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Category: Conferences

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If the Law is a[n] ass, what is the state?

Leviathan.jpg

The famous frontispiece to Thomas Hobbes’s Leviathan depicts the head and torso of a long-haired, mustachioed man. Upon close scrutiny, it becomes evident that the man’s torso and arms are composed of tiny individual persons, crowded closely together and each looking toward the head of the composite Leviathan. The image suits Hobbes’s argument well. Hobbes argues that a sovereign should be understood as an artificial person, created by a social contract to represent each individual member of a political community. Of course, Hobbes also argues that the best sovereign is also a natural person: a single human individual who rules as an absolute monarch. But whether political sovereignty rests in a single monarch, in democratic institutions, or in some other form of government, Hobbes urges us to think of the state as a person. The metaphor is simple, accessible, intuitively appealing—and it may be inescapable. Long past the age of absolute monarchs, we still speak of states as entities that intend, and act, and are vulnerable in ways similar to the ways in which individual persons intend, and act, and are vulnerable. This conception of the state shapes American law in significant ways. For example, many questions of constitutional law turn on whether the state acted or what the state intended, and many scholars have noted incoherence in the jurisprudence of state action and state intention.

Maybe we just don’t have convincing ways of thinking and talking about states other than the language of personhood. I’m looking for alternatives, so please let me know if you have suggestions.

In a work in progress called Political Anthropomorphism, I try to escape the metaphor of the state as a person—or at least stand far enough from it to evaluate it critically. I’ll present this paper tomorrow at the annual meeting of the Association for the Study of Law, Culture, and the Humanities, held this year at Georgetown Law Center in Washington, DC. I haven’t attended ASLCH before, but the program certainly looks enticing. Those interested in legal metaphors—the law is an ass or others—may want to attend Metaphors of Power / The Power of Metaphor, where I’ll discuss Political Anthropomorphism and my esteemed co-panelists will discuss the use of metaphors in the legal discourses of marriage, tort liability, and Native American rights to sacred sites or remains. Should be fun.

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Appleman on Blakely, Hidden Sentencing, and Retributive Justice

Last Friday, as part of the Works in Progress colloquia series at Thomas Jefferson School of Law, Laura Appleman of Williamette Law School (a current guest-blogger here) presented her forthcoming paper on Blakely, hidden sentencing, and retributive justice. Laura’s presentation was as follows:

She began with the problem of hidden sentencing. The term covers different ways that punishment can be given outside the traditional judge and jury setting. Hidden sentencing includes restrictions imposed by parole, probation, or supervised release, and hidden sentencing decisions are typically made by administrators, not judges or juries.

From there, she turned to the recent changes in sentencing law in the past decade. Starting with Apprendi and Ring, and moving to Blakely and Booker, she noted that the Supreme Court has relied on a reinvigorated Sixth Amendment and has demanded that juries make factual findings that support sentencing increases.

From there, she turned to a discussion of what she calls “Blakely’s animating principle” — that any steps to increase the length or severity of a sentence must be decided by some aspect of the community. She situated this idea inside her own view of a new approach to retributive justice. She suggested that community involvement in retributive justice decisionmaking serves to legitimate and reinscribe community judgment.

Finally, she set out her vision of retributive justice. She suggested that the purpose of retribution is to balance burdens between the offender and the community. Retributive justice prevents the offender from elevating himself to a status higher than the community. Requiring community involvement in hidden sentencing helps the community right itself and shows that people’s actions matter in the community.

Laura’s talk was interesting and informative. I liked the focus on hidden sentencing, an area that is not often discussed. I think she’s right that Blakely’s animating principle suggests that hidden sentencing must be done with community involvement. And, of course, I’m already on the record as being in favor of a broader community role for the jury.

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Two Criminal Law Conferences

gavels.jpgFor those of you interested in either white-collar crime or prisoner re-entry, March is your lucky month! First, on Thursday, March 15 (i.e., THIS Thursday), Georgetown Law School, in conjunction with the American Criminal Law Review, will be hosting a symposium on “Corporate Criminality: Legal, Ethical, and Managerial Implications.” Former Att’y General Dick Thornburgh will be giving the plenary address, Ed Meese opens and closes the conference, and Conglomerate superstar Christine Hurt will be discussing Regulation of Criminalization–so white collar crime wonks, this is the place to be.

A few weeks later, from March 30th- April 1st, Harvard Law School’s Criminal Justice Institute will be hosting a conference on prisoner re-entry entitled, “Rethinking Re-Entry: Confronting Perpetual Punishment.” The conference focus is on pursuing remedies that “reduce disparities and promote reintegration into communities for those who are involved in the criminal justice system.” This is a “must-attend” for anyone who is interested in sentencing….

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Virtual Women

Yesterday, the Virtual Women conference was held at Thomas Jefferson School of Law. It was the seventh annual Women and the Law conference for TJSL, and it was a good one. The keynote speaker was Rochelle Dreyfuss (NYU); panelists included Ann Bartow (South Carolina), the proprieter of Feminist Law Profs blog, Boatema Boateng (U.C.S.D.), Dan Burk (Minnesota), Carys Craig (Osgoode Hall at York University, Toronto), former Co-Op guest Christine Haight Farley (American), Michele Goodwin (DePaul), K.J. Greene (Thomas Jefferson), Eileen Kane (Penn State), Mary LaFrance (UNLV), Doris Estelle Long (John Marshall), Malla Pollack (American Justice), Cheryl Preston (BYU), and Rebecca Tushnet (Georgetown), as well as a panel of practicing attorneys. Kudos to conference organizers Julie Cromer and Sandy Rierson for putting together a great group.

With that line-up, it’s no surprise that the conference is already being blogged. On her blog, Rebecca Tushnet has posted summaries and reactions for the first two panels. If you haven’t already done so, you should take a look at Rebecca’s posts on the conference: Panel 1, Panel 2 (part 1), Panel 2 (part 2), Panel 3, and the Keynote.

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Upcoming UCLA Con Law Conference, & My Paper on Prisoner/Student/Employee 1st Amdmt Claims

A few days ago I finished drafting my paper for this Friday’s UCLA Law Review Symposium, Constitutional “Niches”: The Role of Institutional Context in Constitutional Law”. You can download my paper here; it’s very much a draft, and I’ll be busily working on the final version over the next two or three weeks, so I’d love any feedback!

For anyone interested in the topic and in/near L.A., the conference looks like a really tightly-packed day of Con Law bigwigs: Fred Schauer (whose work I really admire, though my paper notes an exception to one of his theses); Cynthia Estlund (the conference’s resident employment law bigwig); John Yoo, formerly of the Bush Admninistration (will he offer more “tortured” interpretations of executive power and detainees’ rights against torture?); Dawn Johnsen, formerly of the Clinton Administration (most likely to have her torture authorized by John Yoo?); and many others, but this list already is getting too long. Don’t ask how I got into this crowd — I’m just happy to be there; Paul Secunda and I feel like we’ll be the kids at the grown-ups’ table!

I haven’t written a real abstract yet, but here’s an informal one:

The paper notes Fred Schauer’s criticism that First Amendment law gives too little consideration to how speech rights should vary in different institutions (e.g., government institutions sponsoring arts or election speech; obscenity/pornography being judged similarly whether in print, on the internet, over the phone lines) — but the paper notes one area in which institutional context appears to be given too much consideration. Specifically, would-be speakers located within certain government institutions — students in public schools, employees in government workplaces, and prisoners — have far lesser speech protection; rather than apply heightened scrutiny to speech restrictions, courts substantially defer to those institutions’ speech restrictions and actually apply different legal “tests” in each of the three contexts. Courts rarely explain why different tests apply in these areas, so the article, partly based on economic analysis, (1) tries to discern, as a descriptive matter, the reasons courts apply less speech-protective tests in these contexts and (2) criticizes those reasons as exaggerations of the uniqueness of the three institutions (schools, prisons, and workplaces), or at least finding that those reasons vary in persuasiveness among the three institutions. Ultimately, the article concludes that courts should apply not institution-specific legal tests, but standard heightened scrutiny, to speech rights claims in these institutions, just as it does under the Equal Protection Clause.

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Workshop Opportunities

The “Blogging and the New Professor” session was interesting and informative. I’ll post some more detailed discussion when I’m not on a rent-a-terminal at the Wardman; for this post, I’d like to break out one point.

Larry Solum emphasized the importance of workshopping one’s work. He noted that, if a professor can workshop her article at several schools, she may double or triple her article’s real readership. And as we know, many schools offer ongoing workshop opportunities, often under titles like “workshop series,” “colloquia series,” “brown bag,” or “works in progress series.” Professor Solum emphasized the importance of workshopping one’s work at those kinds of venues.

An audience member then asked the natural follow up question: Where does one find information about workshop opportunities, organizers and chairs?

Of course, some information about workshop series crops up online. Information is available on SSRN about some workshops. Announcements appear on individual blogs, and I know that workshop series are sometimes announced on Legal Theory blog. (Is there another clearinghouse that I’m unaware of?) The fact remains that many workshop opportunities are not widespread public knowledge. This post is one step towards reducing that information gap (and will follow in the tradition of the “Hiring chairs, please identify yourselves” line of posts).

So: If you are a chair or organizer of a workshop series or program at your school, please weigh in in the comments. Your name, your school, your contact information, any workshop goals or requirements your workshop series has (“we’re looking for papers on mass torts” or the like). If you are not a workshop chair but your school has such a program and there is another chairperson you can point to, feel free to do that as well.

I’ll start the festivities by noting that I am co-chair (along with current Co-Op guest blogger Deven Desai) of Thomas Jefferson’s scholarship committee, and that we operate one such works-in-progress workshopping series. (Further details to follow in a blog comment.) Workshop chairs everywhere, identify yourselves! You have nothing to lose but your relative obscurity.

Hopefully, we can get feedback from enough workshop organizers to end up with a working (incomplete, but still quite helpful) list of workshop opportunities. I’ll put that information into chart form in post updates, and keep it as updated as possible with occasional reminders.

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Good news and bad news

With regards to the scheduling of the AALS session on blogging and scholarship tomorrow today, I see both good news and bad news.

The good news is that it doesn’t conflict with either Dan’s privacy panel or Gordon and Scott’s Wal-Mart panel. Whew! (It does, alas, clash with the “12 Angry Men” panel, meaning that 8:30 is the hour of “Solum or Solan — pick your favorite Lawrence.”)

The bad news is that the session starts at 8:30 . . .

. . . in the morning. Yikes!

Who forgot to tell the organizers that we bloggers need our sleep? (Markel? Didn’t we task that one to you?) Does no one realize that bloggers like to party ’til the wee hours of the morning? Or that any attempt to extract information from a blogger in the early morning is likely to result in gibberish or worse? I’m not making this up — note that one recent attempt to get information from a blogger in the early morning resulted in a cherry-picked list of bad puns. Alas, I suppose I have no choice but to bite the bullet and attend the panel — and then to blog mercilessly about any evidence of panelists in pajamas, snores among the audience (I realize, these are not limited to the 8:30 sessions), or bad puns.

Oh, and Miriam, you should definitely remember to attend the privacy panel later on. You will So-Love what those speakers have to say.

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Ideas on Sharing Ideas

Last weekend, Seton Hall Law School hosted its first annual Employment and Labor Law Scholars’ Forum. My sense (hopefully not over-influenced by optimism bias, one of the many topics discussed) is that the participants found it to be a great success. Part of this is attributable to the terrific and diverse working papers presented by Elizabeth Emens, Julie Chi-hye Suk, Noah Zatz, and Matthew Bodie. But I think the format and size also worked well. There were fourteen participants (including the authors) who collectively covered the waterfront of the labor and employment law fields. Each author presented for about fifteen minutes, with two commentators giving their thoughts for about ten minutes apiece. This set the stage for what was a terrific informal interchange for about an hour for each paper. Everyone learned a lot, in large part because the conversation began on such a high level, everybody had read the papers in advance, and the size of the group permitted all of us to participate in a meaningful way with each paper. Kudos to our colleague Kathleen Boozang for suggesting this kind of forum as a result of her participation in something similar in the health law area at St. Louis University.

Needless to say, despite the rise of electronic media and the seemingly endless number of ways for members of the academy to share information and ideas, sometimes there is no substitute for getting together to talk about scholarship. And, of course, it can be fun too.

So, I thought perhaps sharing ideas on how to share ideas might be a useful exercise. I am wondering what types of formats – whether characterized as a forum, workshop, roundtable, or conference – others have found to be particularly useful as a presenter, commenter, or participant. I am concerned here just about the beneficial exchange of ideas rather than other ways in which one might benefit from attendance (and I realize there are plenty of the latter). What, in your experience, has worked well? If anyone can speak to the “science” of this, that would also be helpful.

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Call For Papers: National Security Leak Prosecutions

The Association of American Law Schools Section on National Security Law is sponsoring a competition for papers on the topic of national security leak prosecutions in connection with its program at AALS in January. The winning piece will be published in the Journal of National Security Law and Policy and the author will be included on the panel itself. Three page abstracts are due September 5. The competition appears to be open only to law faculty. The Call for Papers is posted at:

http://www.wfu.edu/%7Echesner/NationalSecurityLaw/CallForPapers.pdf.

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Law and Society Ass’n. Conf. Next Week

I hope many of you are planning on attending the Law and Society Ass’n. Annual Meeting in Baltimore next week.

I will be there, and I hope to meet as many readers and bloggers as possible. To that end, Prawfs/Glom are organizing a happy hour for bloggers/readers.

I am lucky enough to be presenting a Director Liability paper on a Corp./Secs. panel on Thursday, at 8:15 a.m., and Jayne Barnard and Erica Beecher-Monas will also be presenting papers at that panel session (I have seen Jayne’s paper, and it is incredibly interesting – a bit of a profile on the secs. fraudster). Usha Rodrigues (such a superstar!) will be the discussant, Barbara Black will be the panel chair, and Joan Heminway is the organizer. I am anticipating a great session.

Though I am busily finishing my paper and preparing my presentation, a bigger, more pressing issue looms. To wit, should I run in the 5K Fred Dubow Memorial Fun Run on Sunday? I don’t suppose any readers/bloggers are planning to run?. . . . You see, it is one thing for me to be willing to put my academic thoughts out there and risk people saying “Nowicki has no idea what she is talking about.” It is entirely another thing to be willing to risk having people walk away from the conference saying “Not only are Nowicki’s ideas moronic, she is a painfully slow runner. So slow it hurts to watch.” To that end, who are the runners among us, and what sorts of times do you anticipate? . . .