The prize, which will be awarded for the first time in 2006, has been generously provided for by a gift from the Honourable Dennis Mahoney QC AO, former President of the New South Wales Court of Appeal.
The prize will go to the author or authors of an outstanding published work in the field of jurisprudence which best reflects an approach combining legal theory with sociological inquiry, in the tradition of the jurisprudence of the late Professor Julius Stone. Stone’s approach, expounded in his seminal work of 1946, The Province and Function of Law and in many other works throughout his life, sought to demonstrate that the law inexorably responds and changes as society changes.
A ‘published work’ need not necessarily be in the form of a traditional book or journal publication. Other types of publication, including reports or papers, are eligible.
The recipient of the prize will receive a cash prize of AU$50,000, with the offer of an invitation to participate in the activities of the Faculty of Law at the University of Sydney for a period of up to one semester. He or she may also receive an invitation to deliver the prestigious Julius Stone Address in the year following the award of the prize.
Entries may be directly submitted by the author(s), or on the nomination of a third party. Entrants are required to submit an application form and five copies of the work, plus five copies of their curriculum vitae. Four copies will be returned following judging, and one will be kept in the archive of the Julius Stone Institute.
Applications close on 1 January 2006. The prize winner will be announced in May 2006.
Chen on Phagism
Jim Chen (University of Minnesota Law School) has posted The Phages of American Law (UC Davis Law Review, Vol. 36, p. 455, 2003) on SSRN. Here is the abstract:
September 11, 2001, changed the world. Exactly five weeks later, the individual right theory of the Second Amendment received its greatest boost ever. In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the Fifth Circuit opined that the Second Amendment protects the rights of individuals ... to privately possess and bear their own firearms. This decision may have been the first prominent pronouncement on civil liberties by the federal judiciary after September 11.
This article explores emerson in a larger legal and real-world context. It explores the constitutional implications of treating gun ownership as a protected individual right. First, recharacterizing the chief law enforcement officers of the states as members of the militia enables Congress to command them to execute the Laws of the Union. U.S. Const. art. I, Section 8, cl. 15. Printz v. United States, 521 U.S. 898 (1997), which struck down the Brady Bill, should be reconsidered and perhaps overruled. Second, Emerson's underlying logic suggests that the Second Amendment should not be incorporated against the states via the Fourteenth Amendment. Finally, insofar as the individual right theory rests upon an expansive definition of militia, Emerson portends the recognition of a stunningly fecund font of federal police power.
Shifting from legal doctrine to empiricism, this article then explores a singular contradiction of the individual rights theory's underlying assumption that widespread gun ownership deters violence. Federal law has historically imposed a comprehensive gun-free zone on one of the principlal channels of interstate commerce: air travel. Nothing in the United States' hastily revamped security matrix permits, let alone encourages, civilian travelers to arm themselves. Commercial aviation therefore challenges the idea of public security through widespread deployment of personal firearms. If total civic disarmament not only promises but actually delivers freedom from violence, broad gun ownership - to say nothing of its protection through constitutional law - loses much of its appeal.
As a legal matter, Emerson establishes a modest new civil liberty in exchange for an expansive congressional power. Civil aviation in practice subverts the individual rights theory's approach to public safety. The leading threat to American security today comes from terrorism and asymmetrical warfare. September 11 changed our perspective on private violence and its place in the American constitutional scheme. Neither that scheme nor September 11 justifies the treatment of private gun ownership as a pillar of national security.
This is the way the law ends
This is the way the law ends
This is the way the law ends
Not with a whimper but a bang.
This article was written under the pseudonym "Gil Grantmore."
The ongoing transposition of the EU Information Society Directive's requirement that member States adopt of legal prohibitions of the circumvention of technological protections of works of authorship occasions this review of international obligations and their implementation in the US. This article addresses the scope of international obligations the WIPO Copyright Treaties impose on member States to protect against circumvention, as well as the US experience with the Digital Millennium Copyright Act's prohibitions on circumvention of access and copy controls. It examines the text of the statute, codified at sec. 1201 of the 1976 Copyright Act, the five years of judicial decisions interpreting the statute, and the two administrative proceedings implementing one aspect of the statutory scheme. The analysis of the DMCA and its judicial and administrative interpretation will take up three issues:
1) What technological measures does sec. 1201 protect?
2) What conduct does sec. 1201 prohibit?
3) To what extent does sec. 1201 accommodate copyright exceptions?
The US experience to date indicates that legal protection for technological measures has helped foster new business models that make works available to the public at a variety of price points and enjoyment options, without engendering the "digital lockup" and other copyright owner abuses that many had feared. This is not to say that the US legislation and its judicial interpretation represent the most preferable means to making the internet a hospitable place for authors while continuing to enable lawful user conduct. But brooding forecasts and legitimate continuing concerns notwithstanding, the overall equilibrium so far appears to be a reasonable one.
Present First Amendment doctrine presumptively protects anything within the descriptive category expression from government regulation, subject to balancing against countervailing government interests. As government actions during the present war on terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent - the expressive activity most integral to our constitutional design. At the same time, present doctrine fails to give a clear account of why the Constitution protects expressive autonomy and when that protection properly should yield to government interests, leading to an inconsistent and unsatisfying free speech regime. In this article, Professor Magarian advocates a bifurcation of free speech doctrine: protect only political speech under the First Amendment, subject to no countervailing interest but the interest in sustaining political discourse itself; meanwhile, protect nonpolitical speech as a matter of substantive due process. This substantive due process proposal draws on the Supreme Court's recent decision in Lawrence v. Texas, whose two principal contributions to the doctrine - firmly grounding due process protection in the value of personal autonomy and discrediting purely moral government regulations - provide a reliable basis for protecting nonpolitical speech alongside other behavior whose primary value lies in fostering personal autonomy. Shielding nonpolitical speech under the Due Process Clause rather than the First Amendment would allow courts to deepen the First Amendment's protection of political speech while providing a more coherent and consistent rationale for protecting nonpolitical speech.
Prescient selections from the century-old H.G. Wells novel The Island of Dr. Moreau provide rhetorical echoes for this critique of the Proposed Canadian Standard for Xenotransplantation. Xenotransplantation, which is animal-to-human cell, tissue, or organ transplantation, represents one facet of the new areas of development that fall under the general rubric of biotechnology. This developing area has been slowed by the risk posed by infections that may emerge and threaten public health if clinical trials of xenotransplantation proceed. Xenotransplantation also has the potential of great profitability for the biotechnology companies that offer the source animals, particularly if the science should prove successful. This paper first introduces the scientific elements of xenotransplantation. Then, it surveys policy developments in Canada with respect to xenotransplantation. Finally, it turns to the ethical dimension of xenotransplantation, concluding that the nature of the risks and the precautionary principle should necessitate that Canada call for a moratorium on xenotransplantation.
Madison on Social Software
Michael J. Madison (University of Pittsburgh School of Law) has posted Social Software, Groups, and Law on SSRN. Here is the abstract:
Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading "social software," increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. Such a framework may be organized along three dimensions by which groups arise and sustain themselves: regulating places, of things, and of stories.
CRITICAL ISSUES IN RESTORATIVE JUSTICE, Howard Zehr and Barb Toews (eds). Devon, UK: Criminal Justice Press/Willan Publishing, 2004. 436pp. Paper. £21.24/$38.50 ISBN: 1-881798-51-8. Reviewed by William T. Lyons, Jr.
REGULATING PROCUREMENT: UNDERSTANDING THE ENDS AND MEANS OF PUBLIC PROCURMENT REGULATION, by Peter Trepte. Oxford: Oxford University Press, 2004. 428pp. Hardback. £65.00 / $135.00. ISBN: 0-19-826775-4. Reviewed by Robert M. Howard.
LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE, by Cass R. Sunstein. New York: Cambridge University Press, 2005. 246pp. Hardback. £40.00/$65.00. ISBN: 0521848237. Paperback. £15.99/$23.00. ISBN: 0521615127. Reviewed by Sanford Levinson. Be sure to read this one!
RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE, by Wojciech Sadurski. Dordrecht, The Netherlands: Kluwer Academic Publishers, 2005. 377pp. Hardcover. $199.00 / €150,00 / £104.00. ISBN: 1-4020-3006-1. Reviewed by Lynn M. Maurer.
RELIGION ON TRIAL: HOW THE SUPREME COURT TRENDS THREATEN FREEDOM OF CONSCIENCE IN AMERICA, by Phillip E. Hammond, David W. Machacek, and Eric Michael Mazur. Walnut Creek, California: AltraMira Press, 2004. 160pp. Paper. $19.95. ISBN: 0-7591-0601-0. Cloth. $65.00. ISBN: 0-7591-0600-2. Reviewed by Mark C. Modak-Truran.
In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the "nuclear option," by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is broadly consistent with the recent history of the federal judicial appointments process.
We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain - perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators - the so-called "Gang of 14" - that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.
And this passage comes from near the end of the paper:
A president’s political mortality—particularly that of a lame-duck president entering the second half of his last term—can be expected to influence his choice of nomination strategy. If presidents are to leave their mark upon the world—or the judiciary—they must do so quickly. Judicial vacancies left for Democratic successors represent missed opportunities for the Republican President and Senate leadership. Moreover, if the President can improve today upon the status quo with appointments that are only moderately conservative, there is no reason for him to wait until tomorrow to do so: a moderately conservative judge does nothing to affect the status quo until he is already seated on the bench. To paraphrase an old adage, as the end of his second term approaches, a bird in the hand may well prove to be worth two to President Bush.
With the support of a likeminded Senate majority willing to threaten the nuclear option, the President enjoys powerful advantages over his opposition in the Senate. He cannot make full and prompt use of these advantages, however, until he first knows just how extensive they actually are, and it is questionable whether he now has the time to discover their true extent by trial and error. The sheer passage of time thus casts a different light upon the plight of his enfeebled opposition. By now, it should be clear that the existence of the nuclear option is not good for the Democrats. Moreover, the truce that has been styled a Democratic victory is, in substance, nothing of the sort. At best, it formalizes in loose language what was political reality all along—namely, that the filibuster may only be used to the extent that the nuclear pivot is in fact willing to tolerate filibusters. The real victory for the Senate’s remaining Democrats lies in the fact that, for the better part of the current president’s political lifespan, they have managed to filibuster judicial nominees and postpone the moment of nuclear reckoning–only to postpone it again with an uncertain truce, and thereby keep the true extent of their own power shrouded in mystery, at the critical juncture of the President’s first Supreme Court vacancy.
Black & Caron on Raking Law Schools
Bernard S. Black and Paul L. Caron (University of Texas at Austin - School of Law and University of Cincinnati College of Law) have posted Ranking Law Schools: Using SSRN to Measure Scholarly Performance (Indiana Law Journal, Vol. 81, 2005, Symposium on The Next Generation of Law School Rankings) on SSRN. Here is the abstract:
There are several methods for ranking the scholarly performance of law faculties, including reputation surveys (U.S. News, Leiter); publication counts (Lindgren & Seltzer, Leiter); and citation counts (Eisenberg & Wells, Leiter). Each offers a useful but partial picture of faculty performance. We explore here whether the new “beta” SSRN-based measures (number of downloads and number of posted papers) can offer a different, also useful, albeit also partial, picture. Our modest claim is that SSRN-based measures can address some of the deficiencies in these other measures and thus play a valuable role in the rankings tapestry. For example, SSRN offers real-time data covering most American law schools and many foreign law schools, while citation and publication counts appear sporadically and cover a limited number of U.S. schools. The SSRN measures favor work with audiences across disciplines and across countries, while other measures are more law-centric and U.S.-centric. SSRN is relatively new and thus favors younger scholars and improving schools, while other measures favor more established scholars and schools. At the same time, the SSRN measures have important field and other biases, as well as gaming risks. We assess the correlations among the different measures, both on an aggregate and on a per faculty member basis. We find that all measures are strongly correlated; that total and per faculty measures are highly correlated; and that SSRN measures based on number of papers are highly correlated with measures based on number of downloads. Among major schools, all measures also correlate with school size.