Call for abstracts: Edited volume on law and social economics Reply


Call for abstracts for edited volume

Law and Social Economics

To be edited by Mark D. White, College of Staten Island/CUNY

Planned for inclusion in the “Perspectives from Social Economics” series from Palgrave Macmillan

By its very nature, law is a social enterprise concerned with values such as justice, dignity, equality, and efficiency, but the economic approach to law (or law and economics) focuses on the last goal to the exclusion of the rest. Social economics emphasizes the importance of ethical values to economic theory, practice, and policy, but it has engaged very little with legal studies (or law and economics).

In 1993, Steven Medema published his article “Is There Life Beyond Efficiency? Elements of a Social Law and Economics” in the Review of Social Economy, in which he laid out various ways in which social economics could contribute to the economic analysis of law. In the twenty years since his article appeared, however, few have picked his baton, much less run with it.

This book is an attempt to rectify this situation. Proposals for chapters are welcome on any aspect of law-and-economics on which social economics can make a contribution, and are welcome from economists, legal scholars, and scholars from related disciplines.

Possible topics include:

  • Social-economic approaches to the various categories of legal studies, such as
    • Private law (tort, contract, property)
    • Criminal law
    • Procedure
    • Jurisprudence
  • Methodological critiques of mainstream economic approaches to the law, such as
    • Maximizing conception of individual choice
    • Efficiency criterion for evaluating laws and institutions
    • Application of game theory, behavioral economics, or experimental economics to legal issues
  • Examination of the history of law-and-economics scholarship
  • Suggestion of topics neglected by mainstream law-and-economics

Proposals should include name and affiliations of all authors, tentative chapter title, and abstract, and should be sent to Mark D. White at profmdwhite@hotmail.com by April 30, 2012. Tentatively, first drafts of chapters will be expected by November 30, 2012, with final drafts due by February 28, 2013.

Questioning the use of the Socratic method in law school Reply


Though I don’t teach in a law school (nor have I attended one), I read with great interest the recent Room for Debate feature in The New York Times on the Socratic  method as used in law schools. None of the participants–Guy Uriel Charles, Robin West, Robert Dinerstein, David Wilkins, and Amanda Pustilnik–favors abandoning the method entirely, but rather questions the excessive exclusive reliance on it and the narrow wrange of topics to which it is applied.

Pustilnik’s contribution was my favorite, focusing on the core idea of deep questioning at the heart of the Socratic method, which is also relevant to Charles’ point about the various uses of the term itself. Pustilnik’s point can also address West’s concerns about the Socratic method leading law students to investigate the internal logic of the law without engaging in external critique; used right, it can certainly do both.

This also brings us to Dinerstein’s and Wilkins’ points, that it is not the method itself, but how law professors use it, that determine its value. If it is augmented with other methods and brought to bear on all aspects of legal education–or, I would argue, education in general–the Socratic method (in its most basic and ideal form) is timeless, not only leading students to an answer, but also highlighting how to find it.

Call for papers: Law and literature conference focused on justice and Amartya Sen Reply


Mark D. White

Sen_idea_of_justice From the Law & Humanities blog (and Mai-Linh Hong’s Twitter feed) comes this pre-announcement which should be of interest to our readers (especially the followers of Amartya Sen):

Save the Date/Call For Papers

Third Biennial Literature and Law Conference

TENTATIVE DATE March 30, 2012 (Friday). Please check conference website for confirmation of final conference date—this date will be posted in mid-September.

Conference Location: John Jay College of Criminal Justice (CUNY) (59th Street and 10th Avenue). The conference will take place on the newly expanded John Jay campus, near Lincoln Center in Manhattan. The facilities include a brand new, state of the art conference center.

Conference Organizer and Contact Person: Andrew Majeske, ajmajeske@gmail.com

Theme: The Idea of Justice

This conference aims to bring scholars of literature and law into an interdisciplinary setting to share the fruits of their research and scholarship. Generally this full day conference consists of between 8 and 10 paper panels and roundtables, two talks by prominent speakers, and a post-conference reception. The conference fee will be $75, which will be payable by credit card through a link on the conference website.

Conference Speakers

Amartya Sen, Keynote Speaker: The conference’s keynote speaker is Amartya Sen, winner of the 1998 Nobel Prize in Economics, the Thomas W. Lamont University Professor and Professor of Economics and Philosophy at Harvard University and, until recently, the Master of Trinity College, Cambridge. He has served as President of the Econometric Society, the Indian Economic Association, the American Economic Association and the International Economic Association. He was formerly Honorary President of OXFAM and is now its Honorary Advisor. Of particular interest to this conference is Professor Sen’s celebrated 2009 book, The Idea of Justice. His other books, which have been translated into more than thirty languages, include Identity and Violence: The Illusion of Destiny (2006), The Argumentative Indian (2005), Rationality and Freedom (2002), Development as Freedom (1999), Inequality Reexamined (1992), The Standard of Living (1987), On Ethics and Economics (1987), Resources, Values and Development (1984), Choice, Welfare and Measurement (1982), Poverty and Famines (1981), and On Economic Inequality (1973, 1997) . His research has ranged over a number of fields in economics, philosophy, and decision theory, including social choice theory, welfare economics, theory of measurement, development economics, public health, gender studies, moral and political philosophy, and the economics of peace and war. 

George Anastaplo, Feaured Speaker: The conference’s featured speaker is Professor George Anastaplo from Loyola University School of Law in Chicago, whose life and career been devoted to the idea of justice, both in theory and practice. Professor Anastaplo is the author of more than 15 books, and innumerable articles, including The Constitutionalist: Notes on the First Amendment (1971, 2005), But Not Philosophy: Seven Introductions to Non-Western Thought (2002), The Thinker as Artist: From Homer to Plato & Aristotle (1997), The American Moralist: On Law, Ethics and Government (1992), The Constitution of 1787: A Commentary (1989), The Artist As Thinker: From Shakespeare to Joyce (1983) and Human Being and Citizen: Essays on Virtue, Freedom, and the Common Good (1975). Professor Anastaplo, during his Illinois Bar interview in 1950, took a principled stand against McCarthy era questions asking about his political affiliations, and whether he believed in a right of revolution—he cited the Declaration of Independence to support his view that he and all Americans believe or should believe in such a right. The committee interviewing him was not pleased with his responses, and as a consequence, he has never been admitted to the Bar. Supreme Court Justice Hugo Black, in his dissent in Professor Anastaplo’s case seeking admission to the Illinois Bar (In Re Anastaplo 1961—which Anastaplo lost 5-4), vigorously defended Anastaplo’s position on first amendment grounds and asserted, among other things, that “we must not be afraid to be free”—Justice Black arranged for this quote, and others from his dissent, to be read at his funeral.

Call For Papers and Panels: We invite proposals for papers and panels that address topics that relate the humanities & arts (especially literary texts (broadly conceived)), to this year’s conference theme, the “idea of justice.” Of particular interest are papers and panels that in addition engage aspects of Professor Sen’s book, The Idea of Justice, or that attempt to integrate the theory with the practice of justice, and/or that engage and compare differing notions and perspectives of justice.

CFP Deadline: Please submit abstracts (250 words or less) to Andrew Majeske, ajmajeske@gmail.com, by Friday, January 13, 2012.

Conference Website: More information will be available in September 2011 at http://litandlawjjay.blogspot.com

(This post originally appeared at Economics and Ethics.)

Regulatory Fictions: On Marriage and Countermarriage Reply


I’ve been waiting to read a recent article I discovered in the California Law Review by Columbia law professor Elizabeth F. Emens titled “Regulatory Fictions: On Marriage and Countermarriage”–the abstract follows:

Debates about marriage currently capture much public attention. Scholars have pushed beyond the question of whether gays are worthy of marriage to ask whether marriage is worthy of gays. The present moment of questioning marriage in its current form may be brief. Thus, we should take this opportunity to imagine the widest possible range of alternatives to our current marriage regime—what I call countermarriage regimes. This Essay draws on two unlikely sources of legal innovation to expand our thinking about marriage alternatives: literature and anti-gay law. Literature offers an array of countermarriage regimes, including exploding marriage, threestrikes marriage, line marriage, renewable marriage, and exculpatory marriage. Anti-gay law, if we reimagine it as applying to everyone, prompts us to consider a world without marriage or indeed without any contracts between intimate partners. In addition to opening our minds to countermarriage possibilities, this Essay shows some overlooked affinities between law and literature, in particular how both law and literature may serve as unlikely sources of regulatory innovation.

(I particularly like the irony as using laws banning same-sex marriage as a way to imagine a world without marriage at all.) This promises to be a very interesting piece, and I’d be very interested to hear what others think about it.

Symposium on eminent domain (and Kelo) in Albany Government Law Review Reply


The latest issue of the Albany Government Law Review (4/1, 2011) features a symposium on “Eminent Domain: Public Use, Just Compensation, & ‘The Social Compact,’” with a particular focus on Kelo and its effects of New York:

Introduction: The Judicial Reaction to Kelo, by Ilya Somin

“Fairness and Equity,” or Judicial Bait-and-Switch? It’s Time to Reform the Law of “Just” Compensation, by Gideon Kanner

The Trouble With Eminent Domain In New York, by Norman Siegel, Steven Hyman, and Philip van Buren

Urban Revitalization and Eminent Domain: Misinterpreting Jane Jacobs, by Steven J. Eagle

Moving the Cat Into the Hat: The Pursuit of Fairness in Condemnation, or, Whatever Happened to Creating a “Partnership of Planning?”, by Michael Rikon

Evaluating Economic Development Takings: Legal Validity Versus Economic Viability, by David Schultz

From Slum Clearance to Economic Development: A Retrospective of Redevelopment Policies in New York State, by Amy Lavine

The Rise of Robert Moses and the Fall of New York Constitutional Protections Against Eminent Domain, by Christopher Dunn 

Stacking the Deck: New York’s Unique Approach to Eminent Domain, by Robert McNamara

The EDPL Revised, by M. Robert Goldstein

(Crossposted at Economics and Ethics.)

Ronald Dworkin on recent Supreme Court decisions Reply


Ronald Dworkin has a two-part blog post at The New York Review of Books concerning the recent Supreme Court decisions Arizona Christian School Tuition Organization v. Winn et al and Arizona Free Enterprise Club PAC v. Bennett. (Links point to the blog posts, not the decisions.) 

In the second paragraph of the first post, he gives a wonderful and concise statement of law-as-integrity:

The popular assumption that justices can decide constitutional cases by just consulting the text of that document and the intentions of its eighteenth- and nineteenth-century authors, without relying on their own sense of justice, is simplistic and wrong. Many of the most important constitutional clauses—the First Amendment’s promise of “the freedom of speech,” for instance, its guarantee of “free exercise” of religion, and its prohibition of any religious “establishment”—are drafted in abstract language; justices must interpret those clauses by trying to find principles of political morality that explain and justify the text and the past history of its application. They will inevitably disagree about which principles best satisfy that test, and they will inevitably be influenced, in making that judgment, by their own sense of what a good constitution would provide.

But he criticizes the “conservative bloc” of the Roberts Court on these grounds:

But that does not mean that the justices are free to interpret the abstract clauses of the Constitution to match their own political convictions, whatever these are. In the last few years they have overruled a long series of recent and important precedent decisions and they have reversed several long-standing constitutional traditions. They have flatly prohibited even obviously sensible race-conscious social and educational policies, bolstered government’s support for religion, and progressively narrowed the scope of abortion rights. They have changed the American electoral system to make the election of Republican candidates more likely, for example by guaranteeing corporations a constitutional right to spend as much as they wish denouncing candidates they dislike. As I have argued, these various decisions cannot be justified by any set of principles that offer even a respectable account of our past constitutional history.

That’s what I love about Dworkin, and part of what makes him so much fun to teach: you can agree wholeheartedly with hsi formal jurisprudence but I disagree just as strongly with the way he fleshes it out substantively. (More on this, I hope, in future posts.)

Justice Kennedy on the blogosphere Reply


From Josh Blackman’s blog (cleverly titled Josh Blackman’s Blog), we get Justice Anthony Kennedy’s comments on the legal blogosphere in his testimony before the Appropriations Committee:

We have seen since Justice Breyer and I have been on our Court, a quiet revolution because of IT, information technology. We have a website we run it ourselves. We get 59 million hits a month. There is a study I have seen, I am somewhat skeptical of, we are 12th or 13th of any government agency, 179,000 page hits a day.

I used to read Supreme Court cases over the summer. I would wait for months or years for law review articles. Now there are blogs. There are law professors in specialized areas, information technology, antitrust, that have blogs, that within weeks, days, even hours, they comment on our cases.

Our case law is now part of arguments that attorneys make to distirct and circuit judges within hours after we decide cases.

This has been very efficient. There has been a sea change how accessible our cases are. The system works. It is a quiet revolution. It makes our courts very efficient and very effective.

Make sure you also read Josh’s comments (and watch the video of Kennedy’s testimony) at his blog (Josh Blackman’s Blog, in case you forgot the name), especially regarding Kennedy being the first to use the world “blog” in an opinion.

Pablo Gilabert on “Cohen on Socialism, Equality, and Community” (April 28 at Columbia) Reply


Just passing this along from an email I received this morning–Gilabert seems to have an interestingly nuanced perspective on these issues…

The Columbia University Seminar on Political Economy and Contemporary Social Issues invites you to a talk and discussion with

PABLO GILABERT on “Cohen on Socialism, Equality, and Community.”

The talk will take place on Thursday, April 28th, in the Columbia International Affairs Building, room 1510 at 7:30 p.m.

You are also invited to join us for (optional) dinner at the Faculty House at 6:15 before the talk. Please email your dinner reservation to les2116@columbia.edu.

About the talk:

Is socialism a desirable ideal? What principles ground it? In his last book, Why Not Socialism? G. A. Cohen argues that the socialist ideal is indeed desirable, that we have reason to favor the general implementation of the principles of radical equality of opportunity and community on which it relies. Cohen also considers the issue of the feasibility of socialism.  His agnostic conclusion on this issue is that we do not now know whether socialism is feasible or infeasible, although we can realistically envisage multiple partial approximations and instantiations of its demands. In this talk, Gilabert will focus on Cohen’s discussion on desirability. Although sympathetic to Cohen’s contribution, Gilabert identifies what he takes to be some problems in it and suggests ways to overcome them. He challenges Cohen’s claim that although the principle of radical equality of opportunity is a principle of justice, the principle of community is only a wider moral requirement. He argues that to fully account for the role and weight of considerations of community within the socialist ideal, and to justify the limitations on liberty that they would impose in practice, we have reason to see some of them as more stringent demands of justice. More specifically, he proposes a construal of some of the demands of community as focused on sufficientarian concerns with basic needs and on requirements to protect equal political status and self-respect, and explains how, so construed, the demands of community relate to demands of equality of economic opportunity and to the protection of personal and political liberty.

About the speaker: 

A native of Argentina, Pablo Gilabert is an associate professor of Philosophy at Concordia University, Montreal. He has been an HLA Hart Visiting Fellow at the University of Oxford, a DAAD Fellow at the University of Frankfurt, and a Visiting Fellow at the Australian National University. In 2011-12 he will be Laurence S. Rockefeller Visiting Faculty Fellow at the Center for Human Values at Princeton University. His papers appeared in journals such as The Journal of Political Philosophy, Political Theory, The Philosophical Quarterly, Philosophy and Phenomenological Research, Philosophical Studies, Kant-Studien, The Monist, Social Theory and Practice, and Ethical Theory and Moral Practice, among others. His book From Global Poverty to Global Equality: A Philosophical Exploration, is under contract with Oxford University Press.
Please feel free to forward this email to interested friends and colleagues.

The Columbia Seminar on Political Economy and Contemporary Social Issues was founded in 1971 by Sidney Morgenbesser and Seymour Melman as the Seminar on the Political Economy of War and Peace. It focuses on issues of contemporary concern from interdisciplinary perspectives, integrating philosophy, political theory, and economics. The co-chairs of the Seminar are Carol Gould, Phil Green, and Gary Mongiovi.

Columbia University encourages persons with disabilities to participate in its programs and activities. University Seminar participants with disabilities who anticipate needing accommodations or who have questions about physical access may contact the Office of Disability Services at212-854-2388 or disability@columbia.edu.  Disability accommodations, including sign-language interpreters, are available on request.

Requests for accommodations must be made two weeks in advance.  On campus, Seminar participants with disabilities should alert a Public Safety Officer that they need assistance accessing campus.

Stanley Fish on Elena Kagan’s rhetorical style Reply


In today’s New York Times, Stanley Fish comments on Justice Elena Kagan’s rhetorical style in her dissent in Arizona Christian School Tuition Organization v. Winn (as well as his views on the case itself and his deep admiration and appreciation for Justice Scalia). In  Fish’s opinion, Kagan displays

a style of argument that marks her as someone to reckon with, both inside and outside the Court. And that she does, not by attempting to match Scalia’s sentence-by-sentence pyrotechnics (see for example his scintillating and prophetic dissent in Lawrence v. Texas) but by dismantling the majority’s reasoning piece by piece until there is nothing left standing.

If there is a rhetorical gesture that marks her performance (as biting scorn marks Scalia’s), it is “Oh yeah?” — as in, I see you assert X, but here is evidence, often from your own mouths, that X is a bad or inapposite or silly argument. Her weapon of choice is not the hit-and-run example (that is Scalia’s forte), but the extended example that open up and fills the landscape. To illustrate her point that the majority’s distinction between direct and indirect funding “is one in search of a difference,” she asks us to “imagine that the Federal Government decides that it should pay hundreds of millions to insolvent banks” (imagine that!) but finds itself resisted by taxpayers who don’t want “their hard-earned money to reward irresponsible behavior.”

Suppose further that the government thought to disarm the resistance by allowing banks “to subtract the exact same amount from the tax bill they would otherwise have to pay to the U.S. Treasury.” Would the proposal, she asks, “calm the furor or would most taxpayers respond that a subsidy is a subsidy (or a bailout is a bailout ), whether accomplished by one means or the other?” The question answers itself, but she answers it — “Surely the latter” — and she adds “we would think the less of our countrymen if they failed to see through this cynical proposal.” She doesn’t accuse her fellow justices of endorsing a cynical proposal; she just leaves it there.

Next she takes advantage of, without explicitly naming, her own religious identity: “Suppose a state desires to reward Jews — by say, $500 per year — for their religious devotion.” Would it matter to non-Jewish taxpayers “if the state allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend” directly? And if Jews are too small a sample, how about subsidizing the purchase by Catholics of crucifixes? The state “could purchase the religious symbols in bulk and distribute them … or it could mail a reimbursement check to any individual who buys her own and submits a receipt … or it could authorize that person to claim a tax credit equal to the price she paid.”

“Now really,” she comments with only a bit of tongue in cheek, “do taxpayers have less reason to complain if the State selects the last of these three options?” (Notice that the question is asked in the negative and thus made at once softer and harder.) This time she doesn’t answer the question, but only says quietly (and devastatingly), “The Court today says they do.”

Nothing flashy here. Just a steady unrolling of point after obvious point in a relatively tranquil and moderate prose punctuated by an occasional flaring of amiable wit — “not really,” “what ordinary people would appreciate the Court’s case law also recognizes.” (Sometimes even the Supreme Court rises to the level of common sense.) If I am right, what we are seeing here is the emergence of a powerfully understated style of argument, inexorable without being aggressive, comprehensive without claiming to be so, regnant even when it is on the losing side. I look forward to more of the same.