Legal Theory Blog

Board Turnovers & New Volume

Board Turnovers & New Volume Submissions I am very pleased (and relieved) to report that Kaimi Wenger is collecting information about law review board transitions and dates for submissions for next year's volumes at Concurring Opinions. Follow this link!

Tuesday CalendarUniversity of Chicago, Law

Tuesday Calendar

University of Chicago, Law & Economics: Lee Fennell, Associate Professor of Law, University of Illinois College of Law, Properties of Concentration
Georgetown Colloquium on Constitutional Theory: Steven Teles (government, Center for the Study of American Politics, Yale University), Parallel Paths: The Evolution of the Conservative Legal Movement
Georgetown Law: Kathy Zeiler
Lewis & Clark Law: Julian Ku, Associate Professor of Law, Hofstra Gubernatorial Foreign Policy.
Oxford Human Rights Discussion Group: Caoilfhionn Gallagher, Proportionality in Practice
University of Pennsylvania, Tax Policy Workshop: Lily Batchelder, Refundable Credits
Yale Legal History: DANIEL ERNST, Georgetown University Law Center, "The Corporate Law Firm in the Liberal State: Legal Divisions in New Deal and Wartime Washington"
Loyola University Chicago: Steven Ramirez (Washburn Law School), "Corporate Governance and Race"

Lateral Hiring Report Dan Filler

Lateral Hiring Report Dan Filler is doing data collection on lateral hiring over at Concurring Opinions. Here is the link: Law School Lateral Hiring Report

Entry Level Hiring Report The

Entry Level Hiring Report The appointments season is winding down, and once again, I will compile an entry-level hiring report. I am interested in all entry-level tenure-track hires at American law schools. Click here to view last year's report. This time around, I am trying to collect the following data elements:

Name of hiring institution, e.g., University of Illinois Name of new hire, e.g., Jane Roe First law degree, e.g., JD Awarding institution for first law degree, e.g., NYU Date of first law degree, e.g., 2001 Other highest degree, e.g., PhD Field of other highest degree, e.g., Political Science Award institution of other highest post-graduate degree, e.g., Harvard Date of other highest post-graduate degree, e.g., 2002 Pre-tenure track legal academic posititon, e.g., Visiting Associate Professor Institution of pre-tenure track legal academic position, e.g., Georgetown

So, a complete entry will look like this:

University of Illinois:
Jane Roe, JD NYU 2001, PhD Political Science Harvard 2002, Visiting Associate Professor Georgetown

I hope you will forgive me for begging, but it would be great if the information actually were sent in this format.
If you are a job candidate, please pass along the email address of the appointments committee chair, so I can find out about other hires.
The data element, "pre-tenure track legal academic posititon," is intended to encompass VAPs, Fellowships, and other full-time positions that are intended to lead to a full-time academic job.
Email information to me at lsolum@gmail.com
Thanks!
Update: Reports are already rolling in! Thanks. I'll post an interim report once I have data on a significant number of schools and hires.

Adler & Sanchirico on Inequality

Adler & Sanchirico on Inequality and Uncertainty Matthew D. Adler & Chris William Sanchirico (Penn Law) have posted Inequality and Uncertainty: Theory and Legal Applications on SSRN. Here is the abstract:

“Welfarism” is the principle that social policy should be based solely on individual well-being with no reference to “fairness” or “rights.” The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attention. Call this the “ex ante/ex post” problem. The problem arises from the combination of uncertainty - an inevitable feature of real policy choice - and a social preference for equality. If the policymaker is not a utilitarian, but rather has a “social welfare function” that is equity-regarding to some degree, then she faces the following choice: Should she care about the equalization of expected well-being (the ex ante approach), or should she care about the expected equalization of actual well-being (the ex post approach)? Should she focus on the equality of prospects or the prospects for equality?

In this Article, we bring the ex ante/ex post problem to the attention of legal academics, provide novel insight into when and why the problem arises, and highlight legal applications where the problem figures prominently. We ultimately conclude that welfarism requires an ex post approach. This is a counterintuitive conclusion because the ex post approach can conflict with ex ante Pareto superiority. Indeed, the Article demonstrates that the ex post application of every equity-regarding social welfare function - whatever its particular form - must conflict with ex ante Pareto superiority in some choice situations. Among other things, then, the Article shows that legal academics must abandon either their commitment to welfarism or their commitment to ex ante Pareto superiority.

Highly recommended! This is a fascinating paper.

Graetz & Warren on Income

Graetz & Warren on Income Tax Discrimination & European Integration Michael J. Graetz and Alvin C. Warren Jr. (Yale Law School and Harvard University - Harvard Law School) have posted Income Tax Discrimination and the Political and Economic Integration of Europe (Yale Law Journal, April 2006) on SSRN. Here is the abstract:

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of EU member states as violating the guarantees of the European constitutional treaties of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant European income tax legislation, because no European political institution has the power to enact such legislation without unanimous consent from the member states. Under the treaties, the member states have retained a veto power over income tax legislation. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of international double taxation. We conclude that the ECJ approach is ultimately incoherent because it constitutes an impossible quest - in the absence of harmonized income tax bases and rates throughout Europe - to eliminate discrimination based on both origin and destination of economic activity. We also compare the ECJ’s jurisprudence with the resolution of related issues in the U.S. taxation of interstate commerce and international taxation. Finally, we consider the potential responses of both the European Union and the United States to these developments.

Wiegand on Conflicts Restatements Shirley

Wiegand on Conflicts Restatements Shirley Wiegand (Marquette University - Law School) has posted Fifty Conflict of Laws 'Restatements': Merging Judicial Discretion and Legislative Endorsement (Louisiana Law Review, Vol. 65, No. 1, 2005) on SSRN. Here is the abstract:

This article examines current choice of law methodologies and critiques proposals for new and improved methodologies. It rejects the call for a national approach and instead proposes that each state adopt its own statutory choice of law code. The author recommends that each state begin this process by conducting empirical research and analysis of its own choice of law jurisprudence to determine how judges have approached the issue since rejection of traditional methods. Such analysis would examine not only substantive results, but also the methodologies employed and the possible existence of various biases in choice of law analysis. A thorough analysis would also likely reveal clear patterns for those issues that reappear from time to time. Drafters of a state choice of law code, rather than creating a choice of law methodology from whole cloth, would base their recommendations on the state's own jurisprudence. Such a result engages the efforts of both the judicial and legislative branches of the state's government, thereby resulting in a credible written product that reflects the state's own policies and jurisprudence: a true "restatement" of the law.

Weiss on Enforceable Social Clauses

Weiss on Enforceable Social Clauses Marley S. Weiss (University of Maryland - School of Law) has posted Architectural Digest for International Trade and Labor Law: Regional Free Trade Agreements and Minimum Criteria for Enforceable Social Clauses on SSRN. Here is the abstract:

Until the advent of binding “social clauses” in free trade arrangements, and incorporation of stronger social rights in the European Community treaties, the rapid widening and deepening of international commercial integration proceeded largely separate from international labor rights obligations. Inclusion of a “social clause” in a trade agreement ensures that the parties´ international labor rights commitments have equal dignity and binding force with their trade obligations. The threat of economic sanction for non-observance of labor commitments akin to the penalties for trade rule violations also may provide some “teeth” to induce compliance, unlike the lack of economic sanctions for violation of formally binding ILO and international human rights-based labor provisions.

The implicit domestic political promise of trade negotiators, however, is that the social clause will operate as a circuit breaker in the feared downward spiral of domestic labor standards under pressure of free trade; the social clause functions as a political quid pro quo for trade liberalization. This paper argues that this bargain is largely illusory. Neither the typical human rights “naming and shaming” solution nor the usual national government-centered enforcement machinery provides realistic mechanisms to induce party-state compliance in the labor rights arena. The real parties in interest - employers, trade unions, and workers - are too disconnected from the international institutional process in most international regimes. Those benefiting through a form of unjust enrichment by a signatory country´s violations of its international labor commitments are institutionally insulated from any corresponding liability. Those suffering injury are institutionally excluded from ability to enforce the international obligations, and have no claim to recover compensation for their injuries caused by the government´s breach. The EU might provide a source of useful models for improving institutional arrangements and remedies, so as to ensure that “effective enforcement” becomes a meaningful term. Government reluctance to yield its sovereign control over the politically and economically delicate subject area of labor rights, however, presents an obdurate barrier to movement in this direction.

Bank on Dividens & Tax

Bank on Dividens & Tax Policy Steven A. Bank (University of California, Los Angeles - School of Law) has posted Dividends and Tax Policy in the Long Run on SSRN. Here is the abstract:

There is a long-standing debate as to whether changes in shareholder-level taxes have an effect on firm dividend policy. The traditional view is that tax changes influence dividends, while the new view is that there generally is no such effect. In support of the traditional view, recent observers point to the rise in dividends following the reduction in the tax rate on dividends in 2003. In fact, the resurgence in dividends has been so strong that President Bush has made it his top legislative priority to permanently extend the tax cut, which is currently set to expire at the end of 2008. The popular assumption is that the rise in dividends - and any associated economic and corporate governance benefits - will only continue if the lower rate is made permanent. This Article challenges that assumption. Using finance theory and empirical evidence from the U.S. and other countries, this Article shows that the relationship between dividends and taxes over the long run is more complex than dividend tax cut proponents suggest. Because the 2003 tax cut was only a temporary cut, making it permanent may actually have an effect that is opposite of what is intended. The implication is not that a temporary tax cut is preferable to a permanent one, but rather that the attempt to influence corporate behavior through the tax laws should be resisted as either futile or potentially counterproductive.

Legal Theory CalendarMonday, February 27

Legal Theory Calendar

Monday, February 27
Columbia Legal Theory Workshop: Robert A Kagan, Professor of Political Science and Law University of California, Berkeley, "American and European Ways of Law: Six Entrenched Differences"
Georgetown Law & Philosophy: Norman Finkel (Psychology, Georgetown)
Yale Workshop Theory & Policy: DALTON CONLEY, Sociology, New York University, Family Background and Race over the Life Course
Hofstra Law: Suzanne Goldberg, Rutgers School of Law – Newark, “Constitutional Adjudication, Civil Rights, and Social Change”
London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Nicola Knight (Michigan), On some aspects of the psychology of normativity
NYU Law: Clay Gillette.
UCLA Law: Ann Southworth, "Social Backgrounds and Characteristics of Prominent Lawyers of the Conservative Coalition: Sources of Conflict and Cohesion"
University of Alabama Law: Rob Atkinson, Florida State
University of Texas Law: Alex Stein (Cardozo), "Ambiguity Aversion and the Criminal Process"

Tuesday, February 28
University of Chicago, Law & Economics: Lee Fennell, Associate Professor of Law, University of Illinois College of Law, Properties of Concentration
Georgetown Colloquium on Constitutional Theory: Steven Teles (government, Center for the Study of American Politics, Yale University), Parallel Paths: The Evolution of the Conservative Legal Movement
Georgetown Law: Kathy Zeiler
Lewis & Clark Law: Julian Ku, Associate Professor of Law, Hofstra Gubernatorial Foreign Policy.
Oxford Human Rights Discussion Group: Caoilfhionn Gallagher, Proportionality in Practice
University of Pennsylvania, Tax Policy Workshop: Lily Batchelder, Refundable Credits
Yale Legal History: DANIEL ERNST, Georgetown University Law Center, "The Corporate Law Firm in the Liberal State: Legal Divisions in New Deal and Wartime Washington"
Loyola University Chicago: Steven Ramirez (Washburn Law School), "Corporate Governance and Race"

Wednesday, March 1
University College, London, Colloquium in Legal & Social Philosophy: Scott Shapiro (Michigan), Massively shared agency
NYU Legal History: Bernadette Meyler, Assistant Professor, Cornell Law School, "Towards a Common Law Originalism”
UCLA Legal History Workshop: Risa Goluboff, University of Virginia School of Law, « Back, The Lost Origins of Modern Civil Rights
University of Georgia Law: Michael Wells (UGA): "Sociological Legitimacy" in the Supreme Court
University of Toronto, Tax Law & Policy Workshops: Reuven Avi-Yonah, University of Michigan The Three Goals of Taxation.
Villanova Law: Milton Regan, Georgetown University Law Center
UC Hastings: Judge Loren Smith, US Court of Federal Claims, Life, Liberty, and (Whose) Property? with commentary by Prof. Bhagwat, UC Hastings.

Thursday, March 2
Yale Legal Theory Workshop: Jennifer Mnookin, UCLA (Law), Envisioning Evidence: Expertise and Visual Proof in the American Courtroom
Boston University Law: Henry Smith (Visiting Professor of Law, Harvard Law School and Professor of Law & Cognitive Science, Yale Law School), "Modularity in Intellectual Property"
Brooklyn Law: Daniel Greenwood, Visiting Professor of Law, Brooklyn Law School, Are Shareholders Entitled to the Residual?
Florida State Law: Jill Fisch, Fordham University School of Law
Fordham Law: Sonia K. Katyal, Associate Professor of Law, Fordham University School of Law, "Trademark Intersectionality"
UC Berkeley Center for Law and Technology & Berkeley Center for Law, Business and the Economy: Symposium on Legal and Policy Issues in Stem Cell Research
UC Berkeley, Kadish Center: Hans Sluga, Professor of Philosophy, University of California, Berkeley, The Care of the Common
NYU Colloquium on Tax Policy and Public Finance: Joseph Bankman, Stanford Law School, and David Weisbach, University of Chicago Law School, “The Superiority of an Ideal Consumption Tax Over an Ideal Income Tax.”
Northwestern Tax Series: Calvin H. Johnson, Andrews & Kurth Centennial Professor, University of Texas at Austin "Tales From the KPMG Skunk Works: The Basis-Shift or Defective-Redemption Shelter"
Oxford Jurispurdence Discussion Group: Juan Cruz Parcero, Reasons to Justify Rights
Oxford Public International Law Discussion Group: Judge Allan Rosas, International Law in the European Court of Justice
Stanford Law & Economics: Marcel Kahan (New York University Law School), "Hedge Funds in Corporate Governance and Corporate Control"
University College, London, Current Legal Problems Lecture: Mindy Chen-Wishart, (Merton College Oxford), ‘Undue Influence: Vindicating Relationships of Influence’
University of North Dakota, Indian Law Center: Philip S. (Sam) Deloria, "Indians in Legal Education"

Friday, March 3
Samford, Cumberland Law: Christine Hurt, Regulating Public Morals and Private Markets: Online Securities Trading, Internet Gambling and the Speculation Paradox.
Boston College: Martha L. Minow, Harvard Law School
Georgetown Law & Economics: Scott Baker, University of North Carolina School of Law, "Incomplete Contracts in a Complete Contracts World" (with K. Krawiec)
Loyola, Los Angeles: Roger C. Park, Distinguished Professor of Law, UC Hastings College of the Law, "The Utility of Cross-Examination"
Notre Dame Law: Professor Douglas Kysar, Cornell Law School
Ohio State Law: Elizabeth Garrett, The Promise and Perils of Hybrid Democracy*
UCLA Law: Richard C. Schragger, Associate Professor of Law, University of Virginia School of Law, "Can Strong Mayors Empower Weak Cities? Considering the Power of Local Executives in a Federal System"
University of Texas Law: David Barron, Harvard University, "International Local Government Law"
University of Maryland, Conference:
2:00-3:25ish PM Session 1: The Liberal Tradition and America's Past
Robin Rix Nackenoff Frymer
3:35ish-5:00ish PM Session 2: The Liberal Tradition and America's Present/Future
Kahn Smith Silverstein Novkov
St. Johns Law: Federalism Past, Federalism Future: A Constitutional Law Symposium
University of Arizona Law: Economic Torts Conference
8:30 a.m. Welcome * Toni M. Massaro, Dean, The University of Arizona James E. Rogers College of Law * Debora de Hoyos, Esq., Managing Partner, Mayer, Brown, Rowe & Maw, LLP * Lance Liebman, Director, The American Law Institute 8:45 a.m Introductory Remarks * Ellen M. Bublick, The University of Arizona James E. Rogers College of Law 9:00 a.m. Opening Speaker * The Honorable Richard A. Posner, U.S. Court of Appeals, Seventh Circuit Economic Loss and Misrepresentation 9:30 a.m. Questions & Answers 10:00-11:45 a.m. Panel 1: The Economic Loss Rule and Its Limits Moderator: Dan B. Dobbs, The University of Arizona James E. Rogers College of Law Speakers: * Mark P. Gergen, The University of Texas School of Law Non-Contractural Undertakings of a Duty of Care * Anita Bernstein, Emory University School of Law and New York Law School Why No Liability for Pure Economic Loss? * Jean Braucher, The University of Arizona James E. Rogers College of Law The Dormant Law of Economic Torts in the Shadow of Consumer Protection Statutes * Jay M. Feinman, Rutgers, The State University of New Jersey School of Law, Camden The Economic Loss Rule and Private Ordering * Commentator: Robert L. Rabin, Stanford Law School 12:00 noon Lunch * Helmut Koziol, Executive Director, European Centre of Tort and Insurance Law and Director of the Research Unit for European Tort Law of the Austrian Academy of Sciences Recovery for Economic Loss in the European Union 1:30-3:00 p.m. Panel 2: Principles of Recovery in Economic Torts Moderator: The Honorable Andrew D. Hurwitz, Arizona Supreme Court Speakers: * Deborah A. DeMott, Duke Law School Breach of Fiduciary Duty * Ellen Smith Pryor, Southern Methodist University Dedman School of Law Bad Faith * Ian Ayres, Yale Law School and Gregory Klass Georgetown University Law Center New Rules for Promissory Fraud * Commentator, Theodore J. Schneyer The University of Arizona James E. Rogers College of Law 3:15-4:15 p.m. Panel 3: Economic Torts: A View From Experience Moderator: Herbert Zarov, Mayer, Brown, Rowe & Maw, LLP Speakers: * Charles J. Kalil, Corporate Vice President, General Counsel and Corporate Secretary, The Dow Chemical Company * Howard Roin, Mayer, Brown, Rowe & Maw, LLP * Deborah R. Hensler, Stanford Law School
Saturday, March 4
University of Maryland, Conference:
9:00-10:25ish: Session 3: The Challenges of Maintaining Liberal Constitutional Law in 2005
Mayeri Gillman Solum Roiphe
10:35-noonish: Session 4: The Challenges of Constructing Liberal Constitutional Theory in 2005
Fleming Hellman Zeisberg McClain
1:30-2:55ish: Session 5: Domestic Liberalism and the War on Terror
Levinson Quint Chibundu Koppelman
3:05ish to 4:30ish: Session 6: Liberalism and Reconstruction:
Goldstein Tushnet
University of Arizona Law: Economic Torts Conference
9:00-10:30 a.m. Panel 4: Emerging Influences on Liability – Comparative Apportionment and Technology Moderator: Darian M. Ibrahim, The University of Arizona James E. Rogers College of Law Speakers: * Andrew R. Klein, Associate Dean, Indiana University School of Law – Indianapolis Fraud and Comparative Fault * John C. P. Goldberg, Vanderbilt University Law School and Anthony J. Sebok, Brooklyn Law School Reasonable Reliance * Oscar S. Gray, University of Maryland School of Law Comparative Apportionment for Economic Torts? * Catherine M. Sharkey, Columbia Law School Trespass in an Electronic Age * Commentator, Michael D. Green, Wake Forest University School of Law 10:45 a.m.- 12:15pm Panel 5: Integration and Completion – The Torts Restatement Whole Moderator: Elena A. Cappella, Esq. The American Law Institute Speakers: * Bernard W. Bell, Rutgers, The State University of New Jersey, Center for Law & Justice Constitutional Limitations and the Economic Torts * David A. Anderson, University of Texas School of Law Economic Torts and Defamation Law * Lucinda M. Finley, Vice Provost, The State University of New York at Buffalo School of Law Developments and Trends in Privacy Torts * Kenneth W. Simons, Boston University School of Law A Restatement Third of Intentional Torts? 12:15-12:30 p.m. Concluding Remarks