Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes the Supreme Court’s major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a surprisingly consistent theme emerges: the Court has consistently upheld federal authority to regulate zero-sum, finite resources over which rivalry of use takes place – the key characteristics of a commons. The Court’s Commerce Clause jurisprudence can be interpreted as treating these “privatized commons resources” as necessarily meeting the third test for determining the validity of federal legislation under the Commerce Clause – the “substantial effects” test. Recognizing the use of commons analysis to meet the substantial effects test is an important step, as it provides security about the continued protection of valuable natural resources, a clearer statement of the Court’s approach in environmental cases and more certainty and effectiveness in environmental and natural resources legislation. Commons analysis also answers persistent questions arising in Commerce Clause cases, including when the aggregation principle may be invoked to find substantial effects on interstate commerce, what the “object of regulation” is in environmental Commerce Clause cases, and the proper scope of federal Commerce Clause authority given constitutional federalism requirements.
Thom Brooks (Newcastle University - Newcastle Law School) has posted Retribution and Capital Punishment (RETRIBUTIVISM: ESSAYS ON THEORY ON PRACTICE, Mark D. White, ed., Oxford University Press, 2010) on SSRN. Here is the abstract:
Should retributivists reject capital punishment? It is easy to see how those holding different theories of punishment might oppose it. For example, a deterrence proponent could argue that capital punishment lacks a deterrent effect and, thus, it is unjustified. This seems a far more difficult task for a retributivist.
I will argue that retributivists should reject capital punishment for murderers. My argument will accept several concessions. First, I accept that capital punishment may be proportionate to the crime of murder. Thus, my claim is not that capital punishment should be rejected because it is disproportionate to murder. Secondly, I accept that capital punishment need not be cruel nor unusual punishment. This is an area of wide disagreement, but I do not wish to be distracted by these debates here. Note that I am not defending any particular method of execution. I simply assume that a method may be satisfactory. Thirdly, I also accept that capital punishment is not barbaric nor uncivilized. Some philosophers, such as Kant, rejected punishments for some crimes on the grounds that doing so might itself be a crime against humanity. This also an area of wide disagreement I wish to avoid. In summary, these three concessions are accepted up front purely for the sake of argument. My claim is that retributivists should reject capital punishments for murderers even if they believed it proportionate for murderers, it was not cruel nor unusual to impose capital punishment on murderers, and capital punishment was not barbaric nor uncivilized.
This paper aims to recover a place in the contemporary theory of justice for the work of courts. It argues that the claims of justice, whatever they might be, are claims as to what is right. Any such claim is open to the possibility of violation. And those violations of the right give rise to a demand for redress, where that demand is itself a matter of justice. For example, in the events surrounding the beating of Rodney King, there was not just one wrong (the beating) but two – first the beating and second the acquittal, the one an invasion of the right to physical integrity, the other a failure to redress the first – and the two wrongs stand in an ordered relationship such that the second is logically dependent on the first. Thus the redressive demand changes the conceptual structure of justice. One must build two coordinate systems of norms, the one a set of primary norms, defining how people are to behave so as to avoid wrongdoing, and the other a set of redressive norms, identifying the proper response to wrongdoing when it occurs – just as there must be in any sport one set of rules specifying how to play without committing fouls (e.g., don’t run while carrying the ball in basketball) and another set of rules specifying what to do when a foul is committed (e.g., give the other team free throws). Thus this paper’s thesis: Any complete theory of justice requires an account of both primary justice and redressive justice. The former has been the particular concern of contemporary political philosophy in the tradition of John Rawls. The latter, wrongly neglected in the contemporary theoretical tradition, is the special province of a legal system.
7th International Symposium of Cognition, Logic and Communication
6-8 May 2011, Riga, Latvia
Michael Bishop (Florida State University), Stephen Stich (Rutgers University)
INVITED SPEAKERS include:
Michael Bishop (Florida State University)
Luc Faucher (Université du Québec a Montréal)
Joshua Knobe (Yale University)
Edouard Machery (University of Pittsburgh)
Dominic Murphy (University of Sydney)
Shaun Nichols (University of Arizona)
Jesse Prinz (City University of New York)
Adina Roskies (Dartmouth College)
Don Ross (University of Cape Town)
Stephen Stich (Rutgers University)
Valerie Tiberius (University of Minnesota)
There has been considerable interest recently in empirical approaches to the study of morality: What are the biological, cultural and psychological factors that explain the shape of our moral judgments, norms and practices? This conference will focus on current research into these facts – particularly findings from cognitive science – and their relevance to a philosophical theory of morality.
The symposium is co-hosted by the Center for Cognitive Sciences and Semantics of the University of Latvia and the Department of Philosophy at Kansas State University
Call for Submitted papers:
A limited number of papers will be selected for presentation at the symposium and considered for inclusion in the proceedings in the Baltic International Yearbook of Cognition, Logic and Communication.
Time allowed for presentations is 40 minutes including discussion. Submitted papers should have a maximum of 3000 words and should be accompanied by a 200 words abstract.
All submitted papers should be PREPARED FOR BLIND REVIEW, and should be sent electronically to:
bolzano (at) ksu.edu
DEADLINE FOR SUBMISSION IS 15 JANUARY 2011. Authors will be notified in FEBRUARY 2011.
In addition to individual papers, the scientific committee will be considering proposals for symposia. Time allowed for symposia is 2 hours (including discussion). Symposia should include a minimum of three and a maximum of four contributions. Submissions should be clearly identified as “Symposium proposal” and include:
1) The title of the symposium
2) A brief description of the topic and its relevance to the conference (200 words)
3) The name, affiliation and academic status (student, lecturer, assistant professor, etc.) of each participant
4) The title of each contribution as well as an extended 500-1000 word abstract.
5) The name, affiliation and academic status of the person who will be chairing the symposium
Symposium proposals should be sent electronically to:
bolzano (at) ksu.edu
DEADLINE FOR SUBMISSION IS 15 JANUARY 2011. Authors will be notified in FEBRUARY 2011.
Sponsors and partners:
The University of Latvia
Kansas State University
Serena Williams was eliminated in the semifinals of last year’s U.S. Open when, having lost the first set and down 5-6 in the second, she was called for a second-serve foot fault that made it match point for Belgium’s Kim Clijsters. Williams’s explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williams’s outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sport’s rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.
Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to “let ‘em play” or to “swallow the whistles” in crunch time, while other observers wonder how such a practice could possibly be justified.
This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials – the common sayings “no harm, no foul” and “it cost us the game”; the material breach doctrine from contract law and tort law’s “lost chance” doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more. Its ambition is not merely to resolve this single – surprisingly deep and rich puzzle – but to birth a new field of sustained jurisprudential and legal-comparative study: the field of sports and law.
An illuminating essay that is as much about jurisprudence as it as about sports and law. Highly recommended.Download it while its hot!
Existing research suggests that practicing litigators are too confident in the merits of their clients’ cases. But practicing attorneys often self select (1) the area of law in which they practice, (2) the side on which to practice within that area, (3) law firms with whom they practice, and (4) the clients they represent. We explore whether, after stripping away these selection-biases, legal advocates are still overconfident in their clients’ claims by exploiting a natural experiment involving participants in moot court competitions at three U.S. law schools. Students are randomly assigned to advocate for either petitioner or respondent, so none of the selection-bias problems above are present. We find that following participation in moot court contests, students overwhelmingly perceive that the legal merits favor the side that they were randomly assigned to represent. We also find that overconfidence is associated with poorer performance in advocacy as measured by legal writing instructors. Theoretical and practical implications are discussed.
I missed this when I was on vacation. Highly recommended!
Freedom of conscience has long been touted as a fundamental principle of American society. Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Indeed, many current policy debates – including debates about the right of medical providers to refuse involvement in controversial procedures, and the right of voluntarily enlisted military personnel to withdraw from armed conflict – are predicated on the theory that claims of conscience are worthy of legal respect. This Article challenges established assumptions, demonstrating that the principle of freedom of conscience has little concrete support in positive American law.
This Article first fills a gap in legal scholarship by broadening traditional understandings of what it means to make a claim of conscience to include cases such as tax evasion, civil disobedience, terrorism, and discrimination. It then analyzes the law’s treatment of conscience across these various substantive realms, critiquing each of the justifications that have been offered for treating some cases more favorably than others. The Article concludes that positive American law does not in fact support a general principle of freedom of conscience; rather, it accommodates conscience only in sui generis cases that align with generally accepted moral principles. By raising our consciousness of conscience in this manner, the author hopes to reframe the debate about the normative value of conscience in American society and promote a more principled jurisprudence of accommodation for conscientious beliefs.
Christopher J. Buccafusco (Illinois Institute of Technology - Chicago-Kent College of Law) & Christopher Jon Sprigman (University of Virginia - School of Law) have posted The Creativity Effect (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
This paper reports the first experiment to demonstrate the existence of a valuation anomaly associated with the creation of new works. To date, a wealth of social science research has shown that substantial valuation asymmetries exist between owners of goods and potential purchasers of them. The least amount of money that owners are willing to accept to part with their possessions is often far greater than the amount that purchasers would be willing to pay to obtain them. This phenomenon, known as the endowment effect, may create substantial inefficiencies in many markets. Our experiment demonstrates the existence of a related “creativity effect”.
We show that the creators of works value their creations substantially more than do both purchasers of their works and mere owners of the works. The creators in our study valued their works (in this case, paintings) more than four times higher than potential buyers did and almost twice as high as mere owners of the works. Further, we provide evidence that these differences are the result of both creators’ irrational optimism about the quality of their work and potentially rational regret aversion associated with selling emotionally endowed property. We conclude by discussing the implications of these findings for intellectual property theory in general and IP licensing in particular. Our findings potentially undermine the classical economic approach to IP rights, and they suggest that IP markets may be less efficient than previously recognized.