Education Moulds

Charles Taylor will be giving the Kyoto Prize lecture at the University of San Diego on Friday, March 20. Here at the details:

Dr. Charles Margrave Taylor
Democracy and Exclusion: The Darker Side of Political Identity

Democracy generates pressures toward exclusion as well as inclusion. In a democracy, being in the majority has decisive importance. So a society is forced to define a collective identity to which a majority can subscribe. But, what happens to those whose difference threatens the dominant identity – immigrants, cultural minorities, or those who cherish a non-standard version of the dominant identity?

University of San Diego Shiley Theatre
Friday, March 20, 2009
10:30AM
The Symposium is free, but you must register in advance at: www.kyotoprize.org

Source: Lawrence Solum

Source: Lawrence Solum

Bradley W. Miller (University of Western Ontario – Faculty of Law) has posted Morals Laws in an Age of Rights: Hart and Devlin at the Supreme Court of Canada on SSRN.  Here is the abstract:

Constitutional challenges to morals laws – criminal laws intended to discourage self- and other-corrupting acts – have become a staple on the dockets of many constitutional courts. In this paper I examine justifications offered for morals laws that are thought to limit constitutional rights, using the Canadian decision R. v. Butler (1992) as an example. While Butler's holding on the constitutionality of "morality-based" legislation – and its underlying conception of morality – is famously muddled, critics of Butler have inadequately attended to – or have overlooked altogether – key distinctions of political and moral philosophy that are necessary for understanding morals legislation. The first step toward a sound reading of Butler – and toward a sound account of the place of moral judgment in constitutional decision-making – is to attend to a distinction in the judgment between conventional and "merely" conventional morality and to the debate between HLA Hart and Lord Devlin that inspired it. I examine Butler through the lens of the Hart/Devlin debate, and then outline an argument for the place of moral evaluation in legislation that prima facie limits constitutional rights.

Source: Lawrence Solum

Karl S. Okamoto (Drexel University – Earle Mack School of Law) has posted Teaching Transactional Lawyering on SSRN. Here is the abstract:

Law schools are giving more and more attention to transactional lawyering. Once relegated to a single course on “business planning,” law school curriculums at every level of law school are being pushed to include a new focus on teaching future practitioners how to do deals. In doing so, law schools are discovering that the skills required to be a proficient transactional lawyer are often different from those needed by litigators or judges. Therefore the curriculum that teaches students how to “think like a lawyer” falls short when the goal becomes to teach them to “think like a deal lawyer.” This article describes a novel transactional lawyering course designed to serve as the “keystone” course in a transactional lawyering curriculum.

Source: Lawrence Solum

Joanna L. Grossman and Gillian Thomas (Hofstra University – School of Law) have posted Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act's Capacity-Based Model (Yale Journal of Law & Feminism, Vol. 19, No. 2, 2009) on SSRN. Here is the abstract:

This article considers the gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. While there is no inherent conflict between pregnancy and work, women in physically strenuous or hazardous occupations, from nursing to law enforcement, routinely confront situations in which they are physically unable to perform aspects of their job or, though physically able, they seek to avoid certain tasks or situations because of the potential risks to maternal or fetal health. The Pregnancy Discrimination Act of 1978 (PDA) broadly protects against "pregnancy discrimination," but it provides absolute rights only to the extent a pregnant woman is able to work at full capacity, uninterrupted by pregnancy's physical effects. To the extent that the law grants the pregnant worker with temporary physical limitations "affirmative" rights, such as the right to workplace accommodation, it is only on a comparative basis – that is, only to the extent those rights already are provided to "similarly situated" temporarily disabled employees. In this way, pregnancy continues to inhibit equal employment opportunity for millions of women, three decades after the PDA's passage.

After briefly examining the medical literature documenting the conflicts between pregnancy and certain kinds of work, as well as the law as applied to pregnant workers who are fully capable or fully incapable due to the effects of pregnancy or childbirth, we consider the predicament of women in physically demanding fields whose work capacity is partially diminished by pregnancy. We focus here on the problem of access to "light-duty" work – temporary alternative job assignments that accommodate the pregnant worker's limitations. Without such accommodation, the pregnant firefighter or home health care aide whose doctor directs her to avoid heavy lifting or other tasks is faced with a Hobson's choice: ignore medical advice and continue to perform all job duties, or stop working altogether, usually sacrificing wages and other benefits for several months. We describe the limits of the existing PDA framework for protecting these pregnant workers, and suggest litigation strategies for maximizing pregnant workers' rights under current law. These include re-framing the "similarly situated" analysis for disparate treatment challenges to light-duty policies, and exploring the untapped potential of the disparate impact theory in the light-duty context.

Source: Lawrence Solum

Carlton F. W. Larson (University of California, Davis – School of Law) has posted Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit on SSRN. Here is the abstract:

This Symposium Essay examines the Supreme Court's Second Amendment decision in District of Columbia v. Heller. Specifically, the Essay examines four exceptions to the right to bear arms that the Court specifically approved: laws disarming felons; laws disarming the mentally ill; laws prohibiting the possession of firearms in sensitive places; and laws regulating the commercial sale of firearms. The Essay argues that these exceptions cannot be completely justified on originalist grounds, at least under the form of originalism that the Court is likely to employ. The Essay further argues that the exceptions cannot be justified if strict scrutiny is the applicable standard of scrutiny. Accordingly, some lesser standard of review of firearms regulation must apply.

And from the paper:

Originalists have also emphasized a distinction between constitutional interpretation, which uses originalist methods to determine the linguistic meaning of constitutional text, and constitutional construction, which employs other methods to generate operative meaning in situations in which the text is unclear.14 As Professor Lawrence
Solum, a leading proponent of this distinction, has emphasized, the Heller Court may well have
used originalist methods of interpretation to determine the core meaning of the Second
Amendment, while leaving the issues addressed by the exceptions to the more challenging task
of constitutional construction.15 Under this view, there is little conflict between the bulk of the
Court’s opinion and the exceptions, because they can be justified under different, although
complementary, methodologies.

This is an intriguing and fascinating argument. I am not persuaded, however, that this
explains exactly what the Court had in mind in Heller. The Court’s claim about the need to
“expound upon the historical justifications for the exceptions”16 in a later case seems inconsistent
with a stark interpretation/construction dichotomy. Moreover, Justice Scalia, the author of the
opinion, has not generally embraced such a distinction; his methods are much closer to
identifying “original expected applications,” working at a very specific level of detail.17
Accordingly, this Part analyzes the exceptions as a Scalian originalist would, by seeking to
identify historical predicates and justifications for the exceptions announced in Heller.

As I understand it, Larson's observation is that Scalia's opinion in Heller suggests that Scalia believes that historical analysis could be used to determine what regulations are consistent with the "right to keep and bear arms."  Here is the paragraph that Larson quotes:

Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment , one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879) , our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

I'm not quite sure what Scalia meant here, but I agree with Larson that this passage suggests that Scalia may believe that an originalist methodology could resolve issues like the consistency of restrictions of gun ownership or possess by felons.  And I agree that Justice Scalia sometimes seems to rely on "original expectations" in a way that is inconsistent with his emphasis on "original public meaning."  One possibiity is that Scalia's position might be reconstructed as an attempt to develop an originalist approach to constitutional construction–where type-type identity relationships between contemporary practices and historical practices would operate as a constraint on constitutional construction.  This would make historical practice a key factor in constitutional construction.  (I hope readers will forgive me for not elaborating on remarks that are undoubtedly too sketchy and perhaps cryptic.)

Read Larson!  Highly recommended.

Source: Lawrence Solum

Lumen N. Mulligan (Michigan State University College of Law) has posted Federal Courts Not Federal Tribunals on SSRN. Here is the abstract:

The Court has employed inferred-cause-of-action doctrine to foster the rights of individuals, from injured workers to female college applicants to defrauded investors and targets of racial discrimination. Although the question of whether the federal courts ought to infer causes of action from federal statutes is an old chestnut in the federal-courts field, a new basis for barring such a practice has arisen, requiring fresh attention to the Court's inferred-cause-of-action doctrine. This new position asserts that inferring a cause of action is not merely poor judicial policy but extra-jurisdictional under either 28 U.S.C. – 1331 or Article III. Borrowing a phrase from Justice Scalia, I coin this new jurisdictional view the "tribunals position." I argue that even assuming a judicial policy weighing against inferring causes of action is wise; the move to treat this policy issue as a jurisdictional question is not. First, I trace the shadowy history of the tribunals position from dissents in the 1940s to a majority opinion in the October 2007 term. Next, I contend that – 1331 jurisdiction, contrary to the key assumption of the tribunals position, is best understood as a function of federal rights, not causes of action. I further contend that originalist-based interpretations of Article III that challenge the propriety of inferring causes of action are (even on intra-originalist grounds) unpersuasive, because they fail to account for the distinction between constitutional interpretation and constitutional construction. I conclude that the still nascent attempts to construe a policy preference against inferring causes of action as a jurisdictional matter illustrate the broader point that matters of prudence are ill-conceived as jurisdictional questions.

And from the text:

[The] distinction between interpretation and construction sheds a
great deal of light upon the Article III variation on the tribunals position. I
will assume that the proponents of the tribunals position have correctly
interpreted Article III’s original public meaning as embedded within the
concepts of writ pleading. But unless proponents of the view are willing to
take the hard stance that Article III prohibits the use of any scheme of civil
procedure other than writ pleading (which they generally are not),246 the proponents of the Article III tribunals position fail to recognize that they
face a question of construction. To be explicit, if Article III is best
interpreted (1) against a background of writ pleading notions in force at
the time of the founding but (2) as not prohibiting the adoption of other
forms of civil procedure, then a question of construction arises as to how
the courts are to apply these background writ-pleading concepts into our
modern procedural scheme. This conclusion follows because the semantic
meaning of the text of the Constitution simply does not answer the
question of how to apply writ-pleading concepts into a post-merger-of-
law-and-equity court system. Any attempt to address this question is
necessarily supplementing constitutional text, not recognizing historical
meaning; as such, the endeavor is one of construction not interpretation.247
Moreover, because this endeavor is one of construction, the grounds of
legitimacy that flow to originalist interpretation are not present. A
proponent of the Article III version of the tribunals position, then, must
provide an independent normative basis for the view that modern courts
are constrained by Article III from inferring causes of action unless the
plaintiff suffered an injury that would have been remediable by way of a
common law writ.

Very interesting!

Source: Lawrence Solum

Ned Snow (University of Arkansas at Fayetteville – School of Law) has posted Proving Fair Use: Burden of Proof as Burden of Speech on SSRN. Here is the abstract:

Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair use burden of proof is repugnant to the fair use purpose. Adding to this repugnancy is the fact that the burden is the product of a mistake. For over a century, courts recognized that speakers of fair use expression should not bear this burden. Then modern courts mistakenly interpreted fair use as excusing, rather than defining, infringement, and as a result, they placed the burden on the party seeking to invoke the excuse. The mistaken nature of this interpretation becomes apparent when examining the jurisprudence that gave birth to fair use and the statute that governs its present application: both indicate that the burden should lie with rights-holders rather than fair users. Today, the misplaced burden of proof exacts a high cost of speech: rights-holders are exploiting the burden with internet efficiency against individual fair users. This Article therefore proposes that the burden of proof should once again lie with rights-holders.

Source: Lawrence Solum

The
U.S. Institute of Peace and the Comparative Constitutions Project (CCP) are
pleased to announce the launch of constitutionmaking.org,
a site intended to provide people engaged in constitutional drafting access
to essential materials, insights, and expertise. Given your experience and
interest in constitution drafting, we would like to invite you to take
advantage of this useful resource. 

Constitutionmaking.org
was created by a team of scholars and drafters with the guiding principle
that those writing constitutions should have access to (1) a variety of
options for constitutional design and (2) analysis of the consequences of
design choices.  To this end, the site features three basic components:

• OPTION REPORTS. 
  This section includes a series of reports on a wide-ranging set of
  topics that are central to historical and contemporary constitutions.
   These reports provide sample provisions and information on trends
  and patterns in the use of different constitutional provisions.
   The data and analysis for these reports come from an original set
  of data on the content of constitutions that the researchers have been
  collecting since 2005.
• CONSTITUTONAL
  REPOSITORY.  The site also includes a
  growing repository of constitutional texts.  The researchers have
  identified the major constitutional changes for each independent state
  since 1789 and have collected 95% of the documents associated with these
  amendments and replacements.  Some of these documents are under
  copyright, but the repository will include all publicly available
  materials. 
• FORUM. 
  A third component of constitutionmaking.org
  features regular commentary from scholars on issues and events
  surrounding constitutional design. The goal is the same as that for constitutionmaking.org
  more generally: to connect scholars and drafters.  We endeavor to
  bring to light two sorts of information: (1) reports of constitutional
  deliberation (and challenges therein) from various corners of the world,
  and (2) reports of noteworthy research on the subject. The ideas are
  serious but the tone is direct and lively.  Recent posts have
  covered recent constitutional activity in Bolivia,
  Venezuela, Thailand, and Burma.

We hope
that constitutionmaking.org
will grow as a place for discussion and interaction between experts engaged
in constitution-making processes, and we invite you to share comments,
queries, and materials.

Most
Sincerely,

Tom Ginsburg
Zachary Elkins
Alex Thier

Source: Lawrence Solum

Alison Bailey (Illinois State University) has posted On Intersectionality and White Feminist Philosophy on SSRN. Here is the abstract:

Feminism and academic philosophy have had lots to say to one another. Yet part of what marks feminist philosophy as philosophy is our engagement with the intellectual traditions of the white forefathers.

In this working paper I want to explore some possible reasons why white feminist philosophers have failed to deeply engage the radical work being done by non-Western women, U.S. women of color and scholars of color outside of the discipline. My conversation begins with intersectionality, which for feminists working outside of philosophy is a predictable point of departure; but as a white feminist philosopher I have a specific reasons for starting here. The fact that intersectionality is, at once, such a widely recognized strategy for making visible women of color's issues and concerns in academic and policy discussions, and so neglected by philosophers is telling.

I want to invite philosophers to think more seriously about intersectionality and other pluralist approaches as strategies for calling attention to whiteness of philosophy in general and feminist philosophy in particular. I want us to consider what feminist philosophy would be like if women of color's writing, experiences, and communities drove philosophical inquiry. Since most philosophers are unfamiliar with intersectional methodologies, I begin with a basic explanation of the foundational claims of this method.

Next, I explore some reasons why white feminists working in philosophy may be resistant to this method. I identify both disciplinary and personal reasons for this hesitancy and argue that intersectionality serves as a useful strategic tool for examining white authority in the emergent feminist canon. Finally, I explore the role intersectional thinking might play in creating a feminist critical race philosophy by outlining four projects that I think will challenge and enrich feminist work in the discipline.

Recommended.

Source: Lawrence Solum