[I]t is not obvious to me that the new deterrence evidence "greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death"; nor am I sure that "[c]apital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment." If our objections to the death penalty are non-consequentialist, and focus on the immorality of its imposition, then it is not clear that our objections are vulnerable to evidence or awareness that by complying with a non-consequentialist moral rule against intentional killing we are making more likely immoral killings by others. To fail to prevent another's intentional killing is not -- is it? -- the same thing as to intentionally kill another.
My colleague here at Emory Law, Joanna Shepherd, is one of the economist-authors of the work on which Sunstein & Vermeule rely. But in a more recent paper, Professor Shepherd reaches a more nuanced conclusion: that in the United States, “executions deter murders in six states, . . . have no effect on murders in eight states, and . . . increase murders in thirteen states.” She writes:
[E]mpirical analyses indicate that there is a threshold effect that explains the differing impacts of capital punishment. On average, the states with deterrence execute many more people than do the states where executions increase crime or have no effect. The results of this paper help to explain the contrasting conclusions for earlier papers: the deterrence or no-deterrence conclusion depends on the jurisdiction examined. My results also have important policy implications: to achieve deterrence, states must execute several people. If states are unwilling to establish such a large execution program, it may be better to perform no executions.
Joanna M. Shepherd, Deterrence versus Brutalization: Capital Punishment’s Differing Impacts Among States (draft, October 2004).
I'm not sure that Perry's point really undermines what I take to be the central thrust of Sunstein & Vermeule's argument--which seems entirely consistent with Shepherd's point that an effective death penalty may require "a large execution program."And you may also be interested in two posts by Will Baude (here and here) and more collected here by Doug Berman.
University of Pennsylvania Legal Theory Workshop: Professor Edna Ullman-Margolit, Hebrew University.
Yale Legal Theory Workshop: Amartya Sen, Harvard University (in joint session with the LEO workshop and Schell Center) "What's the Point of Human Rights?"
Boston University School of Law: Wendy Gordon.
Florida State University Law: Jody Kraus, University of Virginia.
George Mason School of Law: Ross Davies, GMU School of Law, Modest Justice.
George Washington University IP Series: Sara K. Stadler, Emory University Law School, "How Copyright Is Like a Moebius Strip".
University of Michigan Cyberlaw & Economics Workshop: Christopher Yoo, Vanderbilt, On the Regulation of Networks as a Complex System.
University of Texas Constitutional & Legal Theory Colloquium: Nicola Lacey, London School of Economics & Political Science.
In my article, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas (2002-2003 Cato Supreme Court Review 21 (2003)), I claim that Justice Kennedy's opinion in Lawrence is potentially revolutionary because it protects "liberty" rather than a right of privacy and shifts the burden of justification to the government without any showing that the liberty in question is fundamental, as required by well-established Due Process Clause doctrine. In his article, Is Lawrence Libertarian? (88 Minn. L. Rev. 1140 (2004)), Dale Carpenter calls into question my reading of Lawrence. In this brief reply, I respond to these criticism, by imagining that the words of Justice Kennedy's opinion were submitted to Professor Carpenter by one of his students as her answer to a final exam question based on the facts of Lawrence. I explain why he would have given the student a B precisely because the opinion deviates from the established doctrine that Professor Carpenter undoubtedly would have taught his class. Because it is a Supreme Court opinion and not a student exam answer, however, Justice Kennedy and the four justices who joined his opinion are free to ignore previous doctrine and adopt a potentiallyrevolutionary approach, for which I give Justice Kennedy an A.
I read everything by Barnett. Dowload it while its hot!
Gerken on Dissent
Heather Gerken (Harvard University - Harvard Law School) has posted Dissenting by Deciding (Stanford Law Review, Vol. 56, 2005). Here is the abstract:
On a conventional understanding of dissent, dissenters have two choices with regard to governance: act moderately or speak radically. To the extent that would-be dissenters want to govern - to wield the authority of the state - they must bargain with their votes to gain concessions from the majority. Would-be dissenters who deploy this strategy take part in an act of governance, but it is governance of a moderate sort. Alternatively, would-be dissenters can speak radically by freely stating their views in a dissenting opinion or minority report. In doing so, dissenters sacrifice the chance to be part of the governing majority; they speak with a critical rather than authoritative voice.
What is missing from the usual account of dissent is a third possibility: that would-be dissenters could act radically. We have trouble envisioning dissent taking the form of a governance decision. Our conventional intuition is that dissenting means speaking truth to power, not with it. After all, we might think, if would-be dissenters had enough votes to control the outcome of a decisionmaking process, they wouldn't be "dissenters" anymore. "Dissenting by deciding" seems like a contradiction in terms.
The main reason we overlook the possibility of dissenting by deciding is that we tend to conceive of democratic bodies as unitary. Where decisionmaking power is disaggregated - as with juries, school committees, or local governments - global minorities can constitute local majorities. Disaggregated institutions can thus allow dissenters to decide, to act on behalf of the polity.
One example of dissenting by deciding occurred when San Francisco spent several weeks marrying gay and lesbian couples. The principle embodied in San Francisco's decision was no different than the argument found in editorials, judicial dissents, and ongoing public debates. What was different was the form dissent took. Dissenting by deciding can also take place when a school board mandates the teaching of creationism or a jury engages in nullification. These decisionmakers subscribe to the same set of commitments held by individuals whom we would unthinkingly term "dissenters." But they express disagreement not through conventional means, but by offering a real-life instantiation of their views.
Dissenting by deciding, then, should be understood as an alternative strategy for institutionalizing channels for dissent within the democratic process. But because dissent has not been conceptualized in these terms, scholars have not given adequate thought to which form of dissent is preferable, and when. This paper takes a first step in that direction. The payoff for thinking about dissent in the terms proposed here is a more comprehensive set of categories for thinking about how best to institutionalize it.
This article pits Ronald Dworkin against Fyodor Dostoyevsky. The article critiques Ronald Dworkin's answer to the question of fit: how judges reconcile general legal rules with particular situations. Dworkin's heavy focus on legal principles under-emphasizes the importance of facts in judicial decisionmaking. Exploring how judges approach the question of fit from a more literary perspective, the article examines the posture of a judge - a judge's physical and temporal position in relation to the cases she adjudicates, a position which affects the level of generality with which a judge perceives the facts of a case and directly influences a judge's toleration of imprecision in fit between general propositions and concrete cases. Postures provide a descriptive account of aspects of our legal experience that Dworkin’s principled jurisprudence cannot explain. The article focuses on Fyodor Dostoyevsky's The Brothers Karamazov to illustrate how a multiplicity of similar yet distinct postures are shaped and how they relate to each other. An examination of Dostoyevsky's novel demonstrates deficiencies in Dworkin's theories and illustrates how literature can answer questions that Dworkin's jurisprudence cannot.
A wave of financial irregularity broke out in the United States in 2001-2002, culminating in the Sarbanes-Oxley Act of 2002. A worldwide stock market bubble burst over this same period, with the actual market decline on a percentage basis being somewhat more severe in Europe. Yet, no corresponding wave of financial scandals involving a similar level of companies broke out in Europe. Indeed, those scandals that did arise in Europe often had American roots (e.g., Vivendi, Ahold, Adecco, etc.). Given the higher level of public and private enforcement in the United States for securities fraud, this contrast seems perplexing.
What explains this contrast? This paper submits that different kinds of scandals characterize different systems of corporate governance. In particular, dispersed ownership systems of governance are prone to the forms of earnings management that erupted in the United States, but concentrated ownership systems are much less vulnerable. Instead, the characteristic scandal in concentrated ownership economics is the appropriation of private benefits of control. Here, Parmalat is the representative scandal, just as Enron and WorldCom are the iconic examples of fraud in dispersed ownership regimes.
Is this difference meaningful? This article suggests that this difference in the likely source of, and motive for, financial misconduct has implications both for the utility of gatekeepers as reputational intermediaries and for design of legal controls to protect public shareholders. What works in one system will likely not work (at least as well) in the other. The difficulty in achieving auditor independence in a corporation with a controlling shareholder may also imply that minority shareholders in concentrated ownership economies should directly select their own gatekeepers.
Guzelian on Scientific Free Speech
Christopher P. Guzelian (Northwestern University - School of Law) has posted Scientific Free Speech on SSRN. Here is the abstract:
Audiences frequently mistake speakers' viewpoints (non-scientific speech) or authority-based opinions (scientific speech not justified by scientific knowledge) as Evidence-Based conclusions (scientific speech justified by scientific knowledge). It logically follows from settled free speech theory and fundamental tort and criminal principles ("Kiodynamic" principles) that misleading authority-based (scientific) opinions causing legally cognizable harms are punishable in tort or criminal law unless: (1) traditional tort or criminal defenses apply; or (2) the speaker has carefully standardized legislative authorization to mislead. The First Amendment may also afford a private organization a presumption that its members have assumed the risk of being misled by organizational opinions.
This essay further contends that: (1) current evidentiary standards controlling expert witness testimony cannot distinguish whether a relevant scientific proposition is presently known to be a fact, a falsehood, or an uncertainty, regardless of which gatekeeper rule (Daubert, Frye, or Havner) controls. These standards assure that misleading opinions, but not necessarily Evidence-Based conclusions, reach the fact-finder in every case where dueling experts both testify; (2) current renditions of the adversarial expert witness system are therefore impermissible under Kiodynamic tort and criminal law principles, and violate the First Amendment if used specifically to resolve scientific free speech controversies; (3) state and federal governance (including the judiciary) must be restructured, so that Evidence-Based Logic (EBL) is the exclusive basis for governmental declarations of scientific knowledge.
11-14 September 2005,
UNESCO, Paris, France
Call for Papers--Deadline Extended to April 15
To submit an application to have a paper considered for inclusion in the conference, please click here.
The Human Development and Capability Association (HDCA) will organise the 5th annual Conference on the Capability Approach next September 2005 in Paris and Versailles, France, with the support of:
the Centre of Economics and Ethics for Environment and Development (University of Versailles)
the Division for the Promotion of Quality Education, UNESCO
the French Institute for Research on Development (IRD)
the French Agency for Development (AFD)
the IMPACT Network on public policies against poverty and inequality
As for the previous years, the following institutions are associated to the organisation of this conference:
the Interdepartmental Centre for Social Philosophy and the European School for Advanced Studies in Cooperation and Development (University of Pavia)
the Capability and Sustainability Centre, Von Hugel Institute, (University of Cambridge)
the International Institute for Sustainable Development (Canada)
the Global Equity Initiative (Harvard University)
The conference will consist of four types of sessions:
The training sessions will review the basic concepts of the capability approach and applied work related to education, public actions and measurement. These sessions are set up before the start of the conference, i.e. in the afternoon of Sunday 11th September.
The parallel sessions are for the presentation and discussion of the full academic papers. These will be distributed according to a few key topics as underlined by the participants themselves through the papers sent.
The plenary sessions will focus on the main conference theme Knowledge and Public Action and the related sub-themes Education, Responsibility, Collective Agency and Equity. Keynote speakers will debate the fundamental issues.
The posters sessions will allow researchers and practitioners to present on-going research and project.
This conference, like the previous ones in Cambridge and Pavia, is open to all economists, philosophers, social and political scientists, development experts, policy makers, and graduate students, who are developing and actively applying the capability approach, for instance to the human development paradigm. It intends to serve as an ongoing forum for intellectual innovation, communication and collaboration, dealing with these topics, with reference to the work initiated by Amartya Sen and Martha Nussbaum. These scholars will contribute to the conference.
Therefore all scholars whose research is extending the capability approach, both its conceptual basis, through theoretical as empirical studies and through field operations, are welcome to this event. They will have the opportunity to debate ideas and projects together.
While the papers may come from any discipline and may be theoretical, applied, or policy-based, every paper must fundamentally engage with applying, extending, or criticising the capability approach. This can be done through the human development paradigm and address topics such as: philosophical and ethical foundations, issues in operationalizing the capability approach, capability measurement and empirical analysis, gender, public action, democratic practice, poverty and inequality, ecosystems and sustainable development, education, health and AIDS, disabilities, migrations, culture, religious dimensions, conflicts, etc. We will adjust the categories of the parallel sessions according to the content of the papers received. So if you are engaged in important research using the capability approach with respect to another topic, do not hesitate to submit it.
Naturally, we are seeking high quality research papers that explicitly carry forward some of the signal insights of the capability approach and the human development paradigm. Papers critical of this approach are equally welcome.
The special theme of this year conference is Knowledge and Public Action. It includes four research directions, on which participants are encouraged to submit papers.
1. Quality Education - In order to improve the quality of education and contribute to the decade on education for sustainable development, four key pillars are considered: learning to know, learning to do, learning to be, and learning to live together, all in qualitative and quantitative ways, referring to the persons' psycho-social capabilities (i.e. life-skills). These would guide the design of appropriate programs to overcome disability, AIDS and more generally all forms of vulnerability; but also, within a long term perspective to protect ecological environment and social participation.
2. Responsibility as Source of Freedom - The issue is to understand how possible it is to increase the level of personal freedoms while facing social obligations and responsibility. How do capability, freedom and responsibility relate altogether? This may require to re-examine the definition of the individual vs. the person, to combine ethical principles from the Good and from the Just, in order to design the appropriate public policies which will aim at expanding people's capability.
3. Collective Agency, Personal Capabilities, Institutions - The concept of agency helps relating collective actions to the capability approach. However, how could we link the micro level of the person and the household to the meso level of social groups and institutions, in order to reach the macro thinking at the level of regions and State? Public policies geared towards a sustainable human development really need to consider and interrelate these various levels of analysis.
4. Public Action and Sharing with Equity - How would the capability approach be related to the sustainable view of development? Is it by ensuring an equitable distribution of capabilities within a generation or through an equitable transfer of capabilities from one generation to the other? What would be then the required processes of social protection, sharing and redistribution that would ensure social sustainability?
The deadline for the submission of a paper proposal is the 15th April 2005. All proposals will be reviewed by the Conference Scientific Committee and notice of acceptance of the papers will be sent by early May 2005. Then the full papers are expected on the 1st July 2005.
Due to the large number of expected papers, it is important to respect these two dates. Proposals and papers which are not received by the deadlines will be rejected or eventually put in the poster sessions.
For submitting proposals, please use the enclosed application form that should be sent to Jean-Luc Dubois (firstname.lastname@example.org).
The Conference Scientific Committee is composed of:
Arun Abraham, University of Pennsylvania, USA
Sabina Alkire, Global Equity Initiative, Harvard University, USA
Jérôme Ballet, Université de Versailles, France
Enrica Chiappero-Martinetti, University of Pavia, Italy
Flavio Comim, Capability and Sustainability Centre, St. Edmund's College, Cambridge, UK
Séverine Deneulin, St. Edmund's College, Cambridge, UK
Jean Luc Dubois, Centre d'Economie et d'Ethique pour l'Environnement et le Développement, Institute of Research for Development (IRD), France
Anantha K. Duraiappah, International Institute for Sustainable Development, Winnipeg, Canada
Reiko Gotoh, Ritsumeikan University, Japan
Anna-Maria Hoffmann, UNESCO, Paris
Jean-Pierre Lachaud, Université de Bordeaux, France
François-Régis Mahieu, Université de Versailles, France
Mozaffar Qizilbash, University of East Anglia, Norwich, UK
Ingrid Robeyns, University of Amsterdam, Netherlands
The conference fees will be around 260 euros for academicians and professionals and 120 euros for scholars from LDC's and students. The cost of accommodation in hotels will be around 80 euros per night and in university rooms around 60 euros per night. People who wish to be considered for financial assistance should fill out the relevant section of the application form. Since fellowships are scarce, they will be required to submit their papers in time.
More detailed information about the conference organisation, as well as transport and accommodation facilities, will be posted after the 1st of May on the conference web site: http://www.hd-ca.org/conference
For any further information, please contact:
Centre d'Economie et d'Ethique pour l'Environnement et le Développement (C3ED)
Université de Versailles St. Quentin en Yvelines (UVSQ)
47 Bd Vauban - 78047 Guyancourt Cedex, France
Tel: 00.33.1.39.25.56.86 - Fax: 00.33.1.39.25.53.00
LoPucki on Multinational Bankruptcy
Lynn M. LoPucki (University of California, Los Angeles - School of Law) has posted Global and Out of Control (American Bankruptcy Law Journal, Vol. 79, June 2005) on SSRN. Here is the abstract:
Multinational bankruptcy cases have tremendous potential for forum shopping because changing forum country also changes the law that will determine the debtor's remedies and the creditors' priorities. That potential has been held in check by the multinational companies' need that the courts of other countries recognize the decree of the forum court. Thus, the need for recognition is the lynchpin that holds forum shopping largely in check.
Many of the world's leading bankruptcy professionals are now seeking to eliminate the recognition requirement by adopting "universalist" laws and regulations. This paper briefly describes three such efforts. First, the European Union has adopted a regulation, effective in 2002, requiring EU countries to recognize multinational bankruptcies filed in the debtor's "home country" (provided that country is in the EU). Second, UNCITRAL has promulgated, and the U.S. is about to adopt, a Model Law that encourages recognition of multinational bankruptcies filed in the debtor's "home country." Third, the American Law Institute has promulgated "Principles of Cooperation in Transnational Insolvency Cases" that, when combined with the Model Law, make recognition of home country multinational bankruptcies effectively mandatory.
This paper was initially published as Chapter 8 of Courting Failure: How Competition for Big Cases Is Corrupting the Bankruptcy Courts (2005). Other chapters of the book describe forum shopping and court competition in and to the U.S. This paper describes rampant forum shopping and court competition in European Union cases since the adoption of the regulation. It predicts that worldwide rampant forum shopping and court competition will result from the adoption of the Model Law, and explains how that will occur.
Universalist bankruptcy laws lead to forum shopping because multinational companies do not have "home countries" in any meaningful sense and, to the extent that they do, they can easily change them to gain legal advantage over their creditors. The paper speculates that some "universalists" are deliberately seeking to throw the international bankruptcy system into chaos in order to force countries to rapidly harmonize their laws (which will reduce the incentives for forum shopping). What the Universalists have not anticipated, however, is the potential for a "race to the bottom" as courts and countries compete for the multibillion dollar business of multinational bankruptcy.