- Monday, February 28
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UCLA School of Law: Kurt Lash, The Lost History of the Ninth Amendment. Here is a taste:
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A comprehensive look at the lost history of the Ninth Amendment is presented in two articles, Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331 (2004), and Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597 (2005). This short essay briefly summarizes some important aspects of that history. Those interested in the subject are encouraged to read the full articles.
Given that the states had existed for more than a decade under the Articles as thirteen “free and independent states, it is no surprise that the degree to which the proposed Constitution would diminish (or eradicate) individual state autonomy was a major issue in the ratification debates. Despite Federalist assurances to the contrary, Anti-federalists warned of the potential consolidation of the states under a national government with unlimited power. Although a sufficient number of states eventually agreed to ratify the Constitution, a number of them did so with the understanding that the scope of federal power would be strictly limited. Several state conventions included statements of principle along with their notice of ratification declaring their understanding that all non-delegated powers, jurisdictions and rights were reserved to the states.
Northwestern International Law: Larry Helfer, Professor of Law, Vanderbilt University, "Exit Treaties". Here is a taste:
[B]uried at the back of most modern international agreements, and often overlooked by scholars, are provisions that call into question international law’s unequivocal command that states must either obey treaties or cooperate in abrogating or revising them. Such provisions, known as denunciation or withdrawal clauses, permit a state to “exit” from a treaty that the state had previously ratified and that is otherwise valid and in force.
Distilled to their essence, exit clauses create a lawful, public mechanism for a state to terminate its treaty obligations or withdraw from membership in an intergovernmental organization.5 Denunciation and withdrawal are fundamentally unilateral acts. They do not require the consent or approval of other states, and may often be effectuated simply by providing notice to the other parties. Moreover, a state that invokes these clauses to quit a treaty occupies a very different position from a state that breaches its treaty commitments. An exiting state faces different burdens and benefits, different prospects of being sanctioned, different reputational consequences, and different responses by other parties than a state that breaches an international agreement.
University of Texas School of Law: Richard Sander, University of California at Los Angeles, "A Systemic Analysis of Affirmative Action in American Law Schools".
Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia.
Hofstra University School of Law: Myriam Gilles, Cardozo Law School, “Opting Out of Class Action Liability”.
Loyola Marymount University, Loyola Law School: Douglas Berman, Professor of Law, Ohio State University Moritz College of Law, "Booker: The Future of the U.S. Sentencing Guidlines".
NYU Law: Liam Murphy, Concepts of Law.
Vanderbilt Law & Economics: Jennifer Arlen, New York University, "Private Contractual Alternatives to Malpractice Liability".
Vanderbilt Charney Distinguished Lecture Series: William Schabas, National University of Ireland, Galway, "Genocide and International Law: Darfur, Srebenica and Cambodia".
Tuesday, March 1
Oxford Jurisprudence Discussion Group: Stephen Perry, Associative Obligations and the Obligation to Obey the Law. Here is a taste:
One of the strands woven into the complex fabric of Law’s Empire is an argument that there exists, under certain conditions, a general moral obligation to obey the law. Whether or not there can ever be such an obligation is an age-old problem in political philosophy, and Dworkin’s argument is offered, in part, as a contribution to that particular philosophical tradition. But it is more than that, because the argument also constitutes an integral part of Dworkin’s general theory of law. That is why I say it is one strand of a complex fabric; for Dworkin, political and legal philosophy are inextricably connected. For many of the philosophers who have addressed the question of political obligation, as I shall call it, there is no such inevitable connection. Notice, to begin, that no respectable theory of political obligation ever claimed that a person is obligated no matter what to obey the laws of a legal system to which he or she is subject. Every minimally plausible theory sets out certain conditions under which such an obligation is said to arise, and Dworkin’s is no exception. Many such theories have, however, regarded these conditions as ones that do not figure in any essential way in the concept of law itself. They assume that law constitutes a system of norms the existence and content of which can be established by, say, looking to certain kinds of social facts, and then asking whether or not a given legal system meets a set of independently specifiable conditions; if these conditions are met, then a general obligation to obey is said to exist. Arguments based on consent are often (although not necessarily) of that form; they look to an independently specifiable condition that asks whether or not everyone who is subject to a legal system has validly consented to obey its laws, whatever they are. The argument from fair play is also of this form; it looks to an independently specifiable set of conditions that asks, first, whether the content of the norms of the system show it to be a mutually beneficial scheme of cooperation, and, second, whether or not those subject to the system have “accepted” its benefits.2 There are, as Dworkin points out, well-known problems with both arguments if they are regarded as the basis of a general obligation to obey the law, since it is never the case that everyone subject to any given legal system has validly consented to obey it or has accepted, in the appropriate sense, certain benefits it happens to provide (LE at 192-95). My present point, however, is that these arguments treat the philosophical problem of political obligation as for the most part independent of the philosophical problem about the nature of law.
Georgetown University School of Law: Abbe Smith.
Northwestern Empirical Legal Studies: Margaret Brinig, William G. Hammond Distinguished Professor of Law, University of Iowa, "The Effect of Change in Child Custody Standards".
Oxford Centre for Socio-Legal Studies: Richard Whitecross, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Citizenship and Belonging: Law and Identity in a Himalayan State.
Oxford Intellectual Property Research Centre: Dr Christine Greenhalgh & Dr Mark Rogers, Intellectual Property in the New Millennium: The Use of Intellectual Property by the UK Financial Services Sector.
Wednesday, March 2
Notre Dame Law School: Lawrence Solum, University of San Diego, "Virtue Jurisprudence: An Aretaic Theory of Law." Scroll down to last Wednesday for an abstract.
University College, London, Colloquium in Legal and Social Philosophy: Professor Seana Shiffrin (UCLA), 'What's wrong with compelled association?'. Here is a taste:
Roberts v. United States Jaycees held that it was constitutionally permissible for Minnesota to require the Jaycees, as a public accommodation, to desegregate and to admit women. Sixteen years later, Boy Scouts of America v. Dale held that it was constitutionally impermissible for New Jersey to require the Boy Scouts, as a public accommodation, to remain partly desegregated and to retain an openly gay Scoutmaster. It is no surprise that Dale caused gnashing of teeth by those who applauded Roberts v. Jaycees: the Court’s commitment to integration seemed all too limited. Women counted; gays and lesbians did not. This analysis may be a partly accurate diagnosis of Dale’s resolution, but it does not fully capture what is troubling about Dale. From a First Amendment perspective, both Jaycees and Dale should have occasioned even greater dental damage.
Those who support Roberts v. Jaycees, especially liberals, should have been disturbed by Dale, not entirely because of its outcome, but because the reasoning of Dale and the debate between the justices was foreshadowed by Justice Brennan’s majority opinion in Jaycees. The opinions in Dale, and in particular the dissenting opinions of the liberal justices, follow the lead of Justice Brennan. In so doing, they reflect and forward a message-centered view of freedom of association that, while familiar, is importantly and unpalatably incomplete.
In this Essay, I will argue that Jaycees was correctly decided but that Justice Brennan’s majority opinion reflects and has reinforced a messagecentered approach to freedom of association that denigrates its value and implicitly distorts and underplays its intimate connection to freedom of speech. A parallel mistake occurs in a common articulation of the objection to certain forms of compelled speech. Drawing upon a core, but underemphasized, aspect of liberalism, I will re-fashion the case against compelled speech in a way that concomitantly provides a stronger foundation for freedom of association. Specifically, the fundamental wrong of compelled speech in cases such as West Virginia State Board of Education v. Barnette, which found the compulsory recitation of the Pledge of Allegiance unconstitutional, does not depend on any external effect, in particular on outsiders possibly misunderstanding a person’s compelled speech as his own. It has more to do with the illicit influence compelled speech may have on the character and autonomous thinking process of the compelled speaker, and with illicit and disrespectful governmental efforts, however fruitless, to exert such influence.
Northwestern University, Constitutional Theory Colloquium: Charles Lawrence, Georgetown, "Forbidden Conversations: On Race, Privacy and Community". Here is a taste:
This article considers the subject of my silence, the relationship between the constitutional injury of racial segregation and the privatization of education. When I speak of privatization here I do not only mean the flight to private schools, or the corporatization of school systems, or the politics of school vouchers,4 although these are all symptoms of the larger problem I wish to explore. The larger problem is something I will call the privatization of care and concern for and conversation about the education of our children. I believe that increasingly public policy makers and individual parents alike think and speak about children’s right to equal educational opportunity as if that project were primarily about giving parents the chance or “liberty” to be consumers in the education market on behalf of their own children. The decisions about how to educate our children (meaning the children in our nuclear family)—where we will school them, who their classmates will be, what curriculum they will be taught—are thought of as private, protected by our constitutionally protected liberty to raise our children as we see fit. When my colleague asks about a good school for his son he is not engaging me in a conversation about what school is best for his children and mine, much less for the poor black children who live in D.C. When parents search for a good school for their children, they do not see the project as collective, as about how we will engage the political process as a community to determine what is best for all our children and see to it that they get it.
Fordham University School of Law: Grainne De Burca; European University Institute, Visiting Professor, New York University School of Law, "The European Constitution: In Search of Europe's International Identity?".
Thursday, March 3
University of Texas School of Law: Akhil Amar, America's Constitution: A Guided Tour. Here is a taste:
- This book has tried to offer a comprehensive account of America’s Constitution, introducing the reader both to the legal text (and its consequences) and to the political deeds that gave rise to that text. Surprisingly enough, virtually nothing else in print aims to do this. There is of course a vast outpouring of superb work on the Constitution. But within the legal literature, most books and articles focus on some specific aspect of constitutional law—executive power, judicial review, free speech, or what have you—and make no effort to encompass the constitutional system as a whole. Many law-trained authors concentrate on Supreme Court decisions, thereby privileging the United States Reports over the United States Constitution. Other law books are dense treatises aimed only at legal professionals. While political scientists routinely analyze Congress, the presidency, and the judiciary, they, too, rarely ponder the Constitution as a whole. True, historians have offered rich accounts of the Founding era and its colorful personalities. Yet these chroniclers have devoted less attention to the Constitution as a legal text, and what work they have done on the document often focuses only on the original version framed at Philadelphia. Rarely do they carry the story forward to include all the amendments over the next two centuries.* Finally, there are a few general classroom textbooks about the Constitution, most of which are distillations of conventional wisdom pitched at an average ninth grader. In the preceding pages I have aimed higher, targeting undergraduates, law students, graduate students, history buffs, civil libertarians, opinion leaders, politicians, judges, lawyers, teachers, professors, and general-interest readers.
Yale Law, Economics, & Organization Workshop: Mark Roe, Harvard/Law, Delaware's Politics. Here is a taste:
Delaware makes the corporate law governing most large American corporations. Since Washington can take any, or all, of that lawmaking away, a deep conception of American corporate law should show how, when, and where Washington leaves lawmaking authority in state hands, and how it affects what the states do.
The interest groups and ideas in play in Delaware are narrow, those in Congress wide. Three key public choice results emanate from that observation. First, interest groups powerful enough to dominate Delaware lawmaking forgo a winner-take-all strategy because state-level losers can call for federal action and either ally there with new interest groups or appeal to ideas not in play in Delaware. Second, the major statelevel players usually want to confine federal authority in making corporate law, because a local deal cuts in fewer players; a federal deal splits the pie with outsiders. Third, we can delineate the space in which the states have room to maneuver and where they risk federal action.
It’s when Delaware acts first—as it often can because the federal agenda is large and Delaware’s small—that it gains most of its discretion vis-à-vis the federal authorities. When it moves first, especially when its two main players¾managers and investors¾agree on what to do, those two players largely determine American corporate law’s initial content. Federal authorities might then change the state-made result, and players and ideologies absent in Delaware but big in Washington affect the federal result. Those new players and ideas give the original Delaware players reason to resist federal action. Doctrines that limit federal effort—corporate law’s principle that the incorporating state should govern its corporations’ internal affairs, for example—are public-regarding justifications for deferring to interests that prevail on the state level. But when Delaware cannot act first—either because media saliency puts the matter on the federal agenda or because its primary players disagree—then Delaware loses its dominance.
I then analogize the relationship between Delaware and Congress to that between federal agencies and Congress. Federal agencies have discretion and first-mover advantages, but their independence even when wide is confined, ending when they provoke Congress. So it is with Delaware.
The interstate race is overrated as the chief structural determinant of American corporate law. Without taking account of how Congress and Delaware interact, we cannot see core characteristics of American corporate law. And to understand that federal-state relationship, we must grapple with the how the interest groups and ideas in play in Delaware differ from those in Congress.
Stanford Law & Economics: Alan Sykes (University of Chicago Law School), "Public vs. Private Enforcement of International Economic Law". Here is a taste:
This paper develops a positive theory of the rules regarding standing and remedy in international trade and investment agreements. In the investment setting, the paper argues that a central objective of investment treaties is to reduce the risks confronting private investors and thereby to lower the cost of capital for capital importing nations. This objective requires a credible government-to-firm commitment (or signal) that the capital importer will not engage in expropriation or related practices. A private right of action for money damages is the best way to make such a commitment. In the trade setting, by contrast, importing nations have no direct interest in reducing the risks confronting exporters of goods and services, and will desire to make market access promises more secure only if such behavior facilitates reciprocal benefits for their own exporters. Consequently, commitments in trade agreements are best viewed as government-to-government rather than government-to firm. The parties to trade agreements can enhance their mutual political welfare by declining to enforce commitments that benefit politically inefficacious exporters, and can most cheaply do so by reserving to themselves the standing to initiate dispute proceedings – a right to act as a “political filter.” The paper also suggests why governments may prefer to utilize trade sanctions rather than money damages as the penalty for breach of a trade agreement.
Boston University School of Law: Lewis Kornhauser (NYU), "Contingency and Control: A Theory of Contracts".
Florida State University School of Law: Nancy Staudt, Washington University-St. Louis.
George Mason University School of Law: Iliana Ilieva, GMU School of Law Levy Fellow, Law and Economics in Mutualfundland (with D. Bruce Johnsen).
George Washington University IP Series: David Nimmer, "Codifying Copyright Comprehensibly".
Georgetown Workshop on Transnational Legal Issues: Laurel Terry, Dickinson Law School
"WTO, GATS, and the Regulation of Transnational Law Practice".
Yale Legal Theory Workshop: Walter Benn Michaels, University of Illinois (English).
Friday, March 4
UCLA School of Law: Albert Yoon, Northwestern University Law School, "Offer-of-Judgment Rules and Civil Litigation: An Empirical Study of Insurance Litigation in the East"
Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law: Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : Christopher Tung (Hong Kong), Climate Change Action and Sustainable Development in China.
Georgetown International Legal Theory Colloquium: Rosa Ehrenreich Brooks, U. of Virginia School of Law, "Failed States, or The State as Failure?".
