This fall, the Law Library will be hosting a series of fall research seminars focused on helping law students prepare for their supervised analytical writing (SAW) assignment by demonstrating the emerging technologies in the field of legal research.  Students will learn about helpful (and not so helpful) legal databases, how to search for information and how maintain legal research records.  Lecturers will showcase subscription based as well as open source tools for legal research.  These seminars are open to the whole law school community.  The first event is:

Emerging Technologies in Documenting and Tracking Your Research
Wednesday, September 17, 2008; 3:00 - 4:00 p.m. - Room 112

Participants will learn how to manage their electronic research using tools such as RSS feeds, Zotero, Google, etc.  Cookies and light refreshments will be served.

If you were unable to attend this event, please contact Reference Librarian Camilla Tubbs for information on these important research tools.

 Take a look at this recent article.

Ayres, Ian and Nalebuff, Barry J., "Life-Cycle Investing and Leverage: Buying Stock on Margin Can Reduce Retirement Risk" (May 27, 2008). Available at SSRN: http://ssrn.com/abstract=1139110

Abstract: By employing leverage to gain more exposure to stocks when young, individuals can achieve better diversification across time. Using stock data going back to 1871, we show that buying stock on margin when young combined with more conservative investments when older stochastically dominates standard investment strategies - both traditional life-cycle investments and 100%-stock investments. The expected retirement wealth is 90% higher compared to life-cycle funds and 19% higher compared to 100% stock investments. The expected gain would allow workers to retire almost six years earlier or extend their standard of living during retirement by 27 years.

Douglas Kysar (YLS) and Bernadette Meyler (Cornell) have a new paper up at SSRN.  The paper is also published in the UCLA Law Review: Kysar, Douglas A. and Meyler, Bernadette A., "Like a Nation State" . UCLA Law Review, Vol.55, No. 6, 2008.

 Here's the abstract:

Abstract:     

Using California's self-consciously internationalist approach to climate change regulation as a primary example, this Article examines constitutional limitations on state foreign affairs activities. In particular, by focusing on the prospect of California's establishment of a greenhouse gas (GHG) emissions trading system and its eventual linkage with comparable systems in Europe and elsewhere, this Article demonstrates that certain constitutional objections to extrajurisdictional linkage of state GHG emissions trading systems and the response that these objections necessitate may be more complicated than previously anticipated. First, successfully combatting the Bush Administration's potential claim that state-level climate change activities interfere with a federal executive position of withholding binding domestic GHG reductions in advance of a multilateral agreement including key developing nations, will require demonstrating that the executive branch is not acting with congressional support and has, furthermore, declared its position too informally to constitute an exercise of any of the president's independent constitutional powers. Second, state efforts to link GHG emissions trading systems with those of other nations may well take them into territory abutting that which is constitutionally impermissible under the foreign affairs and Foreign Commerce Clause doctrines. Finally, state efforts to integrate with other trading schemes or to otherwise protect the integrity of their own trading schemes must be carefully constructed lest they invite challenge as being discriminatory or overreaching, in light of more conventional dormant Commerce Clause constraints on state regulation.

In a new paper posted at SSRN and post to Balikinization, Professor Heather Gerken argues that equality and, therefore, the equal protection argument, not liberty is the proper and mpst promising paradigm for future gay rights litigation.  Here is the abstract to the paper:

   
This essay - penned as a tribute to Larry Tribe - argues that equality, not liberty, represents the most promising framework for future gay-rights litigation. The paper begins by arguing that the stylistic differences between the two opinions in Lawrence v. Texas signal something important about the shortcomings of the liberty paradigm. As Larry Tribe has written, a liberty claim is won or lost based on what level of generality a court uses to describe it. We thus see Justice Kennedy, with his penchant for abstract prose, describing the case at a high level of generality in vindicating Lawrence's challenge to Texas' sodomy law. But note that the opinion's fluid prose ends precisely when the opinion moves from the general to the specific. Kennedy's high-flown abstractions are ill-suited to addressing facts on the ground. If Justice Kennedy is too abstract in his prose, Justice Scalia is too concrete. Scalia's groundedness makes him the wittiest dissent in cases involving sex, for everything funny about sex lies in our discomfort with the gap between the particular and the abstract. But Scalia's insistence that the case is about nothing more than the right to engage in a particular type of sex act ensures that his opinion, too, misses something important about what is at stake in Lawrence.

Having outlined the shortcomings of the two opinions, the remainder of the essay argues that equal protection, not liberty, is the right paradigm for future gay-rights litigation. Equal protection is pitched at the right level of generality; it captures what we are fighting about. Larry Tribe may find it easy to toggle between liberty and equality when writing about substantive due process. Like Justice Brandeis, he is "the master . . . of both microscope and telescope." In the parts of his work where he connects the Court's liberty decisions, he shows us constellations where the rest of us saw only a random collection of stars. In other parts of his work, he offers a granular view, describing the relationship between liberty and equality as a double helix. For everyday judges and lawyers, however, doctrinal analysis starts with doctrinal categories. It thus seems inevitable that Tribe's double helix will be split. And if courts must choose between these admittedly intertwined paths, we will get closer to the vistas Tribe describes if judges follow the path of equal protection, not liberty. That is because what is a stake in these debates is not whether all humans should enjoy a right, but whether gays and lesbians, in particular, should do so, and that is an idea better capture by the equal protection paradigm. Somewhere between Justice Kennedy's high-flown right to intimate relations and Justice Scalia's down-and-dirty discussion of sodomy is the status of the LGBT community. Equal protection begins with that issue while allowing the Court to write with a worthy tradition behind it.

 is the title of a new paper by Alan Schwartz and Robert E. Scott (Columbia) posted on SSRN.  Here's the paper and here's the abstract:

Market damages - the difference between the market price for goods or services at the time of breach and the contract price - are the best default rule whenever parties trade in thick markets: they induce parties to contract efficiently and to trade if and only if trade is efficient, and they do not create ex ante inefficiencies. Courts commonly overlook these virtues, however, when promisors offer a set of services some of which are not separately priced. For example, a promisor may agree to pay royalties on a mining lease and later to restore the promisee's property. In these cases, courts compare the cost to the promisor of providing the service that was not supplied to the increase in the market value of the promisee/buyer's property had the promisor/seller performed. When the cost of completion is large relative to the "market delta"- the increase in market value - courts concerned to avoid "economic waste" limit the buyer to the market value increase. This concern is misguided. Since the buyer commonly prepays for the service at the ex ante market price, a cost of completion award actually has a restitution element - the prepaid price - and an expectation interest element - the market damages. The failure to recognize the joint nature of cost of completion damages causes courts to deny these damages more frequently than they should. In this paper, we argue that the unappreciated virtues of market based damages justify removing the courts' discretion to deny them no matter how high they appear to be. The rule that denies buyers market damages induces excessive entry into these service markets. Moreover, buyers are under-compensated when they prepay and cannot recover the price paid for the breached services but instead are restricted to the market delta. As a result, too few buyers contract ex ante for the relevant service and surplus maximizing contracts are forgone. Finally, sellers often can take actions in the interim between making the contract and the time for performance of the service that would reduce the service cost to manageable proportions. Sellers are less likely to take these precautions if they are required to pay buyers only the market delta rather than the full performance cost that their actions could have avoided.

 Another fascinating paper from Professor Hathaway, "The Continuing Influence of the New Haven School."  Originally published in 32(2) Yale Journal of International Law in 2007.  Here is the abstract:

This Commentary examines the deep and abiding influence of what has been called the New Haven School of international law. It considers the connection between the past and the present the ideas first formulated by Myres S. McDougal and Harold D. Lasswell more than a half-century ago, and those, both near and far, whose work they have influenced.

Professor Hathaway has posted a paper originally published in the journal International Organization in 1998 (v. 52, no. 3) on SSRN, entitled "Positive Feedback: The Impact of Trade Liberalization on Industry Demands for Protection".

Here is the abstract:

This article proposes a theory of dynamic industry preferences and strategies to explain variation in industries' demand for trade protection over time. This theory shows how the characteristics of industries affect their demand for trade policy and how, in turn, trade policy transforms industry characteristics. An important implication of this theory is that trade liberalization tends to reduce, rather than increase, industry demand for protection over the long term. The article begins by developing a static model of industry decision making that illustrates how producers faced with a reduction in trade barriers weigh the costs and benefits of political action and economic adjustment. It then explains how the strategic choices of an industry are determined by key industry characteristics that evolve over time in response to changes in trade policy and market conditions. In particular, it demonstrates that reductions in trade barriers may have a positive feedback effect that dampens rather than amplifies domestic protectionist sentiment. To test this model, the article examines the dramatic postwar transformation of three industries that have historically demanded and received extensive import protection: the footwear, textile, and apparel industries. The article concludes with an assessment of the model and a discussion of its possible implications for our understanding of the politics of trade policy.

Nice review in the Times Literary Supplement by John Habgood, the former Archbishop of York:

A book which begins with the sentence “Evil makes us Human” must surely compel attention. This is no ordinary account of what is usually meant by the problem of evil, where the main emphasis is on justifying the ways of God to man. Instead, Paul W. Kahn’s aim is to explore the nature of evil itself. He interprets it, not just as doing or experiencing bad things, but as “a way of being in the world”. Evil, he claims, is about making ourselves the source of our own meaning, a meaning inevitably negated by death, the certainty of which gives urgency and depth to the way life is lived. It is this consciousness of our mortality, and the refusal to accept its implications, which can lead to the worship of false gods. Ascribing ultimate value to what is essentially nothing at all results in what he calls “a pathology of the will”. Personal evil is essentially about wilfulness rather than reason, nor can it be subsumed within our rational understanding. Evil in this sense, as part of our humanity, is not a fashionable concept, but we have good reasons to recognize it, not least in ourselves.

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Three recent law review articles by members of the faculty: 

Ian Ayres and Gideon Parchomovsky,  Tradable Patent Rights, 60 Stan. L. Rev. 863 (2007)

Daniel Markovits, Luck Egalitarianism and Political Solidarity, 9 Theoretical Inquiries L. 271 (2008)

Judith Resnik, No Daubert Hearing Necessary: The Extraordinary Expertise of Margaret Berger, 16 J.L. & Pol'y 6 (2007)

Dan Kahan, Cultural Cognition as a Conception of the Cultural Theory of Risk

Abstract: Cultural cognition refers to the tendency of individuals to form beliefs about societal dangers that reflect and reinforce their commitments to particular visions of the ideal society. Cultural cognition is one of a variety of approaches designed to empirically test the cultural theory of risk associated with Mary Douglas and Aaron Wildavsky. This commentary discusses the distinctive features of cultural cognition as a conception of cultural theory, including its cultural worldview measures; its emphasis on social psychological mechanisms that connect individuals' risk perceptions to their cultural outlooks; and its practical goal of enabling self-conscious management of popular risk perceptions in the interest of promoting scientifically sound public policies that are congenial to persons of diverse outlooks.

Professor Siegel has posted on SSRN a version of a paper to be published in the Duke Law Journal.  The paper is entitled: "The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument". Here is the abstract:

"This Lecture investigates the social movement dynamics that produced woman-protective antiabortion argument. The Lecture explores the political conditions under which leaders of the antiabortion movement began to supplement or even to supplant the constitutional argument abortion kills a baby with a new argument, abortion hurts women - a claim that achieved widespread public notice with the Supreme Court's 2007 decision in Gonzales v. Carhart.

The Lecture's genealogy of a social movement claim begins in the 1980s, when members of the antiabortion movement asserted that abortion subjects women to regret, trauma, and psychological illness, a condition they termed post-abortion syndrome (PAS). My story then follows changes in the abortion-harms-women claim as it was transformed from PAS - a therapeutic discourse initially employed to dissuade women from having abortions and to recruit women to the antiabortion cause - into woman-protective antiabortion argument (WPAA), a political discourse forged in the heat of social movement conflict that sought to persuade audiences outside the movement's ranks in electoral campaigns and in constitutional litigation.

Whereas PAS grew up as a mobilizing discourse deployed primarily among women volunteers and clients in the antiabortion movement's crisis pregnancy network - a context in which abortion-hurts-women testimonials had important expressive functions - WPAA took shape in political contexts in which the abortion-hurts-women argument had important strategic functions. In the 1990s, antiabortion advocates sought to explain to audiences that ambivalently supported the abortion right why women would benefit from legal restrictions on abortion. As they did so, they fused PAS claims and stories with traditional gender-paternalist argument, justifying restrictions on women's agency as needed to protect women from male coercion and to free women to be mothers. As a political discourse designed to rebut feminist, pro-choice claims, WPAA came to internalize elements of the very arguments it sought to counter - fusing the public health, trauma, and survivors idiom of PAS with the idiom of the late twentieth-century feminist and abortion-rights movements. As the Lecture shows, social movement mobilization, conflict, and coalition each played a role in the evolution and spread of the woman-protective antiabortion argument, in the process forging new and distinctly modern ways to talk about the right to life and the role morality of motherhood in the therapeutic, public health, and political rights idiom of late twentieth-century America.

The Lecture concludes by considering the new gender-paternalist justifications for abortion restrictions discussed in Carhart. With the spread of woman-protective antiabortion argument and its seductively modern justifications for using law to impose motherhood on women, Justice Kennedy and the nation will once again have to decide - not only how to balance the liberty of the pregnant woman against the state interest in protecting potential life - but more fundamentally, about the kind of women that constitutional guarantees of liberty and equality protect. This question is far from abstract, as South Dakota once again considers whether to adopt an abortion ban, justified by fetal-protective and woman-protective argument, in the 2008 elections."

 More great information from the Law Library of Congress, this time on the State Secrets Privilege.  Here you will find links to several articles, statements, and other material by Louis Fisher regarding the privilege in this decade.

Professor Listokin recently posted a new paper entitled "Does Shareholder Voting Maximize Stock Market Value."  Here is the abstract:

"This paper examines the relation between shareholder voting and stock market value from a novel empirical perspective. If voting maximizes value, then the outcome of close proxy contests should not have a systematic effect on stock prices; price setters will anticipate that voting aggregates information efficiently and will build this expectation into the price of the stock before the voting outcome is announced The paper shows, however, that close dissident victories are associated with significant positive movements in stock prices, while close management victories are associated with negative stock price effects. This suggests that voting outcomes favor management rather than maximizing value, with important policy ramifications. Viewed from a regression discontinuity (RD) design perspective, the study provides unique evidence that dissident control of decision making causes increases in stock value."