Legal Theory Blog

Gardner on the Evil of Privitization

John Gardner (University of Oxford - Faculty of Law) has posted The Evil of Privatization on SSRN. Hre is the abstract:

This is my contribution to a workshop (held at the University of Warwick on 16 May 2014) about Alon Harel’s book Why Law Matters (Oxford 2014). It focuses on chapter 3 of the book, 'The Case Against Privatization'. I share Alon's sentiments on this subject but resist his main arguments in the book. Since I co-edit the series in which the book appeared, I do not plan to publish anything arising from this workshop. But for whatever it is worth I see no problem with posting my talk here more or less as I presented it at Warwick (adding, at pp 9-10, a rejoinder to Alon’s oral response).

Highly recommended.

 

Gonzales on the Appointments of Alito & Roberts to the Supreme Court

Alberto Gonzales (Belmont University - College of Law) has posted In Search of Justice: An Examination of the Appointments of John G. Roberts and Samuel A. Alito to the U.S. Supreme Court and Their Impact on American Jurisprudence (William & Mary Bill of Rights, Vol. 22, No. 3, 2014) on SSRN. Here is the abstract:

During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court Judges Roberts and Alito to the Supreme Court. This Article explains how Judges Roberts and Alito were evaluated, and our assessment of how they would perform on the Court. The Article then examines whether the Bush Administration correctly predicted how these two men would decide cases before the Court by reviewing some of their most significant opinions to date.

We begin with an explanation of the process used in developing our recommendation to the President followed by a thorough examination of the factors we weighed (such as political considerations and confirmation challenges). The Article includes a thorough, though certainly not exhaustive, review of the circuit court opinions of each man. This early body of work is then compared to their most recent work on the Supreme Court in certain key areas of the law. There is a remarkable, though not unexpected, consistency between Justices Roberts’s and Alito’s jurisprudence on the circuit courts and on the Supreme Court. Based on this comparison, the Article concludes that the Bush Administration successfully anticipated that Chief Justice Roberts and Justice Alito would decide cases using a consistent set of principles including judicial restraint, respect for precedent, and statutory interpretation based on plain language.

Conference Announcement: "Authority in a Transnational Age" at Queen Mary, University of London

The Centre for Law and Society in a Global Context at the Department of Law, Queen Mary, University of London is hosting a Modern Law Review seminar in November 2013 that may be of interest to your readers.

The theme is 'Authority in a Transnational Age', and is being held on 8 and 9 November 2013.

Details, including the program, is here: http://www.law.qmul.ac.uk/events/items/93264.html.

Booking information is here: http://eshop.qmul.ac.uk/browse/extra_info.asp?compid=1&modid=2&deptid=34&catid=1&prodid=410

ASPLP in New Orleans Today

If you are arriving in New Orleans today for the AALS Annual Meeting, check out the American Society for Political & Legal Philosophy, which meets today. The meetings are in the Hilton Riverside, Third Floor, Belle Chasse Room, starting at 10:30 a.m. & continuing until 5:15 p.m.

Annual Meeting of the American Society for Political and Legal Philosophy
New Orleans, January 6, 2010
Hilton New Orleans Riverside, 2 Poydras Street, Belle Chasse room, Third Floor.

I. Getting to the Concept of the Rule of Law: 10:30 a.m.-12:15 p.m.

Principal paper (philosophy): Jeremy Waldron, New York University
Commentator (law): Robin West, Georgetown University
Commentator (political science): Corey Brettschneider, Brown University

II. Maintaining or Restoring the Rule of Law after September 11, 2001: 1:30 p.m.-3:15 p.m.
Principal paper (political science): Benjamin Kleinerman, Michigan State University
Commentator (law): Curtis Bradley, Duke University
Commentator (philosophy): Lionel McPherson, Tufts University

III. Building the Rule of Law after Military Interventions: 3:30 p.m. - 5:15 p.m.
Principal paper (law): Jane Stromseth, Georgetown University
Commentator (political science): Tom Ginsburg, University of Chicago
Commentator (philosophy): Larry May, Vanderbilt University

Reception: 6:30 p.m.-8:30 p.m.

Conference Announcement: Judicial Review at Herbrew University of Jerusalem

The Hebrew University of Jerusalem
Conference: "JUDICIAL REVIEW: WHY, WHERE AND FOR WHOM?"
May 31- June 1, 2009

http://law.huji.ac.il/eng/iruim.asp?cat=1486&in=1485

Here is a description:

Judicial review of legislation is a controversial institution. It is controversial whether we should have it and, if we should have it, why. Advocates and opponents of judicial review design sophisticated arguments for and against it as if these arguments apply to all places and situations equally. Opponents of judicial review challenge its democratic legitimacy while advocates argue that it is essential for the functioning of a thriving liberal democracy. But perhaps the answer to the question of whether and why we need judicial review is that we should have it for different reasons in different places, times and situations. This conference will explore this possibility.

Participants in the conference will explore judicial review of legislation and its rationales from the viewpoint of their respective legal systems. We invite people representing seven jurisdictions belonging to diverse legal traditions and backgrounds (Germany, France, United Kingdom, Israel, Eastern European jurisdictions, International and the US). The main aim of the conference is to identify and discuss the rationale(s) most appropriate for each one of these jurisdictions. We wish to explore from the perspective of each jurisdiction the justification which best explains the legal doctrine in that jurisdiction. We hope to learn from this comparative exercise what rationales underlie the willingness of different legal systems to establish judicial review of legislation and in what ways these rationales influence legal doctrine.

Sunday, May 31 2009
09:00-09:30 Welcome and coffee
09:30-10:45 Prof. Louis Michael Seidman, Georgetown University, "Acontextual Judicial Review"
11:00-12:15 Dr. Rivka Weill, Interdisciplinary Center of Herzliya School of Law, "Sui Generis? The Hybrid Israeli Constitutional Experience"
12:30-14:00 Lunch
14:00-15:15 Prof. Christoph Moellers, Goettingen University, "Report on a Missing Debate: Scope and Legitimacy of Judicial Review in German Constitutional Law"
15:30-16:45 Dr. Oliver Lembcke, Friedrich Schiller University of Jena, "Authority and Judgement. The Case of the German Constitutional Court"
17:00-18:15 Prof. Wojciech Sadurski, European University Institute, Florence "Judicial Review in Central and Eastern Europe: Rationales or Rationalizations?"
19:00-20:30 Dinner

Monday, Jun 1 2009
09:00-09:30 Welcome and coffee
09:30-10:45 Mr. Nicholas Barber, University of Oxford, "Reflections on the Nature of Public Law as Found in British Constitutional Scholarship"
11:00-12:15 Prof. Marie Claire Ponthoreau, Montesquieu University - Bordeaux IV, "What are the Justifications for French Judicial Review? A Cultural Approach for a Deep Understanding of National Justifications"
12:30-14:00 Lunch
14:00-15:15 Prof. Eyal Benvenisti, Tel Aviv University, "Toward Global Checks and Balances"
15:30-16:45 Prof. Alon Harel, Hebrew University of Jerusalem, "The Easy Core Case for Judicial Review"
16:45-17:15 Concluding Remarks

Interdisciplinary Legal Scholarship Today at the AALS

I'll be speaking this morning at what promises to be a very interesting session of the Section On Scholarship--9:00 a.m. at the Marriott.  The program was inspired by a blog post by Brian Tamanaha: Why the Interdisciplinary Movement in Legal Academia Might be a Bad Idea (For Most Law Schools).  See you there!

Here are the details:

Section on Scholarship
Marina Salon E, South Tower/Level 3, San Diego Marriott Hotel & Marina

Interdisciplinary Legal Scholarship, the Demography of the Legal Academy, and the Future of Straddling the Academic-Professional Divide

An argument has been joined recently over whether interdisciplinary studies, interdisciplinary scholarship, and interdisciplinary scholars might be too expensive for most law schools – more specifically, non-elite law schools. Except perhaps for those law students who will practice corporate law at top law firms and those who will enter the academy – a very small percentage will do as professionals. Moreover, interdisciplinary studies are expensive, and students at non-elite, tuition-drive schools must add that cost to their already heavy financial burden. Plus, there are always opportunity costs: the money spent on interdisciplinary studies could be spent on skills education, live-client clinics, or placement services. And finally, the JD/Ph.Ds who are hired as part of this movement to interdisciplinary are, as a rule, even more removed from the realities of the practice of law than the average faculty member, thus widening the gap between the law school classroom and the demands of the legal profession.

The recent doubts about interdisciplinary studies can be viewed as just one more manifestation of the difficulty of both providing the training of professionals and being a serious academic discipline that law schools have faced since becoming departments of universities. Law schools and their faculties have, with varying degrees of success, straddled the internal divide between the two missions. At one time, clinical education and the status of clinicians on faculties was the arena which this division played out. Today, as faculties at virtually all law schools have become more academic and ambitious in terms of scholarship, the tension between the two missions has intensified. Interdisciplinary studies and interdisciplinary scholars – particularly those who have Ph.Ds – are just the natural outgrowth of the more general trend toward academification and away from the concerns of the practice of law.

Beyond scholarship that is of direct relevance to the beach and bar, how much should and can law students be taxed to subsidize the production of knowledge about law? Should legal studies remain within law schools, or should they migrate to legal studies departments, which would in turn train the legal studies professoriate with their own doctoral degree (probably multidisciplinary rather than interdisciplinary)? Or are legal studies best undertaken in law schools that are training lawyers, and if so, what does that say about the type of faculty that law schools should hire? Is there a case for making a law degree a bachelors (undergraduate) degree rather than a doctoral (postgraduate degree) – as almost every other nation does – and would this solve the straddle problem?

The Section will put on a panel discussion on these issues. Professor Tamanaha will state his thesis that interdisciplinary studies may be a bad idea for non-elite law schools. Thereafter, members of the panel will respond to Professor Tamanaha and to each other. Finally, the discussion will be opened to the floor.

Business Meeting at Program Conclusion.

Speakers

Alexander Lawrence A. - Moderator
Chen Jim - Speaker
Dorff Michael B. - Speaker
Kittrie Orde F. - Speaker
Lobel Orly - Speaker
Ribstein Larry E. - Speaker
Schwarzschild Maimon - Speaker
Solum Lawrence B. - Speaker
Tamanaha Brian Z. - Speaker

Conference Announcement: ALEA in San Diego

The American Law and Economics Association (ALEA) will hold its annual conference on May 15-16, 2009 in San Diego.  The conference brings together law professors and economists interested in economic analysis of law and it will have sessions covering most areas of law.

To submit a paper, go to ALEA's website, www.amlecon.org and click on "Annual Meeting" on the left-hand side of the screen.  The deadline for submissions is January 9, 2009.  There is no submission fee, but you must join ALEA--to do so, go to "Membership Services" on the ALEA website.

Conference Announcement: Environmental Jusitce at Oxford

8th Global Conference
Environmental Justice and Global Citizenship
Friday 10th July - Sunday 12th July 2009
Mansfield College, Oxford

Call for Papers
Environmental Ethics, Sustainability and Education

This inter-disciplinary and multi-disciplinary conference aims to explore the role of ecology and environmental thinking in the context of contemporary society and international affairs, and assess the implications for our understandings of fairness, justice and global citizenship. 'Environmental justice' is conceived broadly as reflecting not only justice in the context of human communities but also towards other species, ecosystems, habitats, landscapes, succeeding generations and the environment as a whole.

The 8th Global Conference on Ecological Justice and Global Citizenship will explicitly explore environmental ethics and sustainability.  We are looking for papers which investigate and question the relationships of power and equity in the environmental context.  Among these relationships, our environmental ethic has a central role, not only in terms of explaining current attitudes towards the environment, nature and natural resource use, but also the potential role it may play in shaping the future and enabling us to live more sustainably.  In particular papers are sought which explore the role of education in shaping a modern environmental ethic, and the inherent challenges which accompany that role.

Papers, presentations, reports and workshops are invited on any of the following indicative themes:

    * Environmental ethics
          o New and emerging thinkers and trends of thought on environmental ethics
          o The role and place of environmental protest in shaping our ethic
          o Indigenous environmental ethics: relations between humans and 'nature'
          o Property rights and private interests vs. pooling of human and ecological resources
          o The need for greater multi- and trans-disciplinary collaboration
    * Sustainability
          o Engaging citizens in the processes of achieving increased sustainability
          o The role of civil society: communities taking responsibility for the local environment
          o Corporate Social Responsibility: transparency and accountability
          o Achieving responsible consumption and production
          o The role of NGOs in environmental and sustainability awareness raising
    * Environmental education
          o Teaching citizenship, identity and ethics
          o Designing the ecological curriculum
          o Integrating the concept of 'sustainability' and environmental awareness and education in the primary, secondary and higher education sectors
          o The integration of distinct disciplines: The role of behavioural science in environmental education

300 word abstracts should be submitted by Friday 6th February 2009. If your paper is accepted for presentation at the conference, an 8 page draft paper should be submitted by Friday 5th June 2009.

300 word abstracts should be submitted to all Organising Chairs; abstracts may be in Word, WordPerfect, or RTF formats, following this order:

author(s), affiliation, email address, title of abstract, body of abstract

We acknowledge receipt and answer to all paper proposals submitted. If you do not receive a reply from us in a week you should assume we did not receive your proposal; it might be lost in cyberspace! We suggest, then, to look for an alternative electronic route or resend.

Organising Chairs:

Erika Techera
Senior Lecturer
Centre for Environmental Law
Macquarie Law School
Macquarie University NSW 2109
Australia
E-mail: [email protected]

S. Ram Vemuri
School of Law and Business
Faculty of Law, Business and Arts
Charles Darwin University
Darwin, NT 0909,
Australia
E-mail: [email protected]

Rob Fisher
Network Founder and Leader
Inter-Disciplinary.Net
Freeland, Oxfordshire,
United Kingdom
E-mail: [email protected]

Perspectives are sought from

    * people engaged in actor network theory, agriculture and agricultural economics, the built environment disciplines, conflict resolution and mediation, critical geography, environmental studies, human development and ecology, industrial relations and design, law and the legal professions, philosophy and ethics, political science and international affairs, public policy and advising, social sciences, sociology of science, theology, urban studies and western European studies
    * people in the public and private sectors who are involved in planning and project development, policy-making and implementation, and negotiation and mediation at national and international levels
    * people in Governmental, inter-governmental and non-governmental organisations, voluntary sector bodies, environmental charities and groups, business and professional associations

All papers accepted for and presented at the conference will be published in an ISBN eBook. Selected papers may be invited to go forward for development into 20-25 page chapters for publication in a themed ISBN hard copy volume. Multiple themed volumes are in print and/or in press from previous meetings of the project.

The conference is sponsored by Inter-Disciplinary.Net as part of the 'Probing the Boundaries' programme of research projects. It aims to bring together people from different areas and interests to share ideas and explore various discussions which are innovative and exciting.

For further details about the project please visit:
http://www.inter-disciplinary.net/ptb/ejgc/ejgc.htm
For further details about the conference please visit:
http://www.inter-disciplinary.net/ptb/ejgc/ejgc8/cfp.htm

Conference Announcement: Empirical Legal Studies at Berkeley

BUILDING THEORY THROUGH EMPIRICAL LEGAL STUDIES
Center for the Study of Law and Society
University of California, Berkeley
Friday, April 24, 2009

Empirical Legal Studies is often associated with sophisticated quantitative work and less often associated with theory.  The Center for the Study of Law and Society at the University of California, Berkeley is holding a one day conference to highlight and to foster discussion about the ways in which empirical legal studies (both quantitative and qualitative) can be used to generate, test, and elaborate socio-legal theory. Speakers from both the legal academy and the social sciences will present ongoing theoretically-informed empirical work and discussants, as well as the audience, will be invited to engage in a productive dialog about the intersection of empirical legal studies and law and social science theory. We also hope to foster connections across disciplines and among scholars in this area that will continue long after this initial conference. The conference will feature a Keynote Address by Richard Lempert, Stein Distinguished University Professor Emeritus of Law and Sociology at the University of Michigan and former director of the Social and Behavioral Sciences Division at the National Science Foundation. The presentations that follow are organized into three panels: Litigation, Complaint Mobilization, and Inequality; Law and Organizations; and Judicial and Agency Politics. The full program and abstracts of the papers that will be presented are attached.

The conference is open to all scholars interested in the nexus of empirical legal studies and socio-legal theory. There is no fee to attend but we do require registration by February 1, 2009 in order to plan for lunch and the closing reception. To register, to view the complete program, for contact information, and for information on hotels, travel, etc., please visit the conference website at http://www.law.berkeley.edu/3265.htm

Conference Program

Continental Breakfast 8:00 – 8:45

Welcome 8:45 – 9:00
Lauren Edelman, Director, Center for the Study of Law and Society
Christopher Edley, Dean, UC Berkeley School of Law

Session I:  Keynote Address 9:00 – 10:00 Richard Lempert, University of Michigan (emeritus)

Coffee Break 10:00 – 10:30

Session II: Litigation, Complaint Mobilization, and Inequality 10:30 – 12:00
John Hagan, Northwestern University (Discussant/Moderator)
Calvin Morrill, U.C. Irvine, Lauren Edelman, U.C. Berkeley, Karolyn Tyson, University of North Carolina, and Richard Arum, N.Y.U. “Law and Race in U.S. High Schools: Legal Mobilization and Perceived Rights Violations among Youth.”
Sandra Levitsky, University of Michigan “‘What Rights?’:  The Construction of Political Claims to American Health Care Entitlements”
Margo Schlanger, Washington University “EEOC Employment Discrimination Injunctions: Trends and Travails

Lunch Break 12:00 – 1:30

Session III:  Law and Organizations 1:30 – 3:00   
Mark Suchman, Brown University (Discussant/Moderator)
Alexandra Kalev, University of Arizona, and Tristin Green, Seton Hall “Organizational Structures and Relational Discrimination: New Avenues for Linking Macro and Micro Mechanisms of Stratification”
Lauren Edelman, U.C. Berkeley, Linda Krieger, U.C. Berkeley & University of Hawaii, Scott Eliason, University of Arizona, Catherine R. Albiston, U.C. Berkeley, and Virginia Mellema, Equal Employment Opportunity Commission “When Organizations Rule: Judicial Deference to Institutionalized Employment Structures”
Orly Lobel, University of San Diego, and Yuval Feldman, Bar Ilan University “The Incentives Matrix: Experimental Studies of the Comparative Effectiveness of Enforcement Systems”

Coffee Break 3:00 – 3:30

Session IV: Judicial and Agency Politics 3:30 – 5:00
Christopher Zorn, Pennsylvania State University (Discussant/Moderator)
Anne Joseph O'Connell, U.C. Berkeley “Vacant Offices in the Administrative State:  Delays in Filling Top Executive Agency Positions, 1977-2005”
Daniel Ho, Stanford University, and Kevin Quinn, Harvard University “The Empirical Dimensions of the Standing Doctrine and Judicial Voting”
Stephanie Lindquist, University of Texas, and Pamela Corley, Vanderbilt University “Strategies of Judicial Review”

Closing Reception 5:00 – 7:00

AALS Panel Announcement: Hot Topic Panel on the Financial Crisis

The Financial Crisis: Hot Topics Panel, AALS Annual Meeting
Friday, January 9, 8:30-10:15 am.

A discussion of the causes, short-term solutions, and longer-term implications of the current financial crisis.

Moderator: Theodore P. Seto (Loyola Law School – LA)

Speaker 1: Lauren E. Willis (Loyola Law School – LA): The Role of Mortgages

Professor Willis has written extensively on problems in the subprime mortgage market and consumer financial transaction regulation more generally. In speaking engagements in the U.S., the E.U., and South Africa, she has discussed regulation of the U.S. home mortgage market, predatory lending, financial literacy education, behavioral decisionmaking, and other consumer law topics. She was one of a select group of law professors that conferred with members of the Federal Reserve Board in crafting new mortgage regulations that will take effect in 2009. Before joining the Loyola Law faculty, she practiced at the Civil Rights Division of the U.S. Department of Justice, litigating lending discrimination matters.

Professor Willis will discuss the crisis at the retail level – the evolution from credit rationing to risk-based pricing of mortgages, the effects of risk-based pricing on consumers’ mortgage decisions, the financial and psychological antecedents of borrower demand for mortgages posing a high risk of foreclosure, and the marketing and sales practices that respond to and create that demand.  She will further explain why prior law governing mortgage transactions and even law enacted to address subprime lending problems were ineffective.

Speaker 2: William K. Black (University of Missouri-Kansas City School of Law): The Role of Securitization and Financial Instruments

Professor Black is an Associate Professor of Economics and Law at UMKC. In October 2009, he testified before the relevant Senate committee on the role of financial derivatives in the ongoing crisis. Before joining the academy, he served as litigation director of the Federal Home Loan Bank Board, deputy director of the Federal Savings and Loan Insurance Corporation, Senior Vice President and General Counsel of the Federal Home Loan Bank of San Francisco, Senior Deputy Chief Counsel, Office of Thrift Supervision, and deputy director of the National Commission on Financial Institution Reform, Recovery and Enforcement. He is author of The Best Way to Rob a Bank is to Own One: How Corporate Executives and Politicians Looted the S&L Industry (University of Texas at Austin Press 2005), has written extensively on financial sector issues, and recently helped the World Bank develop an anti-corruption initiative.

Professor Black will cover the securitization of home mortgages and the development of derivatives that contributed to the financial crisis. He will describe the legal and regulatory actions that allowed for these developments and will explain why the securitization of heterogeneous subprime mortgages and the existence of an over-the-counter credit default swap market are fundamentally inconsistent with a stable financial system.

Speaker 3: Arthur E. Wilmarth, Jr. (George Washington University Law School): The Role of Financial Regulation

Professor Wilmarth is chair of the AALS Section on Financial Institutions and Consumer Financial Services and a member of the editorial board of the Journal of Banking Regulation. He has authored numerous articles in the fields of banking law and American constitutional history and co-authored a book on corporate law. In 2005, the American College of Consumer Financial Services Lawyers awarded him its prize for the best law review article published in the field of consumer financial services law during the previous year. He has testified before committees of the U.S. Congress, the California legislature, and the D.C. Council on bank regulatory issues.

Professor Wilmarth will speak on the role of large financial conglomerates and the failure of the various regulators (especially the OCC, the OTS, the Fed and the SEC) to control the risk-taking of those conglomerates. He will cover the failure of capital regulation and the evident failure of on-site examination teams at major financial institutions.