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Summer 2009 Discussion Series Professor Donald J. Kochan www.donaldjkochan.com

Summer 2009 Discussion Series Professor Donald J. Kochan www.donaldjkochan.com. Program Introduction. Chapman University School of Law Summer Discussion Series 2009

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Summer 2009 Discussion Series Professor Donald J. Kochan www.donaldjkochan.com

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  1. Summer 2009Discussion SeriesProfessor Donald J. Kochanwww.donaldjkochan.com

  2. Program Introduction Chapman University School of Law Summer Discussion Series 2009 Once again this summer, Chapman Law will lead a 6-session Summer Discussion Series. Each session starts with a brief introduction to the topic and then is an open forum for discussion. A Professor will start it off and then it’s no-holds-barred discussion. We’re going to congregate in the back courtyard/patio behind Kennedy Hall for each session. Bring a brown bag meal. This is a unique opportunity for small group discussions on interesting legal issues that may never make it into your classrooms but are nonetheless important in understanding our legal environment. A rational economic actor would take advantage of an unpriced educational and interactive opportunity. All students, staff, incoming students, faculty, and strangers/members of the community are welcome. A reminder will be sent out a few days before each session, usually along with a non-required but suggested very short reading on the issues to be discussed.

  3. Past Years’ Discussion Programs • Summer 2005: http://www.donaldjkochan.com/discussion2005.doc • Summer 2006: http://www.donaldjkochan.com/2006KochanSummerDiscussionSeries.pdf • Summer 2007: http://www.donaldjkochan.com/2007_summer_discussion_series_final.doc • Fall 2007: http://www.donaldjkochan.com/fall_discussion_series_2007_complete.doc

  4. 2009 Summer Discussion Series Program Thursday, May 28, 2009, Noon ** Law and Economics and Whether it Should Matter: The Role of Interdisciplinary Studies in Legal Education in a Post(?) Critical Legal Studies World Discussion Leader: Professor Donald J. Kochan Thursday, June 4, 2009, Noon ** ARRRRR MATEY! Piracy and the Limits of International Law: What Now? And Who Should be the Enforcers? Discussion Leader: Professor Donald J. Kochan Thursday, June 11, 2000, 6 pm ** Jaywalking and Jail: Why Do People Obey Laws? And, When Will the Rational Person Violate Them? Discussion Leader: Professor Donald J. Kochan Thursday, June 18, 2009, Noon ** Precedent as the Doggy Bag of Law: What We Take Home From the Courts and Why We Care Discussion Leader: Professor Donald J. Kochan Thursday, June 25, 2009, 6 pm ** So Does an Obama Decision on a Supreme Court Justice Matter? A Refresher on the Politics of the Supreme Court and Confirmation Stories Discussion Leader: Professor Donald J. Kochan Thursday, July 9, 2009, Noon ** What is “Virtue”, and Does It Have a Role in Politics or Judicial Decision-Making? Discussion Leader: Professor Donald J. Kochan

  5. Summer 2009 Session 1: Suggested Reading Thursday, May 28, 2009, Noon ** Law and Economics and Whether it Should Matter: The Role of Interdisciplinary Studies in Legal Education in a Post(?) Critical Legal Studies World Discussion Leader: Professor Donald J. Kochan Summary Reading: Law and Economics scholarship is often criticized as being simply a step-child of Critical Legal Studies (“CLS”) because some think it questions whether objective decision-making is possible in the formation of legislative or judicial rules and that external factors beyond “law” can legitimately be injected into decisions. The comparison is not completely without merit, yet the implementation of economic analysis of law serves utility not futility. Whereas CLS largely finds that it is futile to attempt to define any objective criteria for the creation of legal rules, law and economics presumes that such criteria are possible. This presentation will discuss this conflict and seek to distinguish the normative and positive schools in the law and economics analysis and scholarship. http://topics.law.cornell.edu/wex/Critical_legal_theory http://en.wikipedia.org/wiki/Law_and_economics

  6. Summer 2009 Session 2: Suggested Readings Thursday, June 4, 2009, Noon ** ARRRRR MATEY! Piracy and the Limits of International Law: What Now? And Who Should be the Enforcers? Discussion Leader: Professor Donald J. Kochan • “The Law of Piracy in Popular Culture” http://tarlton.law.utexas.edu/lpop/etext/jmlc/gutoff31.htm • From Encyclopedia Britannica Online: http://www.britannica.com/EBchecked/topic/461493/piracy • Selected Recent News Articles: http://online.wsj.com/article/SB122701864743437147.html http://online.wsj.com/article/SB122693177440733229.html http://www.crimesofwar.org/onnews/news-piracy.html Additional Reading: UN Convention on the Law of the Sea http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf The Law of Piracy by Rubin: http://www.amazon.com/Law-Piracy-Alfred-P-Rubin/dp/1571050353

  7. Summer 2009 Session 3: Suggested Readings Thursday, June 11, 2000, 6 pm ** Jaywalking and Jail: Why Do People Obey Laws? And, When Will the Rational Person Violate Them? Discussion Leader: Professor Donald J. Kochan Suggested Short Readings: http://www.smith.edu/philosophy/mbesmithlegal_obligation.htm http://news.clas.virginia.edu/politics/x14131.xml http://www.associatedcontent.com/article/312760/why_do_people_obey_the_law.html Further Reading is Tom Tyler’s Book: http://www.amazon.com/Why-People-Obey-Law-Tyler/dp/0691126739

  8. Summer 2009 Session 4: Suggested Readings Thursday, June 18, 2009, Noon ** Precedent as the Doggy Bag of Law: What We Take Home From the Courts and Why We Care Discussion Leader: Professor Donald J. Kochan The following two slides provide a draft essay as suggested reading that was published as: Donald J. Kochan, Hungry for Precedent, Los Angeles Daily Journal, May 5, 2008, at 6. For More Extensive Reading, see, for example: Berkolow, Much Ado About Pluralities: Pride and Precedent Amidst the Cacophony of Concurrences – and Re-Percolation After Rapanos, 15 VA. J. SOC. POL’Y & L. 299 (2008) (Donald Kochan, Mathew Parlow and Melissa Berry).

  9. “Precedent as the Doggy Bag of Law: What We Take Home From The Courts and Why We Care” Donald J. Kochan* Court watchers start to salivate in April, looking anxiously toward June and the end of the “Term” of the Supreme Court of the United States which, like leaving dessert for last at dinner, often leaves the tastiest part of their decisional meal for last. This year’s term is no different. We anxiously await many opinions over the next couple months from the Supreme Court, as we always do this time of year. This column is about precedent, and why we care. In last year’s October 2007 term, the U.S. Supreme Court chose to hear only 78 cases of the approximately 8,800 cases filed. Their menu is quite selective, all the more reason to care about both the selections and outcomes. Our appetites await these results and their reverberations afterward. The most visible academic and media discussions of the law surround them. Only those decisions that percolate to the top of the menu, after multiple lower court restaurateurs play with the legal recipes, reach this level where the dishes served out of the Supreme Court come with such a significant stamp of quality or interest. At the café of the courts, legal observers make a reservation at the table, coming in with our own anticipations or predictions about the meal that will be served but approaching it out of a certain hunger for an answer – some precedent and some finality. We have the menu memorized, knowing the courts’ dockets, then anxiously await and prognosticate what the chefs have to offer. Before it arrives, we wonder whether the evening will end with a satisfyingly complete consumption of the meal or something will be left wanting or incomplete. We might not even care about how we are served but be present simply to observe the table next to us and its relevance to our own interests. We wonder whether the chef’s dishes all around will leave us full or whether we will be taking it home for some post-hoc calculation or conclusion, consumption and contemplation of its contents, or calibration and confrontation for its disposal – for good or bad. Precedent is the doggy bag of law. What we do with it when we get home makes all the difference. The point of the allusion is that we all hunger for something to take away from the decisions reached from our courts. We search for some means by which there is a heightened level of certainty and predictability that can guide our future decisions. The concept of precedent is precisely one of the primary reasons there is such intensity in our observation of pronouncements from the highest court in the land. They let us know what legal food we can take home and provide at least a smattering of information about how it should taste when we get there. So the question again is why do we care? Why do we book the reservation and engage at this legal table in the first place. Why do we show for the chefs’ presentation, and why do we care when we leave? It is because our system of law is based on reference and analogy. What happens in one case can affect parties to that litigation and strangers alike precisely because we rely on precedent. That, for example, is why you see indirectly interested parties acting as amici curiae especially when the stakes rise as high as the formation of legal doctrine at the Supreme Court.

  10. Continued: “Precedent as the Doggy Bag of Law: What We Take Home From The Courts and Why We Care” Donald J. Kochan* But precedent does not just serve the individual desires of individuals. It is also an institutional necessity. Rule of law values underlie our demand for, and infatuation with, the concept of precedent in our legal system. We must know what the law is before we can reasonably choose our actions, and precedent plays an enormously influential role in that process. Throughout the historical development of the rule of law, there has been the sensitivity to using law as a means of predictability, stability, confirmation of investment-backed expectations, and confidence in the enforceability of transactions, transferability, transparency, and trustworthiness. The fundamental elements to a legal regime based on the rule of law involve: (1) clear and understandable rules; (2) predictability and certainty; (3) procedural validity in the formation of rules; and (4) rules independent of individual whims of government officials and instead with a basis in established law. There is a strong foundation for the importance of precedent, from the Founding of the American Republic and forward. As Alexander Hamilton explained, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” Essentially coterminous with precedent is the phrase for its effect – stare decisis et non quieta movere, .or “to stand by matters that have been decided and not to disturb what is tranquil.” Finding the balance between past wisdom and prospective application is one of the primary difficulties with courts’ application of precedent and the public’s reliance on the same. To quote Shakespeare from The Tempest, “What’s past is prologue.” The direction of the law helps us know how to think, how to practice, and how to maneuver within a system of established rules and their susceptibility to being distinguished from the facts at hand. Identifiable precedent allows us the privilege of predictability and sometimes the promise of knowing the baseline from which a case must be distinguished. It is, however, handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules – such as the Court is want to do when it throws us split decisions and multiple opinions. When we are patrons at the diner of the Supreme Court (or any courts for that matter) – as participants or observers – we should always want a doggy bag to take away from the meal. And we should always want to check inside when we get home and analyze its contents. And then, apply our knowledge of those remnants to our next seat at the table. The contents may be clear, mysterious, or unidentifiable. Your waiter may have mixed the dishes, much as pluralities do, such that you do not know for sure what you have taken home, or the leftovers may be consumed with palatal clarity that has a lasting effect. Those possibilities become the culinary quandary of court decisions. Our system of precedent demands that we examine the nature, substance, and value of the doggie bag provided, and whether to keep it, throw it away, or find some use for it. Look on as the Term ends and sends you home from the court café. We brace ourselves for a summer of ingesting and deconstructing another set of precedents and anticipating the next steps in the evolution of our laws as the Supreme Court term speeds to its impending close.

  11. Summer 2009 Session 5: Suggested Readings Thursday, June 25, 2009, 6 pm ** So Does an Obama Decision on a Supreme Court Justice Matter? A Refresher on the Politics of the Supreme Court and Confirmation Stories Discussion Leader: Professor Donald J. Kochan “The President . . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Constitution, Article 2, Section 2. LA Times Article on Sotomayor Nomination, May 26, 2009: http://www.latimes.com/news/nationworld/nation/la-na-sonia-sotomayor27-2009may27,0,3835713.story Obama Nomination of Judge Sotomayor from YouTube, May 26, 2009: http://www.youtube.com/watch?v=1pFIRlP-ieg Judge Sotomayor Controversial YouTube Clip on Judicial Policymaking: http://www.youtube.com/watch?v=ug-qUvI6WFo New York Times on Sotomayor Controversial Remarks: http://www.nytimes.com/2009/05/15/us/15judge.html?_r=1 And full speech re the racism debate at: http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html Judge Sotomayor Bio available at: http://www.ca2.uscourts.gov/judgesmain.htm

  12. Summer 2009 Session 6: Suggested Readings Thursday, July 9, 2009, Noon ** What is “Virtue”, and Does It Have a Role in Politics or Judicial Decision-Making? Discussion Leader: Professor Donald J. Kochan The Following Six Slides Provide Suggested Reading, Quotes, That May Aid in This Topic’s Discussion:

  13. Summer 2009 Session 6: Suggested Readings (cont.) • “Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.” -- Benjamin Franklin, April 17, 1787. Benjamin Franklin, 10 The Works of Benjamin Franklin 297 (Jared Sparks ed., Tappan, Whittemore & Mason 1840). • “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” 5 The Writings of James Madison 223 (Gaillard Hunt ed. 1904). • “Those who have true compassion, virtue, and tenderness will shew it upon the properest objects; they will prefer the security and welfare of many millions to the security and welfare of some thousands, though they should be many thousands; especially if the latter prove to have been covetous and unthinking men, caught in the snare which they spread for others: for by these wild bargains no man is undone, but he who intended the favour of being undone to someone else. These gentlemen, pretending so much tenderness and compassion, will not at least sacrifice those who always foresaw the mischief, and always opposed it, to the relief of such who contributed to it; who made corrupt applications for an early admittance into the advantage of the secret; who swallowed plums in their imaginations, and ridiculed as fools or beggars all that kept at a wise and honest distance.” John Trenchard and Thomas Gordon, Cato’s Letters, or Essays on Liberty, Civil and Religious, and Other Important Subjects (Hamowy ed. 1995). • “Good government does . . . produce great virtue, much happiness, and many people.” John Trenchard and Thomas Gordon, Cato’s Letters, or Essays on Liberty, Civil and Religious, and Other Important Subjects (Hamowy ed. 1995). • “Our publick virtue is the best and surest proof that we can give of our private piety . . . ” John Trenchard and Thomas Gordon, Cato’s Letters, or Essays on Liberty, Civil and Religious, and Other Important Subjects (Hamowy ed. 1995).

  14. Summer 2009 Session 6: Suggested Readings (cont.) • Bruce Frohnen, The Bases of Professional Responsibility: Pluralisma and Community in Early America, 63 Geo. L. Rev. 931, 941 (1995) (describing virtue as key to the Founder’s vision that “the main task of government was to foster and protect the multitude of associations in which proper character was formed.”). • “I consider the domestic virtue of the Americans as the principal source of all their other qualities .... No government could be established on the same principle as that of the United States with a different code of morals. The American Constitution is remarkable for its simplicity; but it can only suffice a people habitually correct in their actions, and would be utterly inadequate to the wants of a different nation. Change the domestic habits of the Americans, their religious devotion, and their high respect for morality, and it will not be necessary to change a single letter in the Constitution in order to vary the whole form of their government.” Francis J. Grund, Aristocracy in America 212-13 (1959) (1839). • George Washington, First Inaugural Address (April 30, 1789), reprinted in Our Sacred Honor 382 (William J. Bennett ed., 1997) (“[T]here is no truth more thoroughly established, than that there exists . . . an indissoluble union between virtue and happiness . . . .”). • Samuel Adams, Letter to James Warren (Feb. 12, 1779), reprinted in Our Sacred Honor 218 (William J. Bennett ed., 1997) (“If Virtue and Knowledge are diffused among the People, they will never be enslaved. This will be their great Security.”). • Samuel Adams, Letter to James Warren (Nov. 4, 1775), reprinted in Our Sacred Honor 261 (William J. Bennett ed., 1997) (“It is not possible that any State shd [sic] long remain free, where Virtue is not supremely honored.”).

  15. Summer 2009 Session 6: Suggested Readings (cont.) • John Hancock, Speech in the Council Chamber (Feb. 27, 1788), reprinted in Our Sacred Honor 17 (William J. Bennett ed., 1997) (“I hope and pray that the gratitude of [the hearts of future Americans] . . . may be expressed . . . by exhibiting on the great theater of the world those social, public, and private virtues which give more dignity to a people possessing their own sovereignty than the crowns and diadems afford to sovereign princes.”). • Blackwell Encyclopedia Of The American Revolution 692 (Jack P. Greene & J.R. Pole, eds., 1991) (as Thomas Jefferson stated, “Self-love, therefore, is no part of morality . . . . It is the sole antagonist of virtue, leading us constantly by our propensities to self-gratification in violation of our moral duties to others . . . .”). • Benjamin Franklin, Doctrine To Be Preached (1731), reprinted in Our Sacred Honor 371 (William J. Bennett ed., 1997) (“Virtuous Men ought to league together to strengthen the Interest of Virtue, in the World: and so strengthen themselves in Virtue. . . . [N]one but the Virtuous are wise. . . . Man’s Perfection is in Virtue.”). • Benjamin Rush, Of the Mode of Education Proper in a Republic (1798), reprinted in Our Sacred Honor 412 (William J. Bennett ed., 1997) (“Without virtue, there can be no liberty, and liberty is the object and life of all republican governments.” • Cass R. Sunstein, Rights and Their Critics, 70 Notre Dame L. Rev. 727, 743 (1995) (virtue “is an aspect of citizenship that is notoriously neglected in public discussion and social practice. Whether rights are the culprit here may be questioned. But insofar as rights are understood in purely self-interested terms, it is certainly conceivable that they can crowd out issues of responsibility.”).

  16. Summer 2009 Session 6: Suggested Readings (cont.) • William A. Stanmeyer, Keeping the Constitutional Republic: Civic Virtue vs. Pornographic Attack, 14 Hastings Const. L.Q. 561, 565-66 (1987) (“the very structure of the federal system makes it abundantly clear that the Founders embraced the Biblical view of mankind’s ‘fallen human nature.’”). • William A. Stanmeyer, Keeping the Constitutional Republic: Civic Virtue vs. Pornographic Attack, 14 Hastings Const. L.Q. 561, 566 (1987) (“The Constitution does not exhaust the Founders’ beliefs about political order in a free society. They had profound insights into the kind of people Americans would have to be in order to maintain a constitutional republic. They believed, in opposition to most modern commentators who generally omit notions of self-restraint or ‘virtue’ as important political elements, that only if ‘republican virtue’ were widely practiced could the republic survive.”). • “This ‘classical’ understanding originated with Plato and Aristotle. . . . The theory posits that a republic with democratic institutions is a form of self-government, but the ‘self’ must be worthy of governing. Thus, the character of the people who govern – or more essentially, of the people who elect who will govern-is crucial to the merit, indeed the survival, of the policy. The right balance of freedom and authority, of liberty and order, did not just happen: it resulted from a comparable moral balance in the lives of most citizens. A bad people could not produce good government. Rather, good government arose from good people; consequently, the government itself had to be solicitous for the character of the people-to be interested in encouraging a modicum of virtue among the citizenry. Again and again, the Founders came back to this theme: moral breakdown leads to political breakdown, so the people must maintain a strong commitment to basic morality.” William A. Stanmeyer, Keeping the Constitutional Republic: Civic Virtue vs. Pornographic Attack, 14 Hastings Const. L.Q. 561, 566-67 (1987).

  17. Summer 2009 Session 6: Suggested Readings (cont.) • J. Adams, The Foundation of Government, reprinted in 2 The Annals of America 410 (Encyclopedia Britannica 1968) (“All sober inquirers after truth, ancient and modern, pagan and Christian, have declared that the happiness of man, as well as his dignity, consists in virtue. . . . If there is a form of government, then, whose principle and foundation is virtue, will not every sober man acknowledge it better calculated to promote the general happiness than any other form?”). • “Most people have naturally some virtues, but none have naturally all the virtues. To acquire those that are wanting, and secure what we acquire, as well as those that we have naturally, is the subject of an art. It is as properly an art as paining, navigation, or architecture . . . he must also be taught the principles of the art.” Benjamin Franklin, The Art of Virtue, Letter to Lord Kames, May 3, 1760, in The American Enlightenment 86 (Adrienne Koch ed. 1965). • “[N]othing is of more importance for the public weal, than to form and train up youth in wisdom and virtue. Wise and good men are, in my opinion, the strength of a state; much more so than riches or arms, which, under the management of ignorance and wickedness often draw on destruction, instead of providing for the safety of the people.” Benjamin Franklin, On Education of Youth, Letter to Samuel Johnson, August 23, 1750, in The American Enlightenment 86 (Adrienne Koch ed. 1965). See also generally, Benjamin Franklin, Morals and Religion, , in The American Enlightenment 61-66 (Adrienne Koch ed. 1965). • G. Washington, Farewell Address, reprinted in 2 The Annals of America 612 (Encyclopedia Britannica 1968) (“It is substantially true that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of free government.”).

  18. Summer 2009 Session 6: Suggested Readings (cont.) • “Franklin, Adams, Madison, Jefferson, Washington-these are the most important heroes in the pantheon of early American leaders. Their comments, and many more than one could adduce, make clear the founding generation’s conviction that the Constitution would work only if the people were virtuous. The precondition of political freedom was personal virtue. This philosophy was the fruit of a tradition going back to ancient writings on the essence of good citizenship, political health, and social morality; a tradition that ‘stressed the moral character of the independent citizen as the prerequisite to good politics and disinterested service to the country.’” William A. Stanmeyer, Keeping the Constitutional Republic: Civic Virtue vs. Pornographic Attack, 14 Hastings Const. L.Q. 561, 566-67 (1987) (citations omitted). • Alexis de Toqueville, quoted in E. Benson, God, Family, Country: Our Three Great Loyalties 360 (1975) (“America is great because she is good and if America ever ceases to be good, America will cease to be great.”). • “[A] statement’s chief virtue, according to Plato and Burke, is prudence.” Russell Kirk, The conservative mind: From Burke to Eliot (7th ed. 1985) (discussing John Adams’ view that “There is no necessary connection between knowledge and virtue. Simple intelligence has no association with morality.”). • “There is no more certain symptom of the decay of the principles requisite to maintain even our imperfect standard of virtue, than when the plea of necessity is urged in vindication of any departure from its mandate, since it is a calling in the aid of ingenuity to assist the passions, a coalition that rarely fails to lay prostrate the feeble defenses of a tottering morality.” Russell Kirk, The conservative mind: From Burke to Eliot 199 (7th ed. 1985).

  19. Concluding Remarks • Do Not Feel Like You Need to Read Anything to Attend • The Purpose of the Discussion Series is Just a Free-Flow Conversation • Hope to See You at the Patio • Again, Feel Free to Bring Friends and Family,or Even Strangers Off the Street

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