Revised Spring Speaker Schedule

This is the revised schedule for speakers for the remainder of Spring 2008 (note, some people have been moved around):

3/19, 12:40 p.m.: James Sloan, Lecturer in Law, University of Glasgow

3/25, 3:40 p.m.: David Wilkins, Kirkland & Ellis Professor of Law, Harvard (campuswide lecture)

3/26, 12:40 p.m.: David Wilkins, Kirkland & Ellis Professor of Law, Harvard (faculty colloquium)

3/31, 3:40 p.m.: Yifat Holzman-Gazit, College of Management, Israel

4/2, 12:40 p.m.: Reza Dibadj, Professor of Law, USF

4/9, 12:40 p.m.: Hadar Aviram, Professor, Hastings

4/16, 12:40 p.m.: Tony Sebok, Professor, Cardozo Law School

4/21, 3:40 p.m.: Adam Scales, Professor, Washington & Lee Law School

4/23, 12:40 p.m.: Benjamin Spencer, Professor, Washington & Lee Law School

All events will be in the ARC.

Mattei and Nader on "Plunder" and the Rule of Law

Ugo Mattei and Laura Nader (Professor of Anthropology, UC Berkeley) have just published "Plunder: When the Rule of Law is Illegal" (Wiley-Blackwell, 2008). Here is the abstract:
"Plunder examines the dark side of the Rule of Law and explores how it has been used as a powerful political weapon by Western countries in order to legitimize plunder -- the practice of violent extraction by stronger political actors victimizing weaker ones. Mattei and Nader provide global examples of plunder: of oil in Iraq; of ideas in the form of Western patents and intellectual property rights imposed on weaker peoples; and of liberty in the United States. They challenge traditionally held beliefs in the sanctity of the Rule of Law by exposing its dark side, and ultimately dare to ask the paradoxical question -- is the Rule of Law itself illegal?"
Ugo will be presenting the book on March 31 at the Italian Academy, Columbia University; on April 1 at the Yale Law School and then at the Yale Department of Anthropology; on April 2 at the Boston University Law School; and April 3 at the Harvard Law School.

Leib and Mark on Electoral College Reform

Ethan Leib and Hastings 3L Eli Mark have posted a commentary entitled "Democratic Principle and Electoral College Reform," 106 Mich. L. Rev. First Impressions 105 (2008). Leib and Mark argue that invoking "high-minded" democratic principles in the context of state-based Electoral College reform is inappropriate; such an enterprise is inevitably political. Here's the link: http://michiganlawreview.org/firstimpressions/vol106/leibmark.pdf.

Park on the Purpose of the Confrontation Clause

Roger Park has published a symposium piece called "Is Confrontation the Bottom Line?," at 19 Regent L. Rev. 459 (2006-07)(available from HeinOnline). In it, he argues that the Supreme Court would be better off trying to identify the underlying goals of the Confrontation Clause instead of simply saying (in essence) that "the purpose of confrontation is confrontation."

Little on State Law and the Fourth Amendment

Rory Little has filed an amicus brief with the United States Supreme Court on behalf of the American Bar Association in Virginia v. Moore, No. 06-1082. The question presented in Moore is "whether it is unreasonable to arrest a person when there is probable cause to believe that a minor offense has been committed, but state law prohibits an arrest for that offense unless there are circumstances that would reasonably support arrest (such as danger or likelihood of non-appearance)?" Rory's brief is posted at http://www.scotusblog.com/.

Carrillo on David Carlson's "Sovereign Selves"

Jo Carrillo has published a review of David J. Carlson's Sovereign Selves: American Indian Autobiography and the Law in Vol. 25 of the Journal of Law and History (2007). Here is the link: http://www.historycooperative.org/journals/lhr/25.2/br_34.html

Leib on Supermajoritarianism and Interpretation

Ethan Leib has published an article called "Why Supermajoritarianism Does Not Illuminate the Interpretive Debate Between Originalists and Non-Originalists," 101 Nw. L. Rev. 1905 (2007). Here is the abstract:

John McGinnis and Michael Rappaport have made multiple contributions over the last decade to many important legal and political debates with their careful attention to the design and desirability of supermajoritarian rules in our practices of self-government. But they have gone too far. In "A Pragmatic Defense of Originalism," they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. This most recent piece of their project simply does not work. In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules. And, finally, I argue that nothing about provisions subject to supermajoritarian agreement justifies, without more substantial argument, an originalist interpretative regime. In the final analysis, supermajoritarianism notwithstanding, we are left to debate the merits of originalism on the same terms as before McGinnis and Rappaport's current intervention. It may very well be that our Constitution is a great and desirable document, but nothing about its supermajoritarian genesis necessarily makes it so or requires us to follow only its original meaning.

Here is the link: http://www.law.northwestern.edu/lawreview/v101/n4/1905/LR101n4Leib.pdf

Lee on the Legality of the NSA Wiretapping Program

Evan Lee has published an article titled, "The Legality of the NSA Wiretapping Program," which appears at 21 Tex. J. Civ. Lib. & Civ. Rts. 1 (2006)(available from HeinOnline). The article argues that Article II authorizes the Executive Branch to engage in such wiretapping, but that Congress has validly regulated such surveillance by way of the Foreign Intelligence Surveillance Act, and therefore that the program is illegal.

Schiller on the Interaction of Courts and Agencies During the New Deal

Reuel Schiller has posted an article to SSRN titled, "The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law," which will be published in the Michigan Law Review at 106 Mich. L. Rev. 399 (December 2007). Here is the link: http://ssrn.com/abstract=1026721. Here is the abstract:

The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt's appointees to the federal bench changed administrative law so as to dramatically diminish the role of the judiciary in the administrative process. The New Dealers espoused what I will call a "prescriptive" vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model of judicial deference that would be both emulated and reacted against as administrative law developed during the rest of the twentieth century.

Keitner on the Use of International and Foreign Law Sources in U.S. Adjudication

Chimene Keitner has posted a paper to SSRN titled, "International and Foreign Law Sources: Siren Song for U.S. Judges?" It was written as an issue brief for the American Constitution Society and can be viewed at http://ssrn.com/abstract=1028313. Here is the abstract:

Professor Keitner addresses the growing debate over the use of foreign and international law sources by U.S. judges engaged in constitutional adjudication. She begins by summarizing the attitudes towards international law sources exhibited by individual justices in the American legal system, noting that "one's opinion about the potential relevance of foreign and international law sources . . . depends in no small part on one's view of the role of judges in a constitutional democracy." Professor Keitner then examines the public opposition to the citation of foreign law sources in Lawrence v. Texas and Roper v. Simmons, which manifested itself in proposed legislation that would constrain how judges could interpret cases and prohibit the consideration of international law sources. Finally, Professor Keitner identifies three principled objections to the use of foreign and international law sources in constitutional adjudication (categorizing them as as institutionalist, instrumentalist, and inherentist objections), and responds to each in turn. Professor Keitner concludes, "Participating in international judicial dialogue should be viewed as a means of strengthening, not weakening, our commitment to the democratic values embodied in the U.S. Constitution."

Carrillo on Popular Legal Culture in the Work of Lawrence Friedman

Jo Carrillo has published an article titled, "Links and Choices: Popular Legal Culture in the Work of Lawrence M. Friedman," 17 S. Cal. Interdisc. L. J. 1 (2007). Here is the abstract:

In 1989, Lawrence M. Friedman published Law, Lawyers and Popular Culture. Based in part on James Willard Hurst’s idea that markets create a social aggregate of behavior that shapes law, Friedman’s article offered one of the earliest arguments for the use of popular culture as a source of material for the study of law. According to Friedman, popular legal culture (a social aggregate of opinion about law) was both shaped by law and had the power to shape law. Thus, legal culture (opinions people hold about law), popular culture (mass generated opinions, norms and values held by people), and popular legal culture (mass generated opinions, norms, and values about law and lawyers)—because they represented public opinion—could provide a rich trove of information about how law is regarded by consumers of the legal system. But, Friedman warned, accessing this information required more than just a claim of influence; it required a social theory. To that end, Friedman proposed a three-pronged social theory for the study of law and popular culture. His theory turned on three ideas: (1) explanations about law exist both inside and outside the legal system; (2) boundaries of law are porous and permeable to exchanged information; and (3) law is a dependent variable in a greater social system of other dependent variables. This paper considers Friedman’s social theory and places it into a broader context of scholarship on the same topic.

Kennedy Talk Postponed

The talk by Harvard Professor David Kennedy has been postponed. A new date has not yet been set.

David Kennedy to Speak at Hastings

David Kennedy, Manley O. Hudson Professor of Law at Harvard, will be speaking on Thursday, Nov. 1 from 2.30-4 in Room J on his new book, "Of War and Law." Professor Kennedy is the first in a new series of Global Lectures presented by the International Programs Office and the Hastings International and Comparative Law Society.

Professor Kennedy is a prolific and controversial scholar in the field of international law, and his new book published by Princeton University Press argues for a radically neo-realist approach to the laws of war.

Professor Kennedy's research uses interdisciplinary materials from sociology and social theory, economics and history to explore issues of global governance, development policy and the nature of professional expertise. He is particularly interested in the politics of the transnational regime for economic policy making. Kennedy has been particularly committed to developing new voices from the third world and among women in international affairs.

Prof. Kennedy served as Chair of the Graduate Committee and Faculty Director of Graduate and International Legal Studies from 1991-1997. He has advised a number of educational institutions on their law and graduate programs, including Brown University, the University of Quebec Lavalle and the Monterey Institute of International Studies. Professor Kennedy has lectured at numerous universities and institutes, and has been a Visiting Professor at New York University in 1999, at the University of Paris (X) in 1995-1998, 2001-2002, and 2005-2006; at the University of Toronto in 1998 and 1999 and at the University of Paris (II) in the spring of 1998. He was a Visiting Scholar at the School of Oriental and African Studies, University of London 2000-2001.

Professor Kennedy is the author of a number of books, including "The Canon of American Jurisprudence." He was just named Vice-President of Brown University in charge of their International Programs. He will leave Harvard in January for his new post.

There will be a book signing and a reception following Professor Kennedy's lecture.

Field on Form and Substance in Subchapter K

Heather Field has just published an article entitled, "Fiction, Form, and Substance in Subchapter K: Taxing Partnership Mergers, Divisions, and Incorporations," 44 San Diego L. Rev. 259 (2007). Here is the abstract:

The tax consequences of substantively equivalent partnership mergers, divisions and incorporations can vary dramatically depending on the form of the transaction. This disparate treatment arises because the tax analysis of these partnership transactions inconsistently adheres to the “form” of the transaction and limits the use of legal “fictions.” This part-form, part-fiction approach distorts parties’ incentives about whether and how to undertake such transactions and can make the transactions less efficient, all without materially advancing other policy goals. This result is exacerbated by non-tax business exigencies that restrict parties’ abilities to implement certain transaction forms and by the increase in “formless” transactions. In order to treat substantively equivalent transactions similarly, this Article proposes the adoption of a uniform regime in which the tax consequences of partnership mergers, divisions, and incorporations are determined based on one of three legal fictions elected by the parties, regardless of the form in which the transaction is implemented. The proposed approach not only remedies the problem of disparate treatment and addresses the policy concerns raised by the existing part-form, part-fiction regime, but also rationalizes the use of form and fiction in the tax analysis of substantively equivalent partnership transactions.

Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020735

Leib on Friendship and Public Policy

Ethan Leib has just published an essay in Policy Review titled, "Friends & the Law: Can Public Policy Support the Institution of Friendship?". Here is Ethan's description of the essay: "As you might imagine, this essay is a 'popularized' and unfootnoted attempt to rehearse arguments I have tried to make in 'Friendship & the Law' <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=928707> and (with Dan Markel and Jen Collins) in 'Criminal Justice and the Challenge of Family Ties.' <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=933427> So if you have found yourself unable to slug through the hard-core academic versions of these arguments, you might just enjoy the exposure in this easily-digestible form. But even for the six of you that have made your way through the academic versions, I have tried to supplement some of my thinking in this later essay."