2008 Big Ten Untenured Conference

The schedule presents an outline. Click to see the complete abstracts.

Dinner for Sunday Arrivals

Meet at the Indiana Memorial Union (hotel lobby).

Continental Breakfast

Welcome and Introductory Remarks

• Hannah L. Buxbaum
  Indiana University School of Law—Bloomington

Identifying the Best Outlets For Your Legal Scholarship

• Charles Geyh and Leandra Lederman
  Indiana University School of Law—Bloomington

Break

Concurrent Sessions

(a) Interdisciplinary Perspectives on Criminal Law

• Kenworthey Bilz
  

  "Defending Moral Exclusion in the Law"

  This article challenges a fundamental tenet of the new narrative approach to judging, which is most closely associated with law and literature: before we may morally judge an offender, we must give him the opportunity to tell his story fully. I call this the "moral inclusionary" model. By using the techniques of literary criticism and evidence offered by empirical psychological research in emotions and perspective-taking, I argue that the law does and should give equal weight to a moral exclusionary model-that is, to maintain legitimacy, the law must limit the sort of mitigating stories offenders are allowed to tell.

• Adam Candeub
  

  "Reciprocate and Punish"

  Retributivists see criminal punishment as giving the offender his just deserts; deterrence theorists view punishment as rendering the payoffs to criminal acts as negative. Retributivism has found a home with criminal theorists working within moral philososphy, deterrence with law and economics.

  Recent scholarship in social psychology and evolutionary theory suggests that punishment serves additional functions beyond those identified by moral philosophy or economics. Game theory has demonstrated that sustainable reciprocative social behavior emerges when individuals face credible threats of punishment for non-cooperation. Evolutionary theorists have suggested that the retributive desire may be innate, improving individual fitness by signaling reciprocative tendencies or, more controversially, increasing group fitness.

  A taste for retribution disrupts the Becker-inspired, law and economics model for criminal deterrence, which explicitly states that punishment per se has no value. If the satisfaction of retributive desire were added to Becker's optimizations, the model could argue for increasing punishment (perhaps to infinity)-hardly an acceptable result. This result could be avoided by discounting the utility of satisfying instrumental emotions, like retribution-- an uncomfortable position for economists who tend to shun as mere value judgments distinctions between types of utility. Understanding the precise nature of human retributive taste and its function in cementing social relations holds the possibility for a more powerful economic analysis of the criminal law.

  While moral theorists might dismiss the insights of evolutionary theory as mere is not ought, a naturalized retribution adds substance to a deontological retributivism's often impossibly vague prescriptions. For instance, as Gilbert & Sullivan's The Mikado's Song reminds us, the principle of proportionality hardly sets precise punishments. Naturalized retributive taste can fill in the considerable gaps that pure deontological retribution leaves open, allowing for greater theoretic consistency in the criminal law.

• Jody Madeira
  

  "The Importance of Getting Closure on "Closure""

  Though many scholars have written on the consequences of pursuing "closure" for victims of crime, particularly with respec to victim impact testimony, the concept itself has yet to be defined. This project examines the multidimensionality of "closure" within the lived experience of murder victims' family members, asserting that it is a communicative concept that consists of perceived needs for intervention and reflexivity. In then proposes a new understanding of "closure" within criminal law, one in which grieving is not confused with efforts to regain control and accountability is not mistaken for vengeance. Finally, this project proposes that post-sentence victim allocution be incorporated into sentencing proceedings.

(b) International Law

• Karen Bravo
  

  "Show Me the Money! Using the Anti-Money Laundering Regime to Combat the Traffic in Humans"

  In 2000, the United Nations Convention on Transnational Organized Crime, together with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children were opened for signature. In the same year (in fact, the two instruments came within a month of each other), the United States Congress enacted the Trafficking Victims Protection Act as part of a package of legislation that included efforts against domestic violence and child kidnapping. The international and U.S. domestic instruments offer multilateral and unilateral methodologies and frameworks for understanding and combating the modern traffic in human beings. Not least of these methodologies is the U.S State Department's annual Trafficking in Persons (TIP) report. Eight years after the passage of these instruments, while information gathering, scholarly thoughts and writings, legislative enactments, and law enforcement task force formation and enforcement actions have increased internationally and domestically, there is little evidence of a decrease in the trafficking of human beings.

  In contrast, in 2003, the Organization for Economic Cooperation and Development's (OECD) Financial Action Task Force (FATF) issued its Forty Recommendations that form a baseline for the international prevention of and fight against money laundering by domestic banking and financial systems and institutions. The FATF subsequently (in 2003) issued a list of Non-Cooperating Territories and Countries, listing countries whose banking and financial laws and regulations did not accord with the Forty Recommendations. The list included __ countries and territories. A few months ago, the FATF issued the 2007/8 list of Non-Cooperating Territories and Countries. All the formerly non-compliant states and territories were now compliant or their compliance was in the process of being confirmed.

  The Article seeks to answer the question whether the standards and methodologies of the anti-money laundering regime can be adapted and successfully deployed in the fight against trafficking in human beings. In order to do so, among other things, the Article examines the similarities and differences in the two illicit international markets, such as nature of each market, international and domestic interests affected by the existence of and fight against the market, and theoretical and legal frameworks utilized to understand and combat them.

• Christiana Ochoa
  

  "Merchants, Pirates and the Future of Customary International Law Formation"

  Academic literature has developed a number of conceptual theories and empirical evidence to discuss the significant shift away from the state-centric model of international law. The dominant view of international law nonetheless maintains that states are the only true subjects of international law - that they are the only actors who are empowered to promulgate that law. This article takes issue with that view of international law. In doing so, it presents historical examples, drawn from lex mercatoria and customary prohibitions on piracy, in which individuals were the source and subject of the customary law that formed across borders, in order to demonstrate that non-state actors were essential in customary cross-border law formation prior to the establishment of the classical state-centered Westphalian order. It goes on to suggest that any scholar of international law that suspects that the future may bring a post-Westphalian era, in which the state is de-centered, should be interested in the question of how international law will be formed under such a structure. This Article is primarily concerned with that question as it relates to customary international law and argues that there are doctrinal and modern philosophical justifications for including non-state actors, including individuals, in the customary international law formation process, as they have been at previous moments in history.

• Timothy Waters
  

  "Confronting Constitutional Deadlock in Bosnia: Aims, Strategies and Implications"

  Reform of the Dayton constitution has been a persistent theme almost since its promulgation. Its trucial, transitional nature has been frequently observed, and increasingly criticized, as has the plenipotentiary power exercised by the international community's unelected Office of the High Representative; indeed the constitution itself is part of a, international treaty and has never been approved by the population or their legislators.

  At the same time, the Dayton Accords (which include the constitution) and the OHR provide the only agreed framework for the existence of the common Bosnian state. Sporadic efforts to generate political momentum for comprehensive revision have failed; such efforts have arguably been given more urgency by the expected termination of the OHR mandate, which until now has provided the principal engine for far-reaching sub-constitutional reform and revision, with the promise and pressures of EU accession and NATO membership.

  So, what processes and outcomes are possible or desirable? An initial observation suggests that while many actors desire to reform Dayton, their core preferences (at least their maximalist positions) represent profoundly incompatible end-states, with the possibility that there is no zone of agreement. Similarly, almost all parties feel that international intervention – especially by the United States – is essential to any agreement, yet at the same time many express profound doubts that an imposed deal could be acceptable.

  This paper will assess the preferences and strategies the dominant political actors have adopted in structuring calls for, or resistance to, constitutional reform. Questions such as the following will inform the inquiry: Can a minority resist constitutional reform? Would failure to achieve a constitutional consensus be the equivalent of ‘state failure,' allowing the resisting elements to withdraw from political union? Can a majority impose constitutional reform? What is the role of the international community – in particular the EU, but also NATO countries and participants in international organizations – in structuring the reform process? Are there outcomes or processes that are excluded a priori, and if so, what is the justification of such limitation? Is 'muddling through' a viable option – that is, can Dayton be progressively reformed in a way that achieves outcomes satisfactory to all parties? Alternatively, is it acceptable to continue under the present Dayton constitution if no agreement on reform can be achieved?

  Constitutional reform is a broad and abstract concept, but it contains within it specific areas of policy reform: security, including both military and police; economy; education; as well as the structure of government. One important line of inquiry, therefore, is whether, and which, areas of reform might be achievable at a sub-constitutional level – which, with robust international oversight and control, has been the model, successful or not, from 1995 until now.

• Patrick Keenan
  

  "Social Arrears: Should Obligations to Citizens be Treated Differently than Debts to Creditors?"

  Sovereign wealth funds are investment vehicles through which governments invest their foreign currency reserves or the windfall earnings from suddenly profitable commodities in equity markets or other securities. An issue that has been left out of recent discussions of sovereign wealth funds is a seeming anomaly: some of the states that are now benefiting the most from high commodity prices and developing active sovereign wealth funds or other state-controlled investment vehicles also receive substantial development assistance from other states. For example, Angola's state-controlled investment vehicles are become more in international markets while Angola also receives enormous amounts of development assistance. In this paper, I begin to develop a concept of social arrears. By this I mean unmet social development needs that the state apparently has the resources to address, but has chosen not to. I argue that before states with substantial social arrears are permitted to access international securities markets, those states must develop a plan for addressing their social arrears. I draw on the International Monetary Fund's rules governing when it will lend to states that are in arrears to private creditors.

Lunch

Concurrent Sessions

(a) Comparative Analysis

• Shawn Marie Boyne
  

  "Revisiting Damaška: The Uncertainty of German Prosecutorial Decision-making"

  In 1975 and 1981 Mirjan Damaška wrote seminal articles that examined the hierarchical model of German prosecution. Damaška argued that internal mechanisms and the preference for uniform solutions restricted the discretionary authority of German prosecutors. In this work-in-progress, I re-examine Damaškas main contentions and question whether or not they hold true today. Using data collected from over 100 semi-structured interviews of German prosecutors as well as participant observations studies, I argue that, while the desire for uniformity remains, resource constraints and the rising value placed on efficiency have expanded the range of prosecutorial discretion. As a result, the German system?s normative aspiration to find the truth has been weakened.

• Amy Cohen
  

  "The Culture Concept in Law and Development"

  This paper examines a recent programmatic shift among law and development scholars and practitioners who have moved from building rule-of-law processes and institutions to building rule-of-law cultures. Over the past five years, scholars and practitioners traditionally engaged in projects of institution-building have suggested that culture change--and is required to revive failing rule-of-law projects in developing states. This paper carefully considers how legal scholars envision culture as a tool to refashion the relationship between legal institutions and individual citizens. It traces the ways in which legal scholars use culture as a means to take law--general, universal, and acultural--and to make it specific, local, and embedded within the consciousness of ordinary people. It then argues that this turn from law to culture produces a conceptualization of culture uncannily analogous to the conceptualization of law that the turn to culture was meant to correct. This similarity becomes especially apparent when examining development projects. The paper therefore illustrates not only the potential ineffectiveness but also the potential dangers of development efforts to make people into law-believers by drawing on two ethnographic examples from Nepal. Building rule-of-law cultures, the paper suggests, risks becoming a top-down project of self-transformation that rests on erroneous assumptions about the politics and conflict of everyday life.

• Daniel Schwarcz
  

  "Towards A New Approach for Resolving Insurance Disputes"

  Much of insurance law and regulation is concerned with compensating consumers who have been wrongly denied coverage. But policyholders nonetheless have relatively few realistic options for challenging an insurer's adverse coverage determination. Litigation is often too slow and costly for those who have recently suffered significant financial loss. Meanwhile, the Alternative Dispute Resolution options that do exist -- such as the mediation services that insurance regulators offer or the existing variants of insurance arbitration -- are generally either ineffective or unavailable for most disputes. This Article proposes a new way forward by looking to the United Kingdom's innovative Financial Ombudsman Service, which operates in parallel to the British regulator and is solely devoted to resolving consumer financial disputes. It argues that the comparative success of the Financial Ombudsman Service is primarily attributable to the ways in which it blends elements of the individual, uncoordinated insurance ADR schemes in America. As such, the Article concludes that American lawmakers can significantly improve insurance compensation merely by strategically rethinking the institutional architecture of insurance dispute resolution.

(b) Courts: Procedure and Substantive Rights

• Matthew L.M. Fletcher
  

  "Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law"

  Legal scholars have long assumed -- and Supreme Court Justices have long maintained -- that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration. This empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court's certiorari process is neither objective nor neutral -- and in fact prejudices certain classes of petitioners. Cert pool clerks forced to apply criteria -- such as whether there is a legitimate split in lower court authority, whether the lower court committed a gross error, or whether an important national interest is at stake -- appear to overstate the relative merits and importance of petitions brought by state and local governments, while understating the merits and importance of petitions brought by private entities and others.

  This dichotomy appears in stark relief in the context of federal Indian law, where a large number of disputes arise between state and tribal interests. In this study of approximately 160 certiorari petitions, a majority of petitions brought by state and local governments received favorable treatment from the cert pool while recommending denial in all but a tiny handful of tribal petitions, often labeling them factbound and splitless. While the cert pool recommendations are not binding on the Justices, the gatekeeping function of the cert pool is effective in denying tribal petitioners their day in court.

• Amy Gajda
  

  "Privacy, Ethics, and the Meaning of News"

  Courts, John Marshall famously declared, must "say what the law is." Increasingly, however, courts are also called upon to say what the news is. When subjects of unwanted publicity sue, journalists commonly argue that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized constitutional concerns by deferring heavily to journalists' own sense of what qualified as news. Recently, however, courts have grown decidedly less tolerant, driven by mounting anxiety over the loss of personal privacy generally and by declining respect for the press specifically. Ironically, an emerging tool used by courts to police news outlets is journalists' own codes of professional ethics. By measuring editorial decisions against gauzy internal ethics standards, courts give the appearance of deference to the profession while aggressively scrutinizing editorial judgments. This Article demonstrates the growing threat to press freedom posed by these emerging trends. It places the conflict in historical context, explains how recent developments have undermined judicial deference to journalism in defining the news, examines the implications of the nascent resurgence of tort regulation of journalism, and concludes by suggesting that courts return to a more deferential approach in assessing "newsworthiness."

• Lumen Mulligan
  

  "Federal Courts Not Federal Tribunals"

  Although innumerable federal rights, from shareholder protections to constitutional interests, are enforced in the federal judiciary by way of an implied cause of action, the Court recently held that "[r]aising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals." This "tribunals position" asserts, following Justice Powell, that inferring a cause of action is unconstitutional pursuant to Article III because such conduct enlarges the jurisdiction of the federal judiciary, a power specifically limited to Congress. I aim to rebut the tribunal position. Federal question jurisdiction, I contend, is best understood as a function of federal rights not causes of action. As cases where the Court infers a cause of action all involve a pre-existing federal right created by a non-judicial body, there is not a jurisdictional defect in such cases. I conclude that this fight over inferring causes of action is not authentically about jurisdiction or separation of powers as many insist. Rather, it is a fight about policy. A judicial policy weighing against inferring causes of action may well be wise. But the move to constitutionalize this policy under the guise of Article III, just as the Court elevated standing doctrine from policy to constitutional command, is not.

Break

Concurrent Sessions

(a) Frameworks for Environmental Regulation

• Eric Dannenmaier
  

  "Beyond Indigenous Property Rights: The Distinctive Connection of the Dispossessed"

  Human rights law has begun to offer normative protection for what remains of indigenous lands. Yet territory now better defended from conquest and encroachment is increasingly threatened by their byproducts. Water scarcity, food security, waste deposition, climate change -- in short the multiple impacts of industrial development -- pose a new territorial challenge to indigenous communities that will test the reach and capacity of the human rights regime.

  This article examines that challenge and argues a solution may lie in emerging human rights doctrine recognizing indigenous peoples' land rights not as heirs to a European conception of property but as peoples with a distinctive historical, cultural, and spiritual relationship to the land and environment. The article doesn't purport to create this doctrine, but merely to name it and examine its contours. The author traces multiple sources of law that affirm indigenous property rights based on land-connectedness and proposes, for the sake of analysis, "distinctive connection" doctrine. The article asks:

  1. How has this doctrine been defined and applied in indigenous property claims based in part on cultural and spiritual land-relationships; and

  2. Can it be effectively deployed to protect against the 'new' territorial encroachment; the impact on indigenous communities' environment?

  While a distinctive connection has been repeatedly advanced its significance has not been fully deployed to address natural resource and ecological concerns of indigenous peoples. The author thus offers an analytic framework within which the connection might be further understood, emphasizing its relevance to the environment. The article looks by way of example at recent indigenous environmental cases -- an Inuit climate change claim, Western Shoshone concerns regarding mining practices and nuclear waste disposal on traditional lands, and remedial rights of Inuit communities affected by the Exxon Valdez oil spill -- to suggest that a distinctive connection doctrine may offer a means of redressing injury bound up with indigenous communities' relationship to the land and environment.

• Annecoos Wiersema
  

  "Collateral Damage: The Impact of the Kyoto Protocol's Market Mechanisms on Biodiversity"

  My work-in-progress will address the failure of current legal regimes to address climate change in a way that can avoid side-effects with potentially devastating consequences for biodiversity protection. The paper argues that this is a result of the way in which the climate change problem is framed as a problem of market failure and the way in which it is, as a result, being addressed, through a primary emphasis on economic techniques incorporated into legal regimes. I am currently in the early stages of research, and will have a work-in-progress by August.

  Climate change is one of the starkest examples to date of the complexity of natural systems and the difficulties of regulating complex systems at multiple geographical scales. Yet current efforts to address climate change have focused on using legal instruments based on market mechanisms to address climate change and human contributions to that climate change. In part this is because the climate change problem appears to fit exactly the model of pollution as a market failure, with externalities being unaccounted for -- models exemplified in Coase's The Problem of Social Cost and Garrett Hardin's Tragedy of the Commons. However, this approach is highly problematic because it threatens to simplify both the problem and the solutions that will be used to address the problem. Focusing on the Kyoto Protocol and its Joint Implementation program and Clean Development Mechanism, my work shows that as a result of an emphasis on economic models, efforts to combat climate change at best resemble clever accounting and at worst can have disastrous consequences for biodiversity protection. In part, this is due to failures within the legal regimes that attempt to incorporate market mechanisms -- the implementation. It is also due, however, to reliance on economic models that have the effect of converting all aspects of the climate change issue into fungible, tradable credits. As such, the Kyoto Protocol and the Clean Development Mechanism are examples of the disconnect between the most complex of all problems and the acontextual way in which it is being addressed through law. The paper will explore some ways in which biodiversity can more effectively be taken into account in a range of tools to address climate change. It will propose that international and national efforts focus on designing legal instruments that can take better account of the need for biodiversity protection as we tackle climate change by moving away from over-reliance on market mechanisms.

(b) Individual Rights

• Kristi Bowman
  

  "Recontextualizing Tinker"

  Forty years ago this February, the Supreme Court announced its landmark decision in Tinker v. Des Moines. Now, decades later, thousands of cases stand on Tinker's shoulders, as do hundreds of law review notes and articles. However, student speech law has not developed in a coherent fashion and the resulting body of law is a mess. One of the few constant themes is the narrative of Tinker as the "high water mark" of student speech rights, but the story is more complicated than the simple peak and decline that narrative implies. Reading Tinker closely, in concert with an analysis of Supreme Court justices' personal papers and the legal and social context that surrounded Tinker, I argue, as others have done, that Tinker is limited to political speech. But more than that, I contend that Tinker should be not read as a generally-applicable student speech test, but rather as a case taking the important first step of carving out a small area of student speech for constitutional protection. This interpretation opens up the opportunity for starting to unify student speech doctrine, and also recognizes Tinker's legacy as a case instrumental in recognizing the uniqueness of the elementary and secondary school context.

• Maria Pabon Lopez
  

  "Colorblindness and Racial Privacy Initiatives: What Is an Undocumented Latino Student To Do?"

  Racial privacy initiatives aim to prohibit states from gathering and classifying information based on race or ethnicity. Among other things, they would make studies of race very difficult. The paper examines the effect of such initiatives upon the educational opportunities of undocumented Latino students. It will also build upon the literature analyzing the constitutionality of these initiatives and explore whether they are good policy. Finally, this paper will use Critical Race Theory to explain the movement and philosophy behind such initiatives.

Cocktails and Dinner

Continental Breakfast

Conference Reconvenes

• Hannah L. Buxbaum
  Indiana University School of Law—Bloomington

Building Your Professional Network

• Donna Nagy and Luis Fuentes-Rohwer
  Indiana University School of Law—Bloomington

Break

Concurrent Sessions

(a) Law and Business

• William Henderson
  

  "Are We Selling Results or Résumés?: The Underexplored Linkage Between Human Resource Strategies and Firm-Specific Capital"

  Over the last several decades, virtually every large law firm has adopted some variant of the Cravath system, which builds human capital by hiring the best students from the best schools and providing them with the best training. At the end of a multi-year tournament, the best associates are promoted to partner. In theory, this system delivers superior services to clients, thus creating firm-specific capital that generates higher profits. In recent years, however, the surge in demand for corporate legal services has outstripped the supply of one key input - elite law school graduates. The ensuing salary wars have significantly increased the cost structure of large corporate law firms and undercut clients' willingness to pay for associate training. These trends are unsustainable. More significantly, clients are unhappy and searching for ways to control costs.

  This essay draws upon the findings of an innovative study of engineers at the renowned Bell Laboratories to sketch out a plausible alternative law firm model that could profit from client discontent. In an exhaustive study that was designed to identify the various traits of star performers (so Bell Labs could recruit more of them), researchers found no relationship between performance and various social, psychological, and cognitive abilities, such as I.Q. Two years of observational fieldwork subsequently revealed that higher productivity among knowledge workers was attributable to several distinctive work strategies that were teachable. Further, controlled experiments showed large and persistent productivity gains for engineers who completed the training program, with women and minority workers posting the largest increases. I discuss whether these insights could be applied to law firms (the answer is yes) and why law firms nonetheless would resist despite the potential for higher profits. I then outline how the concept could be put to a market test.

• Timothy Lynch
  

  "Sophisticated Enough? Sophisticated Investors and the Case for an Independent Tax-Payer-Funded Credit Rating Agency"

  "Sophisticated investors" may not be investing with the sophistication that is appropriate for the well-being of the public. This article explores many strands of evidence that suggest that sophisticated investors -- e.g.,"accredited investors" under US securities regulation -- are not, or may not be, adequately or satisfactorily sophisticated to justify their relatively unregulated and unprotected position in the economy, especially given the growing effects of their activities on the broader public. Such evidence includes recent findings of behavioral economists as well as studies of investing trends that explain phenomena like the recent enthusiasm for sub-prime based, mortgage backed securities and for hedge funds with investment strategies that are kept relatively opaque to their own investors. The inability to fully comprehend these investments may indicate a lack of sophistication that would be of significant public importance.

  This lack of actual sophistication is particularly important in a modern context in which many institutional investors invest for the benefit of public beneficiaries. This, coupled with the interrelated nature of the financial markets creates risks for the public in general. The article goes on to suggest that in an era where complex, opaque securities and investment vehicles are more and more common, the current buyer-beware paradigm within capital markets, in which little investor protection is provided to many ostensibly sophisticated investors, may not be in the public's best interest. This article briefly proposes a research agenda to further investigate this question of whether or not accredited investors are sophisticated enough from the perspective of the general public good and, after making an assumption based on current knowledge that they not, briefly makes some suggestions to better safeguard public welfare.

  This article's second half provides a detailed discussion of one possible reform that would better safeguard the public welfare, the establishment of an independent, tax-payer funded, government-run credit rating agency. Credit rating agencies have particular access to non-public information, in particular to information regarding complex and opaque securities, and the investor community often relies heavily on credit rating analysis as information proxies for fundamental valuation of securities. However, credit rating agencies have severe conflicts of interests which call into question the soundness and reliability of their opinions. It is not apparent that the investment community appropriately discounts the opinions of the credit rating agencies to account for such conflicts of interest. The current subprime mortgage crisis provides a possible example of an over-reliance on the opinions of credit rating agencies. The opinions of a tax-payer funded, independent, government credit rating agency would not be influenced by similar conflicts of interests and could be used to further inform and supplement other information evaluated by investors.

• Antony Page
  

  "Unconscious Bias and the Limits of Director Independence"

  Corporate directors make difficult decisions: How much should we pay our CEO? Should we permit a law suit against a fellow director? Should we sell the company? Directors are legally obligated to decide in good faith based on the business merits of the issue rather than extraneous considerations and influences. Naturally, some directors may have preferences, or even biases-our CEO, my colleague and friend, deserves a lot; the company should not sue my fellow board member; we should not sell, because after all, I would like to remain a board member-but the courts presume that independent directors either do not have these preferences or can make decisions without being affected by them. Similarly, independent directors acting in good faith are likely to believe that they are either unbiased or have overcome their biases. Based on a synthesis of more than two decades of social psychology research, this article argues that frequently the courts' presumption and the directors' belief will be wrong. First, directors are likely to have preferences, even though they sometimes will not be consciously aware of them. Second, regardless of directors' good faith, unconscious and to a significant extent uncontrollable cognitive processes will prevent the directors' decisions from being unaffected by their preferences. Given this serious flaw in the conception of independent directors' decision-making ability, the article evaluates several legal and procedural solutions, including heightened judicial scrutiny, expanded roles for other decision-makers, and changed decision-making processes.

(b) Science and Technology

• Kevin Collins
  

  "The Reach of Literal Claim Scope Into After-Arising Technology: On the Construction of Things and Meanings"

  The contemporary doctrine addressing how far the literal scope of a patent claim can reach into after-arising technology ("AAT") is, to put it gently, challenging. The difficulties can be traced in large part to divergent reactions to the fixation/growth paradox of literal claim scope. Both claim construction and the disclosure doctrines require courts to stabilize literal claim scope using the date that a claim is filed as a point of reference. Yet, literal claims routinely describe AAT, and, in order to incorporate technologies not yet in existence on the date of filing, their scopes must in some sense grow. Premised on an assumption that the paradox is a contradiction, much of the judicial and academic confusion over the reach of literal claim scope into AAT can be reduced to a debate over whether fixation or growth should prevail.

  This article reframes the debate. It argues that the fixation/growth paradox is a false paradox and that simultaneous fixation and growth of literal claim scope is not a logical contradiction. By bringing concepts from both the philosophy of things and the philosophy of language to bear on patent law, it shines a spotlight on judicial practices that to date have occurred in the shadows of the disclosure and claim construction analyses. Whenever a court addresses whether AAT falls within the literal scope of a valid patent claim, it necessarily constructs both the things claimed by a patent and the theory of meaning (either denotational or ideational) that permits the claiming language to describe those things. Furthermore, the manner in which a court constructs things and meanings is often outcome dispositive: it determines whether the fixed scope of a literal claim can encompass AAT.

  This article argues that courts should not seek to justify their constructions on grounds that are exogenous to patent policy. Things and meanings are not entities that have definitive metaphysical or even conventional groundings. Courts should recognize the nature of the practices in which they already engage: they should construct both things and meanings with an eye toward sculpting the reach of literal claim scope into AAT so as to further the normative goals of patent protection.

• Emily Morris
  

  "Playing Telephone: Translation and Re-translation of Patents"

  "Playing Telephone: Translation and Re-translation of Patents," an examination of which actors actually draft, read, and translate patents and patent claims. The project addresses how resulting issues of target audience as well imperfect drafting and translation affect how we should view patent claim construction.

• Stephanie Tai
  

  "Whose Science is Our Science? Institutional Roles in Assessing Science and the Impact of Scientific Knowledge"

  Both legislatures and administrative agencies often act in the face of scientific uncertainty in matters ranging from criminal punishment to environmental protection to food labeling and safety regulations to health care regulation. When disputes arise regarding these actions, courts must struggle to determine either the science relevant to the judicial resolution of the dispute, or the appropriate institution to make that scientific determination. These judicial resolutions may therefore involve laying out approaches for further judicial inquiry into the matter or rules for deference, or some combination of the two.

  In certain instances, though, the U.S. Supreme Court has suggested that should scientific certainty be reached on a matter, the Court's inquiry might change. For example, in last term's abortion case of Gonzales v. Carhart, the majority deferred to Congress (though not "uncritical"ly) on the grounds that legislatures should have especially broad discretion to choose options when acting in areas of medical and scientific uncertainty, as the majority concluded existed what it viewed as documented medical disagreement about whether the prohibited abortion method would cause serious health risks to women. Although the reasoning was directed towards areas of scientific uncertainty, the reasoning behind the Court's deference suggests that legislative discretion would be curtailed were scientific certainty to be established.

  This paper will examine whether and how the presence of certainty, or uncertainty, in scientific knowledge might change the judicial review of governmental decisionmaker's actions, looking through the lens of recent Supreme Court cases such as Gonzales v. Carhart and Massachusetts v. EPA, last term's climate change case. Given the wide variety of situations in which scientific certainty, or uncertainty, may arise in the administrative and legislative contexts, my discussion will necessarily be somewhat abstracted from the legal doctrines at issues in these cases. In discussing these cases, I will try to take care to parse out the difference between what the Court suggests might change were scientific certainty present, and what the actual practical effect of having scientific knowledge might be. I will also suggest that even if the actual practical effect on legal decisions is limited, the fact that the Court purports to change its review in light of the presence or absence of scientific certainty is enough to make the production of scientific knowledge relevant.

  I will further argue that the use, whether actual or purported, of these dual judicial review modes-one in the presence of scientific certainty, another in the absence of scientific certainty-masks a less explicit, but nevertheless underlying, determination: the judicial inquiry into whether the science is "certain" or "uncertain." This is not as easy a question to answer as it might seem, given that the determination of certainty involves both having a certain level of scientific understanding and making normative judgments about the nature of science. Nevertheless, because the answer to this question may act as a gateway between areas of more government options and areas of fewer government options, I will suggest that courts should pay more attention to how they answer this question, both in individual cases and as a general matter. Finally, in light of the Court's approach towards institutional deference, I will suggest some guiding principles to aid in evaluating whether such "certainty" exists, at least for the purpose of judicial review.

Lunch and Closing Remarks

Tour of the Kinsey Institute for Research in Sex, Gender, and Reproduction