Gillman at Empirical Legal Studies Blog
Howard Gillman, about whom I cannot say enough good things, is guest blogging at Empirical Legal Studies blog. Check him out here, here, and here. Don't miss this.
University College, London: Annual Antitrust & Regulation Forum on'European State Aid Reform'
Chaired by Professor Mario Monti, President of Università Bocconi, Milan; former European Commissioner for Competition
The European Commission’s position on State aid reform:
Philip Lowe, Director General, DG Competition, European Commission
The role of economic analysis in State aid policy and enforcement:
Mathias Dewatripont, Professor of Economics, ECARES, Universitè Libre de Bruxelles; Centre for Economic Policy Research
The role of private litigants and Member States in State aid enforcement:
Frédéric Jenny, Cour de Cassation, Paris; Visiting Professor, University College London
University of Arizona Law: Ellen Bublick, The Restatement (Third) of Economic Torts
[T]here is a very serious risk that the Roberts Court would strike down a renewed section 5 as unconstitutional.
The Supreme Court, as part of its "New Federalism" jurisprudence, has recently been limiting the ability of Congress to pass civil rights laws. Beginning with the 1997 case of City of Boerne v. Flores, the Court has held that Congress must produce a strong evidentiary record of intentional state discrimination to justify laws that burden the states. In addition, whatever burden is placed on the states must be "congruent and proportional" to the extent of the violations.
Under this standard, Congress could well have an evidentiary problem with a renewed section 5.
Yochai Benkler’s The Wealth of Networks: How Social Production Transforms Markets and Freedom is a very exciting book. It captures an important set of developments – how new information technologies make it easier for individuals to collaborate in producing cultural content, knowledge, and other information goods. It draws links across apparently disparate subject areas to present a theory of how these technologies are reshaping opportunities for social action. Finally, it presents a highly attractive vision of what society might be like if we allow these technologies to flourish, as well as the political obstacles which may prevent these technologies from reaching their full potential. If you’re interested in debates on Creative Commons, on Wikipedia, on net neutrality, or any of a whole host of other issues, this is an essential starting point.
Contributers include Henry Farrell, Dan Hunter, John Quiggin, Eszter Hargittai, Jack Balkin, Siva Vaidhyanathan, and Yochai Benkler. Highly recommended!
Wiley Rutledge is not well known in modern legal circles, but he should be. Rutledge was a truly exceptional judge, whose work compares in quality with Jackson 's, Frankfurter's, or Black's. Also, his life and career track the rich, understudied period in Supreme Court history between Lochner's death and Brown 's birth.
More importantly, Rutledge's jurisprudence about executive detention holds vital lessons for decisions in the War on Terror. This Article divides executive detention jurisprudence into three phases: jurisdiction, uncharged detentions, and trials by military commission. At each step, I compare a case from Rutledge's era to one from our own.
The Article's comparative analysis includes as highlights:
(1) a clearer view of Rasul v. Bush's jurisdictional holding concerning Guantanamo Bay, (2) a novel, revisionist account of the Japanese-American cases, Hirabayashi and Korematsu, (3) praise for Justice Souter's opinion in Hamdi v. Rumsfeld, concerning indefinite detention of American citizens, and (4) two important arguments for the petitioner in Hamdan, a pending military commission case.
The occasion for my attempt at a Rutledge Revival is John Ferren's superb biography, Salt of the Earth, Conscience of the Court. By way of brief conclusion, I sketch a theory of judicial biographies' role in the constructing cultural heroes and villains, and I suggest that certain tendencies within the genre risk distorting our intuitions and assumptions about judicial role and judicial business.
Leiter on Toleration of Religion
Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted Why Tolerate Religion? on SSRN. Here is the abstract:
Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. While the historical reasons for the special “pride of place” accorded religious toleration are familiar, what is surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion: that is, an argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices, commitments, and practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in, for example, American and Canadian constitutional law. So why tolerate religion? Not because of anything that has to do with it being religion as such - or so this paper argues.
A nice paper. I might add the following: From a Rawlsian perspective, religious beliefs from comprehensive (or partially comprehensive) conceptions of the good. Although contemporary pluralist societies characteristically have a plurality of religious and nonreligious comprehensive conceptions, this has not always been true. When the modern concept of toleration was formed, it is arguable that all (or almost all) of the comprehensive conceptions that competed for the allegiance of citizens were religious and hence that toleration of competing conceptions of the good was more or less equivalent to toleration of religion. Once that changed, then the relationship between religion and toleration also changed. Highly recommended.
This article analyzes the power of the President to create federal law on the foundation of the executive’s status as the constitutional representative of the United States in foreign affairs. Executive branch advocates have claimed such a power throughout constitutional history. Recent events also have revived this constitutional controversy with particular vigor. In specific, President Bush recently issued a surprise “Determination” which asserted that the implied executive powers of Article II of the Constitution permit the President to enforce in domestic law the obligations owed to foreign states under international law.
The article first sets the legal and factual context for the lawmaking powers of the President in foreign affairs. After a brief review of President’s constitutional powers in foreign affairs, it reviews the historical assertions of executive lawmaking authority over foreign affairs lawmaking. The initial part of the article then examines the recent revival of the controversy by the Bush Administration in its claim to a unilateral, discretionary power to define and enforce international law.
The article then develops three core principles of executive lawmaking on the foundation of the formal foreign affairs obligations of the United States. Briefly, these three principles hold: (1) that the Constitution does not vest in the President a general lawmaking authority in foreign affairs, even to enforce formal rights or obligations owed to other states under international law; (2) that the President nonetheless may obtain such a power through an express or implied delegation from Congress, including through the vehicle of a treaty; and (3) that the Constitution itself delegates to the President certain powers in foreign affairs, but the domestic incidents of these powers are both few and limited, and must yield to congressional power in any event.