiency and fairness by having a jury determine awards on a case-by-case basis, without the high complexity of assessing pain-and-suffering losses present in other proposals.
Download it while its hot!

Welcome to the Blogosphere . . . to Right Reason, with Roger Kimball, Edward Feser, John Kekes, Roger Scruton, Graeme Hunter, Rob Koons, Francis Beckwith, Chris Tollefsen, and many others.

Friday, October 28, 2005
Friday Calendar
    University of Alabama Law: Fred Zacharias, University of San Diego School of Law, The Images of Lawyers
    University of Chicago Legal Forum: Symposium, Life and Law: Definitions and Decisionmaking. Fred Schauer will be giving the keynote address.
    Georgetown International Human Rights Colloquium: Allison Marston Danner, Vanderbilt University School of Law, "When Courts Make Law: How International Criminal Tribunals Recast the Laws of War"
    William Mitchell Symposium: Special Tactics for a Secret War
      Keynote Speaker: John A. Rizzo, Acting General Counsel, Central Intelligence Agency Panelists: Douglas Jehl, The New York Times; John Norton Moore, Walter L. Brown Professor of Law & Director of the Center for National Security Law, University of Virginia; Neal K. Katyal, Georgetown University Law Center Moderator: A. John Radsan, William Mitchell College of Law
    UCLA Law: Bryant Garth, Southwestern, "Law, Lawyers, and Empire: From Foreign Policy Establishment to Technical Legal Hegemony"
    New. St. John’s University School of Law: Edward J. Imwinkelried, The Alienability of Evidentiary Privileges: Of Property and Evidence, Burden and Benefit, Hearsay and Privilege.

Announcement: Values in Public Life at the Heytrop Institute
    Heythrop Institute for Religion, Ethics & Public Life VALUES IN PUBLIC LIFE SEMINARS Seminar 1: Values in Public Life: their Sources, Meanings, Expressions Date and Time: 1000 – 1700 on 26 November 2005 (registration from 0930) Venue: Brinkman Room, Heythrop College, Kensington Square, London W8 5HQ Programme
      1000 Welcome and Introductions 1015 Dr Timothy Chappell: ‘Understanding Human Goods’ followed by questions and discussion 1130 Coffee/Tea 1145 Dr Margaret Atkins: ‘Making Sense of Common Goods’ followed by questions and discussion 1300 Lunch 1415 Dr Patrick Riordan SJ: ‘Solidarity in Fulfilment – A Vision for Politics?’ followed by questions and discussion 1530 Coffee/Tea 1545 Panel Discussion with the three speakers 1700 Close
    About the speakers: Dr Margaret Atkins was formerly Senior Lecturer in Theology at Trinity and All Saints College, Leeds, and is Senior Research Fellow at Blackfriars, Oxford. Her publications include editions of Cicero: On Duties (co-edited with Miriam Griffin, 1990), Augustine: Selected Political Writings (co-edited with Robert Dodaro 2001) and Thomas Aquinas Disputed Questions on the Virtues (co-edited with T. Williams, 2005). Dr Timothy Chappell is Reader in Philosophy at the University of Dundee. He is the author of The Inescapable Self (2005), Reading Plato’s Theaetetus (2005), Understanding Human Goods (1998), The Plato Reader (1996), and Aristotle and Augustine on Freedom (1995). He has edited the collections Values and Virtues: Aristotelianism in contemporary ethics (2006) and Philosophy of the Environment (1997), and co-edited, with David Oderberg, the collection Human Values. New Essays on Ethics and Natural Law (2004). Dr Patrick Riordan SJ is Associate Director of the Heythrop Institute forReligion, Ethics & Public Life. He teaches political philosophy at Heythrop College, University of London. His main areas of research are religion in public life, citizenship, and the common good. His publications include Philosophical Perspectives on People Power (2001), and A Politics of the Common Good (1996). To book a place, please write, enclosing a cheque for £25.00 (or the discount rate of £60 if you wish to attend all three seminars in this series) to Moyra Tourlamain, Heythrop Institute for Religion, Ethics & Public Life, Heythrop College, Kensington Square, London W8 5HQ.

Request for Proposals: AALS Workshop on Intellectual Property
    Request for Proposals for Paper Presentations and Concurrent Sessions at the AALS 2006 Workshop on Intellectual Property On June 14-16, 2006, the AALS Workshop on Intellectual Property IP in the 21st Century: Policy, Politics, and the Constitution will take place in Vancouver, British Columbia. The Workshop will be part of the AALS Mid-Year Meeting, which also includes the Conference on “New Ideas for Experienced Teachers” and the “Workshop on Criminal Justice Reaching Beyond Its Boundaries: Insights from Other Disciplines and Changing.” By this memorandum, the Planning Committee is requesting proposals for Paper Presentations on intellectual property and competition, and Concurrent Sessions on any topic related to intellectual property. Both requests are described below. I. Paper Presentations on IP and Competition The Planning Committee is soliciting proposals for papers pertaining generally to Intellectual Property and Competition. The Committee takes and encourages a very broad view of the relationship between Intellectual Property and Competition. Papers may deal with topics that consider areas of law traditionally identified as “competition law,” or they may deal with any other way in which competition manifests itself in Intellectual Property. The selected papers will be presented in sessions that will run concurrently following the plenary session on Competition, which will take place on June 15, 2006. The concurrent sessions will run from 10:45 a.m. through 12:00 noon. We are seeking 5 papers and will reserve between 2-3 slots for faculty with less than 7 years experience. Interested faculty should submit a brief (1-3 single spaced page) written description of their proposed paper and a CV. The Planning Committee will select up to five sessions for inclusion in the Conference program by early January 2006. Completed manuscripts of accepted papers will be due by May 15, 2006. These manuscripts will be posted on the AALS website. Authors will also be able to submit an outline or abstract of up to 5 pages for inclusion in the conference program and materials. This outline will be due by April 15 in order to meet deadlines for sending the conference program to print. II. Concurrent Sessions The Planning Committee has reserved a portion of the Conference for sessions proposed and managed by those who are not members of the Committee. These sessions will take place on Friday, June 16, 2006, from 11:45 a.m. through 1 p.m. Sessions may be in any format (e.g. paper presentations, open discussions, panels). Proposals should be from 1-3 single spaced pages and should contain information about the topic, format, and speakers proposed. The Committee is pleased to receive proposals dealing broadly with intellectual property from any perspective. Please submit proposals indicating your name, school, and whether you are submitting for a Paper Presentation or a Concurrent Session. Send the 1-3 page single spaced proposals by e-mail to the AALS care of Gehan Girguis at by November 15, 2005. Any questions about the proposal should be directed to Professor Alfred C. Yen, Chair of the Planning Committee, at Speakers must pay the registration fee for the workshop and will be responsible for their own travel and other expenses.

Conference Announcement: Impartiality and Partiality in Ethics at Reading
    Impartiality and Partiality in Ethics First of Three Annual Conferences organised by the Department of Philosophy at the University of Reading Friday 2nd and Saturday 3rd December 2005 Friday 2nd of December
      1pm Registration and Coffee, Foyer 2pm Prof. Niko Kolodny, University of California at Berkeley, ‘Which Relationships?’ 3.30pm Tea & Coffee, Foyer 3.45pm Prof. John Cottingham, University of Reading, ‘Impartiality and Ethical Formation’ 5.15pm Tea & Coffee, Foyer 5.30pm Prof. Bernard Gert, Dartmouth College, 'Impartiality and Morality’ Saturday 3rd December 9.15am Coffee, Foyer 9.30am Prof. Timothy Mulgan, University of St. Andrews, ‘What should impartialists think about God?’ 11am Tea & Coffee, Foyer 11.15am Dr. Michael Ridge, University of Edinburgh, ‘Fairness and Non-compliance’ 12.45pm Buffet Lunch in The Blue Room, Park House 2pm Prof. Stephen Darwall, University of Michigan, ‘Responsibility Within Relations’ 3.30pm Tea & Coffee
    The last few decades have seen a growing interest in the concepts of impartiality and partiality and their role in ethical theory. From the perspective of virtue ethics and the theory of the good life, it has been argued that favourable treatment for those who stand in some special relationship to oneself (friends, family etc.), and perhaps also for oneself and one’s own projects, is ethically justifiable: certainly permissible and possibly even required. Consequentialist and Kantian approaches, by contrast, have often been concerned to emphasise the idea of impartiality as basic to the moral point of view, and there has been much debate about whether these respective approaches should endeavour to accommodate, or alternatively to resist, the demands of partiality. The problems and tensions inherent in this debate have a long ancestry: for example partialistic elements are prominent in much of Aristotelian ethics, while a strongly impartialist perspective is discernible in some of Plato’s writings; or again, the writings of medieval and early-modern philosophers from Aquinas down to Spinoza and beyond reflect the dual concerns within the Judaeo-Christian moral outlook both for personal affection and commitment on the one hand, and on the other hand for the call for equal concern and impartial treatment for all mankind. The conference will address the question of how far there can be a coherent philosophical framework for reconciling the ethical demands of impartiality and of partiality, and the question of whether the various approaches listed above can be seen to converge, or whether the they turn out to represent ultimately incompatible perspectives. Conference venue: Seminar Room 1, Black Horse House University of Reading Whiteknights Campus Berkshire RG6 6AA UK Please direct enquiries to: Dr. Brian Feltham Department of Philosophy University of Reading Whiteknights Berkshire RG6 6AA UK

Book Announcement: The Judicialization of Politics in Latin American
    The Judicialization of Politics in Latin America by Alan Angell, Line Schjolden, and Rachel Sieder ISBN: 1-4039-7086-6 Binding: hardback Publishing: December, 2005 Pages: 320 Availability: Not Yet Published Publisher: Palgrave Macmillan List Price: $69.95 Reviews
      “This exceptional volume does a splendid job of illuminating the myriad dimensions of the judicialization of politics in Latin America. No phenomenon is more central to understanding recent trends in democratic governance throughout the region. The first-rate authors treat the subject from diverse perspectives, with impressive conceptual sophistication, rigor, and sensitivity to national variations. The result is a thoroughly original and stimulating contribution that fills an important gap in the literature and that will doubtless be of keen interest to academics, policy makers and advocates alike.”--Michael Shifter, Vice President for Policy, Inter-American Dialogue “This book eloquently maps the judicialization of politics in contemporary Latin America and its consequences. It weaves politics, law and society together into a rich and sophisticated analysis of the inter-relationship between judicialization and Latin American democracy in the 1990s and 2000s. Its comparative framework makes a valuable contribution to our understanding of how judicialization enables and constrains democratization and the search for justice. This is an impressive and original work that fills an important gap in the literature.”--David Sugarman, Professor at Law School, Lancaster University, England “This book is essential reading to understand the important new trend of judicial activism in Latin America. Does it strengthen democracy by enhancing individual rights, the rule of law, the propriety of the exercise of power, and electoral fairness? Or as part of a ‘judicialization of politics’, is it the expression of an unwarranted instrumentalization of the judiciary by powerful actors as well as an extension of judicial authority over domains best left to political negotiations in governmental and legislative arenas? Does it, then, undermine rather than contribute to deepening the quality of democracy? In a set of highly nuanced analysis the authors provide evidence for all these assessments.”--J. Samuel Valenzuela, Kellogg Institute
    Book Description
      During the last two decades the judiciary has come to play an increasingly important political role in Latin America. Constitutional courts and supreme courts are more active in counterbalancing executive and legislative power than ever before. At the same time, the lack of effective citizenship rights has prompted ordinary people to press their claims and secure their rights through the courts. This collection of essays analyzes the diverse manifestations of the judicialization of politics in contemporary Latin America, assessing their positive and negative consequences for state-society relations, the rule of law, and democratic governance in the region. With individual chapters exploring Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico, Peru and Venezuela, it advances a comparative framework for thinking about the nature of the judicialization of politics within contemporary Latin American democracies.
    Table of Contents
      Introduction: The Judicialisation of Politics in Latin America--Rachel Sieder, Line Schjolden & Alan Angell * Judicialisation of Politics: The Changing Political Role of the Judiciary in Mexico--Pilar Domingo * Changing Dynamics:The Political Impact of Costa Rica’s Constitutional Court--Bruce M. Wilson * The Judicialisation of Politics in Colombia: The Old and the New--Manuel José Cepeda Espinosa * The Judicialisation of Chilean Politics: The Rights Revolution That Never Was--Javier A. Couso * Judicialisation and Regime Transformation: The Venezuelan Supreme Court--Rogelio Pérez-Perdomo * Petitioning and Creating Rights: Judicialisation in Argentina--Catalina Smulovitz * Community Justice Institutions and Judicialisation: Lessons from Rural Peru--Julio Faundez * Private Conflicts, Public Powers: Domestic Violence in the Courts in Latin America--Fiona Macaulay * Constitutionalism, the expansion of Justice and the Judicialisation of Politics in Brazil--Rogério B. Arantes * The Transnational Dimension of the Judicialisation of Politics in Latin America--Kathryn Sikkink * Afterword--Guillermo O’Donnell
    Author Biography
      Rachel Sieder is Senior Lecturer in Politics at the Institute for the Study of the Americas, School of Advanced Studies, University of London. Sieder has published articles in numerous journals, including Democratization, The Bulletin of Latin American Research, and Citizenship Studies. Her most recent volume (ed.) is Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy (2002). She is editor of the Journal of Latin American Studies. Line Schjolden is currently Assistant Professor of Latin American History and Culture at the University of Bergen, Norway. She was previously Hewlett Postdoctoral Research Fellow in Latin American Law and Politics at the Institute for the Study of the Americas, University of London and the Latin American Centre, St. Antony’s College, University of Oxford. She holds a PhD in History from the University of California, Berkeley. Her research is in the field of legal and labor history in early twentieth century Argentina. Alan Angell was Director of the Latin American Centre, St Antony’s College, Oxford, Lecturer in Latin American Politics, and a Fellow of St Antony's College. He has published Politics and the Labour Movement in Chile (1972); En Busca de la Utopia: La Politica Chilena entre Alessandri y Pinochet (1994); and edited with Dr. Benny Pollack, The Legacy of Dictatorship: Political, Economic and Social Change in Pinochet's Chile (1993). His most recent research was conducted jointly with Rosemary Thorp and Pamela Lowden and published as Decentralising Development: the Political Economy of Institutional Change in Colombia and Chile (OUP 2001).

Thursday, October 27, 2005
Conference Announcement: The Chief Justice & the Institutional Judiciary at Penn
    The University of Pennsylvania Law Review is pleased to present the 2005-2006 Symposium: THE CHIEF JUSTICE AND THE INSTITUTIONAL JUDICIARY Featuring keynote speeches by
      Linda Greenhouse Supreme Court Correspondent, The New York Times Prof. Erwin Chemerinsky Alston & Bird Professor of Law and Professor of Political Science, Duke University Law School
    University of Pennsylvania Law School Levy Conference Center Thursday, November 10 & Friday, November 11, 2005 Full conference program and speaker biographies Click here for details on CLE and to register Schedule:
      CONFERENCE SCHEDULE Thursday, November 10, 2005 9:30 AM - 10:00 AM REGISTRATION & CONTINENTAL BREAKFAST 10:00 AM - 10:30 AM OPENING REMARKS 10:30 AM - 12:00 PM THE CHIEF JUSTICE FROM A HISTORICAL PERSPECTIVE Prof. Frank Goodman, Moderator Dr. Charles F. Hobson, Defining the Office: John Marshall as Chief Justice Natalie Wexler, In the Beginning: The First Three Chief Justices Prof. G. Edward White, The Internal Powers of the Chief Justice: The Nineteenth Century Legacy 12:15 PM - 1:45 PM LUNCH KEYNOTE: Linda Greenhouse, How Not To Be Chief Justice 2:00 PM - 3:30 PM THE SELECTION, TENURE, AND EXTRAJUDICIAL AUTHORITY OF THE CHIEF JUSTICE AND OTHER JUSTICES Prof. Stephen B. Burbank, Proposals to Change the Tenure of Supreme Court Justices: An Interdisciplinary Perspective Prof. Theodore W. Ruger, The Chief Justice's Special Authority and the Norms of Judicial Power Prof. Judith Resnik, A Democratic Deficit: The Multiple Sources and Kinds of Power of the Chief Justice of the United States 3:45 PM - 5:15 PM DOCTRINAL AND STRATEGIC INFLUENCES OF THE CHIEF JUSTICE Prof. Jeffrey Segal, Moderator Prof. Frank B. Cross (probable) & Stefanie A. Lindquist, The Decisional Significance of the Chief Justice Prof. Edward Swaine, Hail, No: Changing the Chief Prof. Paul J. Wahlbeck, The Impact of Opinion Assignment Friday, November 11, 2005 10:00 AM - 10:30 AM REGISTRATION & CONTINENTAL BREAKFAST 10:30 AM - 12:00 PM A COMPARATIVE VIEW OF THE CHIEF JUSTICE’S ROLE Prof. Kim Lane Scheppele, Moderator Prof. Peter E. Quint, Leading a Constitutional Court: Perspectives from the Federal Republic of Germany Prof. J. Mark Ramseyer, The Case for Managed Judges: Evidence from Japan After the Political Upheaval of 1993 (with Prof. Eric B. Rasmusen) 12:15 PM - 1:45 PM LUNCH KEYNOTE: Prof. Erwin Chemerinsky, The Phases of the Rehnquist Court 2:00 PM CLOSING REMARKS

Miers Withdraws Here's an excerpt from the New York Times story:
    In recent days, several prominent members of the Republican Party had begun to publicly question Ms. Miers's nomination, suggesting was not conservative enough on issues such as abortion. Others, including Democrats and Republicans, have questioned Ms. Miers's lack of judicial experience since her nomination was announced on Oct. 3. * * * Concern among conservatives over her views on abortion and judicial philosophy heightened on Wednesday when The Washington Post reported that Ms. Miers, in a 1993 speech in Dallas, spoke approvingly about a trend toward "self-determination" in resolving debates about law and religion, including those involving abortion rights and religion in public schools and public places.
Comments from Owen Kerr at Volokh here. From Kerr's post:
    The question now is who the President will pick as a replacement. It's impossible to know, of course: Who expected that Bush would select Miers? If I had to guess, though, the current political situation will push the White House to pick someone with broad and deep support on the Right who also won't cause a revolt among Democrats. To me that suggests someone like Michael McConnell or Karen Williams.

Thursday Calendar
    Georgetown Law: Orly Lobel, University of San Diego, "Sleeping with the Enemy or Effective Public Management?: Government/Industry Cooperation for Promoting Workers' Rights." (link is to longer paper). (For comments on an earlier version of this talk, surf here.)
    Oxford Jurisprudence Discussion Group: Pavlos Eleftheriadis, Rights in Deliberation
    Stanford Law & Economics: Ian Ayres (Yale Law School), "An Option Theory of Legal Entitlements"
    University of Minnesota Public Law Workshop: Myron Orfield, University of Minnesota Law School, "The Minneapolis Desegregation Settlement"
    University of Michigan Law & Economics: Sean Griffith, Connecticut, Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies
    Brooklyn Law School: Susan N. Herman, Brooklyn Law School, The Patriot Act and the Submajoritarian Fourth Amendment.
    Fordham University School of Law: Linda C. McClain, Rivkin Radler Distinguished Professor of Law, Hofstra University School of Law, and James E. Fleming, Professor of Law, Fordham University School of Law, "Constitutionalism, Judicial Review, and Progressive Change".
    NYU Colloquium in Law, Philosophy, and Political Theory: Tommie Shelby, Black Solidarity After Black Power.
    Boston University School of Law: Eric Blumenson (Suffolk), "The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court". Here is the abstract:
      This article addresses what is often described as the 'peace versus justice' problem, in the context of prosecutorial discretion at the International Criminal Court. The problem typically arises when the threat of prosecution would derail peace negotiations or deter a tyrant from relinquishing power. It already confronts the ICC in its first referral, concerning crimes against humanity committed during an on-going civil war in Uganda, where many victims and their families are imploring the prosecutor to foreswear prosecution. They argue that indictments will deter the rebels from negotiations, and that their traditional restorative justice mechanisms will serve to promote justice and reconciliation far better than prosecutions. ICC decisions on this and other early cases will shape the contours of an emerging standard of global criminal justice. This article analyzes the conflicting claims of peace, pluralism and punishment in such cases. Among the central questions explored in the article are the following: (1) Does justice in the aftermath of crime always require prosecution? The answer explores the nature of retributive justice and its relationship to victims of crime. (2) Are the obligations of retributive justice absolute? The analysis considers three alternative ways of handling a conflict between the obligations of justice and the dire impact fulfilling them would have on third parties, when such is the case. This discussion includes a detailed response to one approach to such conflicts advocated by Profs. Sunstein and Vermeule in their forthcoming article in favor of capital punishment. (3) As a global institution, how much deference should the ICC afford to diverse state approaches to confronting the past? The article suggests that for procedural, substantive, and pragmatic reasons, the Court and its prosecutor should adopt a pluralist philosophy in its charging decisions and complementarity assessments.
    Florida State University Law: Thomas Main, McGeorge School of Law (visiting at FSU).
    Forum for European Philosophy (Londong): Matt Cavanagh (IPPR), Sen and Williams: Consequentialism and Public Policy
    Oxford Public International Law Discussion Group: Anthony Carty, The Limits of Institutionalism and Pragmatism in International Law - Any Other Way Forward?
    Oxford Institute of European and Comparative Law: Matthias Mahlmann, A New War of Religions? Problems and Prospects of Religious Tolerance
    University College, London: Charles Mitchell, "Equitable Rights and Wrongs"
    Vanderbilt Law: Glynn Lunney, Tulane University Law School, "The Law, Economics, and Morality of File Sharing"
    Vanderbilt Law: John Yoo, UC-Berkeley, Boalt Hall School of Law, "Force and Institutions"

Wednesday, October 26, 2005
Top Ten Law Blogs Opinio Juris links to a recent list of the top-ten law blogs.

Wednesday Calendar
    UC Davis Law: Ethan Leib, "Supermajoritarianism and the American Criminal Jury."
    Northwestern Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University, "Crossing the Punitive-Compensatory Divide"
    NYU Legal History: William Nelson, Weinfeld Professor of Law, NYU School of Law “The Common Law in Colonial America,” part II.
    Loyola Law School, Los Angeles: Peter Oh, Assistant Professor of Law, William Mitchell College of Law, "The Dutch Auction Myth"
    Oxford Clarendon Law Lectures: Stephen Cretney, Gay marriage, constitutional reform, social policy and democracy
    New. University of Toronto James Hausman Tax Law and Policy Workshop Series: Kirk J. Stark (UCLA), Time Consistency and the Choice of Tax Base. (Thanks to Paul Caron!)

Lobel on Work Law Orly Lobel (University of San Diego) has posted The Four Pillars of Work Law (Michigan Law Review, 2006) on SSRN. Here is the abstract:
    In our contemporary legal landscape, a student of the law of the workplace has scarce opportunity to encounter an integrated body of scholarship which analyzes the labor market as the subject of government regulation, contractual duties, collective action, and individual rights. This essay, reviewing two new books on workplace policies - Katherine V. W. Stone, FROM WIDGETS TO DIGITS: EMPLOYMENT REGULATION FOR THE CHANGING WORKPLACE (2004) and Raymond L. Hogler, EMPLOYMENT RELATIONS IN THE UNITED STATES: LAW, POLICY, AND PRACTICE (2004) - offers a vision for integrating the fields of "employment law," "labor law," "employment discrimination" and the tax-oriented "employee benefits law" under the conceptual framework of Work Law. Although the four pillars of work law have developed relatively independently from one another, the realities of contemporary work defy this fragmented structure and its conceptual satellites. The subjects and regulatory tools of all four fields overlap significantly and it is increasingly problematic to study and regulate them separately.
Highly recommended.

Stras on Judicial Retirement David Stras has posted The Incentives Approach to Judicial Retirement (Minnesota Law Review, Vol. 90, 2006) on SSRN. Here is the abstract:
    The concept of life tenure for judges has been roundly criticized in the legal academy, with many scholars advocating a mandatory retirement age or term limits for justices. These "command and control" approaches, however, do not target the most important factors in the retirement decision. Empirical studies demonstrate that workload, income, and prestige are the paramount factors influencing judicial retirement. Using empirical evidence, this essay proposes a judicial retirement function that can be used to model the retirement decisions of justices and other judicial actors. Rather than constitutional amendment, the incentives approach to retirement suggests that Congress should focus its attention on making incremental institutional modifications, such as to pensions and workload, to encourage retirement.

Chesney on International Detainee Transfers Robert Chesney (Wake Forest University - School of Law) has posted Leaving Guantanamo: The Law of International Detainee Transfers (University of Richmond Law Review, 2006) on SSRN. Here is the abstract:
    Revelations about the C.I.A.'s "extraordinary rendition" program have generated heated debate regarding the legal issues that come into play when the United States transfers an individual to the custody of a foreign state in circumstances involving an appreciable risk that the person will be tortured. Relatively little attention has been paid, however, to the related issues that arise when the U.S. military transfers Guantanamo (GTMO) detainees to the custody of their own governments. Dozens of such transfers have occurred over the past several years, and the Pentagon has announced that hundreds more are in the offing as the United States whittles the GTMO population down to a core group of relatively high-value detainees. Meanwhile, against a backdrop of heightened public interest in torture issues, in the spring and summer of 2005 nearly 100 of the detainees moved for preliminary injunctive relief in anticipation of a potential transfer, citing risk-of-torture concerns. These motions prompted a little-notice intra-circuit split among the judges of the federal district court in D.C., and in the process demonstrated that the constitutional, statutory, treaty, and administrative law concepts applicable to this issue are not yet well-understood. My article aims to fill this gap, with particular attention paid to issues of judicial enforceability and the special circumstances associated with GTMO (taking into account Rasul v. Bush). In Part I, I orient the reader with a survey of the transfers and litigation that have occurred up to this point (including an online appendix providing detailed information relating to the detainees and their habeas petitions). Part II analyzes Article 3 of the Convention Against Torture, its implementing legislation, and a host of related issues ranging from diplomatic assurances to the Administrative Procedure Act. Parts III and IV consider the impact of the law of war on the transfer issue, with particular attention paid to conflict-status and detainee-status issues. In Part V, I draw on the state-created danger doctrine to explore the consequences for the transfer issue should the courts ultimately conclude that GTMO detainees have federal constitutional rights. Comments and criticisms are welcome.

Avraham on Pain-and-Suffering Damages Ronen Avraham (Northwestern University - School of Law) has posted Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change (Northwestern University Law Review, Vol. 100, Fall 2005) on SSRN. Here is the abstract:
    Pain-and-suffering awards make up approximately fifty percent of total awards, at least in some areas of personal injury cases. It is the subject of almost every tort reform, including the current administration attempts to reform medical malpractice law. Is there a rational way to quantify pain-and-suffering awards? In this paper, written for a special centennial issue of NU law review, I explain some of the suggestions for pricing pain-and-suffering put forward in the literature and preliminary offer a different way to look at the problem. The theoretical approach I adopt in this paper to the pricing of pain-and -uffering is to analyze it from a law and economics standpoint, which also incorporates a limited notion of global fairness. My starting point is the "majority view" which states that efficient tort law requires pain-and-suffering damages to be awarded so tortfeasors will internalize the full social costs of their conduct, including the non-monetary ones. My focus in this paper is the fundamental unresolved issue of how to price such damages. After reviewing various proposals for pricing pain-and-suffering, I argue that all of these proposals are analytically problematic, and undesirable as a matter of policy. I then propose a new way to price pain-and-suffering. Under my proposal, a system of age-adjusted multipliers would be assigned to plaintiffs' medical costs (but not to other economic costs) in order to calculate the pain-and-suffering component. The multipliers would be non-binding, allowing the jury to fairly deviate when justice required. This system solves the problem of unpredictability and, at the same time, approximates optimal deterrence, all at very low administrative costs. It combines the advantages of efficiency and fairness by having a jury determine awards on a case-by-case basis, without the high complexity of assessing pain-and-suffering losses present in other proposals.

Barnes on Spyware Wayne Barnes (Texas Wesleyan University - School of Law) has posted Rethinking Spyware: Questioning the Propriety of Contractual Consent to Online Surveillance (UC Davis Law Review, Vol. 39, 2006) on SSRN. Here is the abstract:
    The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a result, there have been many legislative proposals, on a state and federal level, to address the spyware problem. All of the proposals assume that, if knowing and effective consent to spyware installation is granted by the consumer, then the software is lawful. Existing case law would seem to provide a means for corroboration of this conclusion. However, the implications of allowing such profound and invasive surveillance appear to be largely ignored in all of the proposals and discussion concerning spyware. This may be because of the "problem of perspective" concerning online activities, as first highlighted by Professor Orin Kerr. This article seeks to illuminate the true nature of the spyware bargain, and questions the propriety of sanctioning such "surveillance bargains" under principles of contract law. Such bargains may often be unenforceable because a term allowing continual surveillance may be beyond the range of reasonable expectations of most consumers. Even if not, however, the privacy implications are such that we as a society may wish to condemn such "bargains to be spied upon," and conclude that such contracts should simply be unenforceable as a matter of public policy, and therefore banned.

Call for Papers: Perspectives on Evil and Human Wickedness
    7th Global Conference: Perspectives on Evil and Human Wickedness Monday 13th March - Friday 17th March 2006 Salzburg, Austria Call for Papers (please cross post where appropriate) This inter-disciplinary and multi-disciplinary conference seeks to examine and explore issues surrounding evil and human wickedness. Perspectives are sought from those engaged in the fields of anthropology, criminology, cultural studies, legal studies, literature, philosophy, psychology, sociology, and theology. Perspectives are sought from those working in the caring professions, the media, prison services, politics, psychiatry and other work-related and vocational areas. Papers, reports, work-in-progress and workshops are invited on issues related to any of the following themes: * the concept and language of 'evil' and 'wickedness' * the nature and sources of evil and human wickedness * moral intuitions about dreadful crimes * psychopathic behaviour - mad or bad? * choice, responsibility, and diminished responsibility * social and cultural reactions to evil and human wickedness * the portrayal of evil and human wickedness in the media and popular culture * suffering in literature and film * individual acts of evil, group violence, holocaust and genocide; obligations of bystanders * terrorism, war, ethnic cleansing; the evils of terrorism, fear of terrorism, international relations especially with regard to the modern nation state, superpower interventionist strategies, post-war reorganisation following the evils of war * the search for meaning and sense in evil and human wickedness * the nature and tasks of theodicy * religious understandings of evil and human wickedness * postmodern approaches to evil and human wickedness * ecocriticism, evil and suffering * gender and evil * evil and the use/abuse of technology; evil in cyberspace The Steering Group particularly welcomes the submission of pre-formed panel proposals. Papers will also be considered on any related theme. 300 word abstracts should be submitted by Friday 2nd December 2005. If an abstract is accepted for the conference, a full draft paper should be submitted by Friday 17th February 2006. 300 word abstracts should be submitted to the Organising Joint Chairs; abstracts may be in Word, WordPerfect, PDF or RTF formats. Organising Committee : Margaret Breen Department of English, University of Connecticut, Groton, CT, USA Email: Rob Fisher Inter-Disciplinary.Net, Freeland, Oxfordshire, UK Email: Stephen Morris Independent Scholar, New York, USA Email: Eight themed volumes have and/or are in the process of being published. All papers accepted for and presented at the conference will appear in an ISBN eBook. In addition, selected papers accepted for and presented at this conference will also be published in themed volumes. The conference is part of a larger series of ongoing conferences, run under the general banner 'At the Interface'. It aims to bring together people from different areas and interests to share ideas and explore various discussions which are innovative and exciting. For further details about the project, please visit: For further details about the conference please visit:

Book Announcement: The Jewish Social Contract by Novak
    The Jewish Social Contract: An Essay in Political Theology by David Novak To read the entire book description or a sample chapter, please visit: The Jewish Social Contract begins by asking how a traditional Jew can participate politically and socially and in good faith in a modern democratic society, and ends by proposing a broad, inclusive notion of secularity. David Novak takes issue with the view--held by the late philosopher John Rawls and his followers--that citizens of a liberal state must, in effect, check their religion at the door when discussing politics in a public forum. Novak argues that in a "liberal democratic state, members of faith-based communities--such as tradition-minded Jews and Christians--ought to be able to adhere to the broad political framework wholly in terms of their own religious tradition and convictions, and without setting their religion aside in the public sphere. Cloth | $39.50 / £26.95 | ISBN: 0-691-12210-5

Tuesday, October 25, 2005
McAdams on Special Prosecutors Over at the University of Chicago Law Schools, "The Faculty Blog," Richard McAdams has a post entitled The Special Prosecutor's Authority. Here's a taste:
    In anticipation of possible indictments in the Plame investigation, commentators have recently expressed the hope that the Special Prosecutor Patrick Fitzgerald will not charge anyone with only cover-up offenses such as perjury or obstruction of justice. The idea is that Fitzgerald should pass on charging such offenses unless he can also charge the same person with a "substantive" crime, especially the crime that gave rise to the investigation, which (roughly) prohibits those with security clearances from knowingly disclosing a covert operative's status. Two days ago Sen. Kaye Hutchinson stated on "Meet the Press" that she hoped that, if there were an indictment, it would be "on a crime and not some perjury technicality." Nicholas Kristof makes essentially that point in today’s New York Times. In the Weekly Standard, Bill Kristol makes a similar but weaker point – that Fitzgerald should not bring a perjury charge unless it is "clear cut" nor any obstruction charge unless it is "willful and determined."
Check it out!

Tuesday Calendar
    University of Illinois College of Law: Heidi Hurd, "Promises Schmomises"
    Georgetown Law: Jonathan Molot.
    NYU Colloquium in Law, Economics, and Politics: Robert Inman (The Wharton School - University of Pennsylvania) with Daniel Rubinfeld (University of California, Berkeley and NYU School of Law), "Federal Institutions and the Democratic Transition: Learning from South Africa" & Accompanying tables and appendix
    Oxford Human Rights Discussion Group: Jeff King and Gregoire Webber, Human Rights and the Role of Courts: A Debate
    Oxford EC Law Discussion Group: Stephen Weatherill, EC law and sport - will the Oulmers case destroy international football?
    Oxford Centre for Socio-Legal Studies: HE Yoweri Kaguta Museveni, Developing Nations & Human Rights: A perspective on present day Uganda.
    Oxford Clarendon Law Lectures: Stephen Cretney, Partnership or Marriage: "Gay, straight, black or white, marriage is a civil right"
    Vanderbilt Law: Howard Erichson, Seton Hall Law School, "Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation"

Lemos on Criminal Punishment and the Commerce Clause Margaret H. Lemos (New York University - School of Law) has posted The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence? (Texas Law Review, Vol. 84, 2006) on SSRN. Here is the abstract:
    The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts - the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce - by finding those facts itself rather than providing for case-by-case proof to a jury. As the Court's decision last Term in Gonzales v. Raich illustrates, such findings-based statutes are subject to a presumption of constitutionality and will be sustained so long as the underlying legislative judgment was rational. The conflict between legislative findings and the constitutional requirements for criminal prosecutions is ignored in the vast literature on the commerce power, which focuses overwhelmingly on whether Congress can reach certain activities (and whether courts can or should impose meaningful limits on Congress's legislative authority), but pays scant attention to how Congress legislates. Commentators assume that, since Congress's power to act on the basis of its own findings regarding the connection between the regulated conduct and interstate commerce is well-established in the civil sphere, it must be equally clear in the criminal context. As this article demonstrates, however, findings-based statutes generate unique costs in criminal prosecutions by depriving defendants of procedural protections designed to make it harder for the government to send an individual to jail than to regulate her conduct by civil means. The common justifications for leaving questions of commerce largely to Congress's discretion, moreover, ring hollow when considered in the context of criminal law. Given the considerable costs of findings-based criminal prohibitions and the absence of any countervailing benefits, I argue that legislative findings should not serve as the basis for criminal punishment. Instead, courts should require case-by-case proof of the facts that demonstrate the necessary connection between the defendant's conduct and interstate commerce.

Call for Papers: Joint Session 2005
    CALL FOR PAPERS 2006 JOINT SESSION OF THE MIND ASSOCIATION AND THE ARISTOTELIAN SOCIETY UNIVERSITY OF SOUTHAMPTON, 7TH –9TH JULY OPEN SESSIONS A number of parallel sessions on Saturday and Sunday afternoons will be available for the presentation of papers not previously published. There will be a considerable number of these sessions available, allowing room for many submissions to be included. The intention is to accommodate all philosophical material suitable for presentation to a professional audience, so far as time and space in the programme allow, and not to operate a selective policy. Each presentation should last no more than 20 minutes, so that a further 10-15 minutes may be allowed for discussion. Presented papers should aim to introduce material involving recent research. There are no restrictions on the areas of philosophy which papers may address. Philosophers whose papers are included in this part of the programme must be or become subscribing members of one of the organising societies. Those wishing to make a presentation should submit by e-mail attachment a copy of their paper (no more than 2000 words), together with a 250-word abstract, to by 1st March 2006. Decisions on whether papers have been accepted will be made by the end of April 2006. Papers accepted for the Open Sessions will not be published in the Supplementary Volume of the Aristotelian Society (unlike papers invited for the plenary programme of the conference); and expenses will not be paid. POSTGRADUATE SESSIONS Two parallel sessions on the Saturday afternoon will be devoted to short presentations by graduate students (or those who have recently obtained a postgraduate degree). Each student should speak for 20 minutes, allowing 10 minutes for discussion. Students wishing to participate should send their paper, preferably by attachment in Word 98 or higher, otherwise in two hard copies, by 1st February 2006 to: Dr. Mark Eli Kalderon, Department of Philosophy, University College London, Gower Street, London WC1E 6BT. Email: The paper should be about 2000 words but no more than 2500 words, including notes and bibliography, and should begin with a brief abstract. It should be typewritten in 12-point text, single-spaced throughout (i.e. including references and quotations), on one side of white A4 paper. All pages should be numbered and have margins of 1 inch or more. Papers containing symbols liable to distortion in transmission should be submitted as hard copies; otherwise soft copy is welcome. Please ensure that there are no self-identifying references in the text. Submissions should be accompanied by a separate page containing the title of the paper, the name of the author, institution and status, and email and postal addresses. Authors are advised to consult supervisors about what may be suitable for presentation to a largely professional audience. Given the tight word-limit, they are advised to give as much space as they can to the statement of their own ideas. The papers will be sent to referees, and a maximum of eight will be selected for presentation at the Joint Session. The programme will be settled in May 2006. The selected authors will have their conference fee and accommodation expenses (but not their travel costs) paid by the Mind Association and the Aristotelian Society. Some papers may subsequently be considered for publication in the Proceedings of the Aristotelian Society. Nobody should submit a paper for both the Postgraduate and the Open Sessions, and only one paper may be submitted per individual. However, graduate students whose submission for the Postgraduate Sessions is unsuccessful may subsequently be advised that their paper has been accepted for the Open Sessions. Conference costs, however, will not be paid by the organisers. INVITED SPEAKERS Inaugural Address – Timothy Williamson Symposia: Andy Clark and Naomi Eilan Sally Haslanger and Jennifer Saul John Hawthorne and Scott Sturgeon Lloyd Humberstone and Brian Morrison Tom Hurka and John Tasioulas Ken Gemes and Christopher Janaway For information about the Aristotelian Society & the Joint Session see

Monday, October 24, 2005
Miers Blogging Check out What Should Democrats Do About Miers? Beyond the Popcorn Strategy by Jack Balkin & Why AG Gonzales Will Not Be Nominated to Replace Harriet Miers and What We Might Get Instead by Rick Hasen. Here's a taste from Hasen's post:
    [T[he new nominee could well be to the right of MIers, especially on issues like voting rights and affirmative action. Jack Balkin explores the alternative scenarios for nomination. Jack thinks the Gang of 14 might block a more conservative nominee, making it more likely that Bush will nominate a moderate. I disagree with the latter part of this analysis. The Gang of 14 could well block the nominee, but I think this helps Bush. If Bush nominates a Janice Rogers Brown, he gives the conservatives the fight they want, and regains capital with them. If he later fails after the strong Senate battle, he can come back with a more moderate nomiinee and a more supportive base.

Monday Calendar
    New! UC Berkeley, Center for the Study of Law and Society: David Law, The Paradox of Omnipotence: Courts, Constitutions, and Commitments".
    Columbia Law & Economics: Justin Wolfers, The Wharton School, University of Pennsylvania, "Did Unilateral Divorce Laws Raise Divorce Rates? A Reconciliation and New Results"
    Boston College School of Law: Dorothy A. Brown, Professor of Law, Alumni Faculty Fellow and Director of the Frances Lewis Law Center, Washington & Lee University School of Law, "The Ownership Society and Private Accounts"
    George Mason Law: Adam Mossoff, Michigan State University College of Law, “Who Cares What Thomas Jefferson Thought About Patents: Reconsidering the Patent 'Privilege' in Historical Context”
    Georgetown Environmental Research Workshop: Professor Michael Vandenbergh, Vanderbilt University School of Law, "The Private Life of Public Law"
    Hofstra Law: Timothy Zick, St. John’s University School of Law, “Property, Place, and Public Discourse”
    Aristotelian Society (London): Kinch Hoekstra, The End of Philosophy (The Case of Hobbes).
    NYU Law: Chris Sanchirico.
    Ohio State Law: Jennifer Wriggins, University of Maine, The Value of Injury: Race, Gender, Torts (1900-1950)
    University of Alabama Law: Austin Sarat, Amherst College (rescheduled from Aug. 31) What Happened to Mercy? On the Paradox of Sovereign Prerogative in Capital Cases.
    Oxford Centre for Socio-Legal Studies: Jeanne Flavin, Security, Citizenship and the Law: regulating boundaries: Regulating poor women's reproduction in the United States
    Oxford Clarendon Law Lectures: Stephen Cretney, Homosexuality: from "odious crime" to the love that dares speak its name
    UCLA Law: Professor Richard Steinberg, UCLA School of Law, The Formation and Transformation of Trading States in Poor Countries
    Vanderbilt Law & Business: James Cox, Duke University School of Law, "Empirically Reassessing the Lead Plaintiff Provision: Is the Experiment Paying Off?"
    University of Texas Law: Bob Rasmussen, Vanderbilt University, Private Debt and the Missing Lever of Corporate Governance