William and Mary Law School

Conferences

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5th Annual Brigham-Kanner Property Rights Conference

Presentation of the 2008 Brigham-Kanner Prize to Robert C. Ellickson, Yale Law School
Co-sponsored by the William & Mary Property Rights Project, and the Institute of Bill of Rights Law

October 17-18, 2008

Professor Robert C. Ellickson is the 2008 recipient of the Brigham-Kanner Prize. He is the Walter E. Meyer Professor of Property and Urban Law at Yale Law School. Prior to joining the Yale faculty in 1988, he was a member of the law faculties at the University of Southern California and Stanford University.
Professor Ellickson’s books include The Household: Informal Order Around the Hearth (Princeton University Press, 2008), Order Without Law: How Neighbors Settle Disputes (Harvard University Press, 1991, awarded the Order of the Coif Triennial Book Award), Land Use Controls (with Vicki L. Been) (Aspen Law and Business, 3d ed 2005), and Perspectives on Property Law (with Carol M. Rose and Bruce A. Ackerman)(Aspen Law and Business, 3d ed 2002).
He is a fellow of the American Academy of Arts and Sciences and was President of the American Law and Economics Association in 2001.
The Brigham-Kanner Property Rights Conference and Brigham-Kanner Property Rights Prize are named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights, their efforts to advance the constitutional protection of property, and their accomplishments in preserving the important role that private property plays in protecting individual and civil rights.
Participants:
  • Michael M. Berger, Partner, Manatt, Phelps & Phillips, LLP, Los Angeles, California
  • Toby Prince Brigham, Founding Partner, Brigham Moore, LLP, Miami, Florida
  • James W. Ely, Jr., Milton R. Underwood Chair in Free Enterprise, Vanderbilt University
  • Lee Fennell, Professor of Law, University of Chicago Law School
  • Nicole Stelle Garnett, Professor of Law, University of Notre Dame Law School
  • Roderick M. Hills, Jr., Professor of Law, New York University Law School
  • Gideon Kanner, Counsel, Manatt, Phelps & Phillips, LLP, Los Angeles, California; Professor of Law, Emeritus, Loyola Law School
  • The Honorable Maureen O’Connor, Supreme Court of Ohio
  • Eduardo M. Peñalver, Professor of Law, Cornell University Law School
  • Carol M. Rose, Lohse Chair in Water and Natural Resources, James E. Rogers College of Law, University of Arizona
  • Henry E. Smith, Fred A. Johnston Professor of Property and Environmental Law, Yale Law School
  • Stewart E. Sterk, H. Bert and Ruth Mack Professor of Real Estate Law, Cardozo Law School
  • The Honorable Wilford Taylor, Jr., 8th Judicial Circuit Court of Virginia
William & Mary Conference Coordinating Committee:
  • Eric A. Kades, Conference Chairman; Vice Dean, Professor of Law and Director of the Property Rights Project
  • Lynda L. Butler, Interim Dean and Chancellor Professor of Law
  • Joseph T. Waldo, Attorney at Law, Waldo & Lyle, Norfolk, Virginia
How We Vote

Co-sponsored by the William & Mary Election Law Program, and the National Center for State Courts
March 14, 2008

Central to our democracy is the casting of votes. And the way in which America votes has been changing in recent years, with a strong move towards electronic voting methods, and the emergence of alternative voting schemes, such as “early voting,” and voting by mail. The federal Help America Vote Act has imposed new requirements on voting processes, such as increasing the accessibility of voting booths to disabled voters. Separately, some state legislatures have imposed heightened voter identification requirements. This conference will examine some of these recent changes, and consider how to protect both the integrity and the reliability of our voting processes.

Participants:

  • Davison Douglas, William & Mary School of Law
  • Edward Foley, Ohio State University, Mortiz School of Law
  • John Fortier, The American Enterprise Institute
  • Paul Gronke, Reed College, Department of Political Science
  • Michael Herron, Dartmouth College, Department of Political Science
  • Walter Mebane, University of Michigan, Departments of Political Science and Statistics
  • Nathaniel Persily, Columbia Law School
  • Daniel Tokaji, Ohio State University, Mortiz School of Law
  • Dan Wallach, Rice University, Department of Computer Science

 

The Fourth Annual Brigham-Kanner Property Rights Conference

The Presentation of the 2007 Brigham-Kanner Prize to Professor Margaret Jane Radin
October 5-6, 2007

Participants:

  • George Autry, Sumner & Hartzog, Raleigh, North CarolinaToby Brigham, Brigham & Moore, LLP, Miami, Florida
  • James S. Burling, Pacific Legal Foundation
  • The Honorable Dale R. Cathell, State of Maryland Court of Appeals
  • Tom Goldstein, Miami Dade County Attorney's Office
  • Colin Gordon, University of Iowa, Department of History
  • George Lefcoe, University of Southern California Gould School
  • Jeffrey Manns, William & Mary School of Law
  • Edward D. McKirdy, McKirdy and Riskin, PA
  • H. Dixon Montague, Vinson & Elkins, LLP, Houston, Texas
  • Stephen R. Munzer, UCLA School of Law
  • Margaret Jane Radin, University of Michigan Law School
  • Frank Schnidman, Florida Atlantic University at Fort Lauderdale, Center for Urban and Environmental Studies, International Programs
  • Charles Siemon, Siemon & Larsen, Boca Raton, Florida
  • Jeffrey E. Stake, University of Indiana—Bloomington School of Law
  • James L Thompson, Miller, Miller & Canby, Rockville, MD; Past President, Maryland State Bar Association
  • Laura Underkuffler, Duke Law School
  • Randy Ward, Texas Department of Transportation

 

Summit on Newborns in the Child Protective System

November 10, 2006

This conference will bring together legislators, judges, administrative officials, attorneys, social workers, child-development experts, and others involved in the child protective system to formulate a legislative plan for Virginia. Its aim is to improve legal decision making for newborn children whose parents are unable to care for them. Specific focus will be on refining the rules for adoption and termination of parental rights, in order to better reflect the special circumstances of newborn children. Conclusions will be drawn from empirical research, observations of experts involved in the child protective system and models of legislation from other states. This summit follows two prior Institute of Bill of Rights Law conferences in which legal scholars debated the moral, legal and social science implications of states’ decisions regarding children’s family relationships.

 

The Third Annual Brigham-Kanner Property Rights Conference

October 7, 2006

In conjunction with the Institute of Bill of Rights Law, the William & Mary Property Rights Project will honor Professor James Ely as the recipient of the third annual Brigham-Kanner Prize. The conference will include academic commentary on Professor Ely’s property rights scholarship, and a panel comparing the protection of property with other civil liberties enumerated in the Bill of Rights. CLE pending.

Participants:

  • Stuart Banner, UCLA School of Law
  • Charles McCurdy, University of Virginia, Department of History
  • John Orth, University of North Carolina School of Law
  • Gerald Torres, University of Texas Law School
  • Michael Heller, Columbia Law School
  • Michael Berger, Manatt, Phelps & Phillips, LLP, Los Angeles

 

Conference on Law and Morality

March 16-18 2006

Is law determined by morality? Or is morality determined by law? Is the relationship between law and morality static or dynamic? Fundamental questions such as these will be the focus of this two-and-one-half day conference. Professor Michael S. Moore, of the University of Illinois College of Law, will open the conference with introductory remarks on Thursday at 4:00 pm. On Friday and Saturday, a series of panels will consider the relationship of law and morality in contract, tort, property, criminal, and constitutional law.

Program Schedule:
Thursday, March 16, 2006
4:00 – 5:00
Introductory Remarks
Michael Moore (Illinois)

Friday, March 17, 2006
8:30 – 10:30 Contracts

  • Nathan Oman, Moderator, Sidley, Austin
  • Peter Alces, William & Mary School of Law
  • James Gordley University of California at Berkeley School of Law
  • Peter Benson, University of Toronto


10:50- 12:50 Torts

  • Michael Green, Moderator, William & Mary School of Law
  • Jules Coleman, Yale Law School
  • Arthur Ripstein, University of Toronto
  • Benjamin Zipursky, Fordham University School of Law
  • Heidi Hurd, University of Illinois College of Law


2:00 – 4:00 Constitutional Law

  • William Van Alstyne, Moderator, William & Mary School of Law
  • Larry Alexander, University of San Diego School of Law
  • Fred Schauer, Harvard, Kennedy School of Government
  • Kent Greenwalt, Columbia Law School


Saturday, March 18, 2006
9:30-11:30 Property Law

  • James G. Dwyer, Moderator, William & Mary School of Law
  • Carol Rose, University of Arizona College of Law
  • Thomas Merrill, Columbia Law School
  • Henry Smith, Yale Law School
  • Emily Sherwin, Cornell University Law School


1:30-3:30 Criminal Law, Parts 1 & 2

  • Cynthia Ward, Moderator, William & Mary School of Law
  • Claire Finkelstein, University of Pennsylvania Law School
  • Paul Robinson, University of Pennsylvania Law School
  • Kyron Huigens, Yeshiva University Cardozo School of Law

 

Second Annual Brigham-Kanner Property Rights Conference

Saturday, October 29, 2005

In conjunction with the Institute on Bill of Rights Law, the William & Mary Property Rights Project will honor Professor Richard Epstein as the recipient of the second annual Brigham-Kanner Prize. The conference will include academic commentary on Professor Epstein’s property rights scholarship, a discussion of recent developments in takings law, and a debate on public use doctrine in the aftermath of the Supreme Court’s 2005 Kelo v. City of New London opinion.

Participants:

  • Vicki Been, New York University Law School
  • Dana Berliner, Institute for Justice
  • James Ely, Vanderbilt University Law School
  • Richard Epstein, University of Chicago Law School
  • Michael Heller, Columbia Law School
  • Eric Kades, William & Mary School of Law

 

Task Force Roundtable: Reforming Parentage Laws

September 30 & October 1, 2005

What would be an ideal set of rules for assigning newborn children to parents? Participants in this conference will propose and defend statutory rules for state formation of legal parent-child relationships. Using social-science research on how parental characteristics and circumstances have particular effects on children, they will propose statutes to serve children’s welfare interests better than the existing rules for maternity and paternity.

Participants:

  • Elizabeth Bartholet, Harvard Law School
  • Doug Besharov, University of Maryland School of Public Affairs and Scholar in Social Welfare Studies; The American Enterprise Institute
  • Karen Czapanskiy, University of Maryland School of Law
  • Howard Davidson, ABA Center on Children and the Law
  • Nancy Dowd, University of Florida, Levin College of Law
  • James Dwyer, William & Mary School of Law
  • David D. Meyer, University of Illinois College of Law
  • Jane C. Murphy, University of Baltimore School of Law
  • Mary Welstead, Harvard University
  • Brad Wilcox, University of Virginia, Sociology Department
  • Robin Fretwell Wilson, University of Maryland School of Law
  • Barbara Woodhouse, University of Florida, Levin College of Law

 

St. George Tucker and His Influence on American Law

February 25, 2005

The 2004-2005 academic year marks the 225th anniversary of the beginning of legal education at the College of William & Mary. In January 1780, William & Mary became the first university in America to train students for the practice of law. To celebrate, we will examine the influence of St. George Tucker on American law. Tucker was the second law professor at William & Mary, and one of the most distinguished legal scholars of the late eighteenth and early nineteenth centuries. His five-volume edition of Blackstone’s Commentaries, which he published in 1803 with hundreds of pages of annotations and explanations to account for American departures from the English common law, served as one of the new country’s leading legal texts. For more than half of the nineteenth century, aspiring lawyers relied on Tucker’s edition of the Commentaries to learn the basics of American law.
In recognition, a distinguished group of legal historians will examine Tucker’s work, and its significance for the development of various American legal principles. The papers presented at this conference will be published in the William and Mary Law Review.

Participants:

  • Paul Carrington, Duke Law School
  • Saul Cornell, Ohio State University
  • Charles Cullen, President, Newberry Library, Chicago
  • Michael Kent Curtis, Wake Forest University School of Law
  • Davison M. Douglas, William & Mary School of Law
  • Paul Finkelman, University of Tulsa College of Law
  • Charles Hobson, Editor, John Marshall Papers; William & Mary School of Law
  • David Konig, Washington University, St. Louis, History Department
  • Craig E. Klafter, President, St. Catherine’s College (Oxford) Foundation
  • Kurt T. Lash, Loyola Law School, Los Angeles
  • Mark McGarvie, University of Richmond School of Law
  • William Nelson, New York University Law School

 

Dual Enforcement of Constitutional Norms

Distinguished Guest: The Honorable William H. Rehnquist, Chief Justice of the United States
November 14, 2004

Are state and federal constitutional law separate and distinct systems of law, each with its own doctrines, traditions, and dominant norms? If not, how are they related? This conference will bring leading academics together with distinguished federal and state judges to address the question of whether, and to what extent, state and federal constitutional law may profitably be understood as complementary features of a shared project of elaborating and enforcing constitutional norms.

This conference is co-sponsored by the National Center for State Courts and the Conference of Chief Justices.
Distinguished Guest & Keynote Speaker:
The Honorable William H. Rehnquist, Chief Justice of the United States
Participants:

  • The Honorable Shirley S. Abrahamson, Chief Justice, Wisconsin Supreme Court
  • James A. Gardner, State University of New York at Buffalo School of Law
  • The Honorable Leroy Hassell, Sr., Chief Justice, Supreme Court of Virginia
  • The Honorable Hans A. Linde, Willamette University College of Law, Oregon Supreme Court (Ret.)
  • Robert J. Pushaw, Jr., Pepperdine University School of Law
  • The Honorable William H. Rehnquist, Chief Justice of the United States
  • Daniel B. Rodriguez, University of San Diego School of Law
  • Jim Rossi, Florida State University School of Law
  • Lawrence G.Sager, University of Texas School of Law
  • Robert Schapiro, Emory University School of Law
  • The Honorable Randall T. Shepard, Chief Justice, Indiana Supreme Court
  • Michael E. Solimine, University of Cincinnati College of Law
  • Robert F. Williams, Rutgers University Law School - Camden
  • The Honorable Roger L. Wollman, United States Court of Appeals for the Eighth Circuit

 

The Inaugural Brigham-Kanner Property Rights Conference: Takings Law & Property Rights

Recipient: Frank I. Michelman, Harvard Law School
November 6, 2004

The inaugural Brigham-Kanner Property Rights Conference is the first of what will be an annual event to honor a scholar whose work has had a significant impact on takings and property rights law in the courts, as well as in academia. The namesakes of the award are Toby Prince Brigham, a prominent eminent domain lawyer in Florida, and Gideon Kanner, an emeritus professor at Loyola-Los Angeles Law School and practicing takings lawyer. Professor Frank Michelman is the inaugural honoree, chosen in large measure for his extremely influential article, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation Law” (Harvard Law Review 1967). In addition to commentary on the impact and continuing relevance of Michelman’s work, the conference will include a discussion of recent developments in takings litigation, judicial comments on takings law, and a point/counterpoint on the sufficiency of current property rights protections. Two CLE credits will be available.

Participants:

  • Greg Alexander, Cornell Law School
  • The Honorable Jonathan M. Apgar, 23rd Judicial Circuit, Roanoke, VA
  • Toby Brigham, Brigham & Moore, Miami, FL
  • James S. Burling, Pacific Legal Foundation
  • Linda Butler, William & Mary School of Law
  • Timothy J. Dowling, Chief Counsel, Community Rights Counsel
  • Steven Eagle, George Mason University School of Law
  • William Fischel, Dartmouth College, Economics Department
  • Eric Kades, William & Mary School of Law
  • Gideon Kanner, Berger & Norton, CA; Emeritus Professor, Loyola-Los Angeles Law School
  • The Honorable Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit
  • Richard Lazarus, Georgetown University Law Center
  • Daniel Mandelker, Washington University (St. Louis) School of Law
  • Ronald Rosenberg, William & Mary School of Law
  • The Honorable Rebecca Beach Smith, U.S. District Court, Eastern District of Virginia
  • Gregory Stein, University of Tennessee College of Law
  • Laura Underkuffler, Duke Law School

 

Implications of the Death Penalty and International Law

Co-sponsored by the Cornell Law School Death Penalty Project
April 5, 2004

This conference explores the influence of principles of international law on the administration of the death penalty in the United States. In particular, participants will consider the impact of international human rights commissions, conventions, and treaties and on the use of the death penalty in this country. Other issues to be highlighted include those pertaining to the death penalty for juveniles, consular notification, and extradition. Speakers will include both American and foreign legal scholars, government officials, and diplomats.

Participants:

  • Sandra Babcock, Mexican Capital Legal Assistance Program
  • John Blume, Cornell Death Penalty Project
  • Catherine Brown, US State Department
  • David Cupina, Committee on Legal Affairs and Human Rights, Parliamentary Assembly of the Council of Europe
  • Dave Douglas, William & Mary School of Law
  • Steve Garvey, Cornell Death Penalty Project
  • Roger Groot, Washington and Lee University School of Law
  • Sheri Johnson, Cornell Death Penalty Project
  • Linda Malone, William & Mary School of Law
  • Ved Nanda, University of Denver College of Law
  • Muna Ndulo, Institute for African Development Cornell Law School
  • Wendy Patten, Human Rights Watch
  • Carlos Quesnel, Chargé of Legal Affairs, Mexican Embassy, Washington, D.C
  • John Quigley, Ohio State University Moritz College of Law
  • William Schabas, National University of Ireland, Galway
  • Andre Surena, U.S. Department of State (retired)
  • Dr. Brian Tittemore, Inter-American Commission on Human Rights
  • Mark Warren    , Human Rights Research - Canada

 

International Conference on the Legal and Policy Implications of Courtroom Technology

Co-sponsored by the Courtroom 21 Project, William & Mary School of Law
February 13-14, 2004

Courts are installing technology of all types in their courtrooms, including reporting, evidence-display, and remote-appearance technologies. This conference will examine the fundamental fairness issues surrounding the use of these innovations, and ponder their impact on our legal system.

Participants:

  • The Honorable Jeremy Barnett, Leeds, (United Kingdom)
  • Peter Blanck, University of Iowa
  • The Honorable Henry Brooke, Lord Justice of Appeal (England and Wales)
  • The Honorable Nancy Gertner, United States District Judge for the District of Massachusetts
  • Iria Giuffrida, PhD Candidate, Queen Mary College, England
  • Richard Herrmann, Blank Rome, LL.P
  • Kenneth Hirsh, Duke Law School
  • Fredric Lederer, William & Mary School of Law
  • Ros MacDonald, Queensland University of Technology School of Law, Australia
  • The Honorable Richard Magnus, Subordinate Courts of Singapore, Senior District Judge
  • Nancy Marder, Chicago-Kent College of Law
  • Wayne Miller, Duke Law School
  • Amy Moeves, United States Court of Appeals for the Armed Forces
  • Daniel Stepniak, University of Western Australia Law School
  • Elizabeth Wiggins, Federal Judicial Center

 

Property Rights and Economic Development

February 28, 2003

This conference will focus on the role that property rights play in economic development. The phrase “property rights” as used here is broadly defined, covering not only land or tangible assets, but also rights in business organizations. Motivation for examining this topic comes from scholarship both old and new. Although there will be a significant emphasis on the economic analysis of property rights regimes, the conference will also consider sociological and anthropological paradigms.

Participants:

  • Timothy Besley, London School of Economics
  • Robert C. Ellickson, Yale Law School
  • Michael Heller, University of Michigan Law School
  • Eric Kades, William & Mary School of Law School
  • James E. Krier, University of Michigan Law School
  • Gary Libecap, University of Arizona, Department of Economics
  • Brett McDonnell, University of Minnesota Law School
  • Ruth Meinzen-Dick, International Food Policy Research Institute
  • Thomas W. Merrill, Northwestern University Law School
  • Joyce Palomar, University of Oklahoma Law School
  • Troy Paredes, Washington University in St. Louis Law School
  • Andrzej Rapaczynski, Columbia Law School

 

The Militia and the Right to Bear Arms

January 24, 2003

In examining what meaning the Second Amendment has today, this conference will assess H. Richard Uviller and William G. Merkel's book The Militia and the Right to Arms. Arguing that the type of citizen militia referred to in the Second Amendment no longer exists and could not be recreated, Uviller and Merkel claim that the Amendment is little more than a vacant and meaningless sequence of words.

Participants:

  • Randy Barnett, Boston University School of Law
  • Paul Finkelman, University of Tulsa College of Law
  • William Merkel, Oxford University
  • Sanford Levinson, University of Texas School of Law
  • Jonathan S. Simon,,University of Miami School of Law
  • H. Richard Uviller, Columbia Law School

 

Congress and the Constitution

Co-sponsored by The William & Mary Thomas Jefferson Program in Public Policy
October 18-19, 2002

When does Congress take a hard look at possible constitutional objections to its handiwork? How do staffing, committee-structure, and party-leadership issues affect Congress's consideration of constitutional matters? How does Congress take the preferences of the other branches into account? Are deficiencies in the current system easy to correct? In exploring these and other questions, this conference will bring together political scientists, law professors, and former government officials.

Participants:

  • David P. Currie, University of Chicago School of Law
  • Neal Devins, William & Mary School of Law
  • Mechele Dickerson, William & Mary School of Law
  • Lou Fisher, Senior Specialist in Separation of Powers, Congressional Research Service
  • Elizabeth Garrett, University of Chicago School of Law
  • Michael J. Gerhardt, William & Mary School of Law
  • Elena Kagan, Harvard University Law School
  • Michael Klarman, University of Virginia School of Law
  • Bruce G. Peabody, Fairleigh Dickinson University, Department of Social Sciences and History
  • J. Mitchell Pickerill, Washington State University, Department of Political Science
  • Barbara Sinclair, University of California at Los Angeles, Department of Political Science
  • Adrian Vermeule, University of Chicago School of Law
  • Keith E. Whittington, Princeton University, Department of Politics
  • John Choon Yoo, U.S. Department of Justice, Office of Legal Counsel; University of California at Berkeley School of Law

 

Disability and Identity

October 27, 2001

This conference will address legal and philosophical issues pertaining to the disabled. The papers presented at this conference will be published in the William and Mary Law Review.

Participants:

  • Samuel Bagenstos, Harvard Law School
  • Robert M. Bell, Chief Judge, Court of Appeals of Maryland
  • Peter Blanck, University of Iowa College of Law
  • Susanne Bruyere, Cornell University School of Industrial and Labor Relations
  • Davison Douglas, William & Mary School of Law
  • Stewart Schwab, Cornell Law School
  • Anita Silvers, San Francisco State University, Department of Philosophy
  • Aviam Soifer, Boston College Law School
  • Chen Song, Resolution Economics
  • Michael Stein, William & Mary School of Law
  • Susan Stefan, Center for Public Representation
  • J. Hoult Verkerke, University of Virginia School of Law
  • Amy L. Wax, University of Pennsylvania Law School
  • Steven Willborn, University of Nebraska College of Law

 

Religion in the Public Square

March 24, 2000

The conference will address the role religion plays in public life. Issues to be discussed include the appropriateness of religion-based argument in public discourse, and government cooperation with faith-based social service providers, as well as school vouchers and school prayer. Some time will also be spent on theoretical considerations of the interplay in the Constitution between the free exercise, and the establishment of religion.

The papers presented at this conference will be published in the William and Mary Law Review.

Participants:

  • Lisa Bressman, Vanderbilt University Law School
  • Neal Devins, William & Mary School of Law
  • Jim Dwyer, University of Wyoming College of Law
  • Carl Esbeck, University of Missouri School of Law
  • Marci Hamilton, Yeshiva University Cardozo School of Law
  • Ira Lupu, George Washington University School of Law
  • Michael Perry, Wake Forest University School of Law
  • Stephen Smith, Notre Dame University Law School

 

Bosnia and the Balkans: Conflict and Reconstruction

April 9-11, 1999

For the better part of a decade, news of the Balkan conflict has generated great international concern. The break-up of Yugoslavia, and the ongoing friction in Bosnia and Kosovo raise difficult questions about such issues as ethnic cleansing, war criminals, and the treatment of refugees. To address these and other topics, the William & Mary School of Law will host a conference of distinguished international experts from a variety of fields, including law, economics, journalism, political science, and foreign service. Their knowledge of the region will guide us through examination of the complex history leading up to the present situation, and explore the difficulties involved in reconstructing a peaceful society after years of internal conflict.
The conference is sponsored jointly by William & Mary’s Institute of Bill of Rights Law, the Reves Center for International Studies, and the Council for America's First Freedom in Richmond, Virginia. The conference is presented as part of the Borgenicht Initiatives in International Peace, which are administered by the Reves Center and made possible by a generous gift from Mr. Jack Borgenicht.

 

Fidelity, Economic Liberty, and 1937

February 27, 1999

The past three decades have witnessed a resurgence of substantive due process. In particular, courts have relied upon this doctrine to protect certain personal rights, such as the right to use contraceptives, the right to abortion, and the right to refuse medical treatment. Moreover, prominent scholars have urged courts to employ substantive due process to recognize new rights, including, for instance, the right to rely upon a physician’s assistance to commit suicide. At the same time, courts have been steadfast in their refusal to accord any protection to so-called economic liberties, such as liberty of contract and liberty of occupation. Indeed, since 1937, no regulation of these rights has failed substantive due process review.
This conference at the William & Mary School of Law will examine whether the disparate treatment of economic and non-economic liberties can be explained as a faithful rendering of the original meaning of the due process clauses. The conference will not reopen the controversy over whether the clauses provide substantive protection for certain liberties. Instead, participants will explore whether there is any legitimate justification for according protection to so-called personal rights while at the same time refusing protection for economic rights. Legal scholars from a variety of perspectives will present original papers on this question; discussion will follow.

Participants:

  • David Bernstein, George Mason University School of Law
  • Rebecca Brown, Vanderbilt University Law School
  • Barry Cushman, University of Virginia School of Law
  • James Fleming, Fordham University School of Law
  • John Harrison, University of Virginia School of Law
  • Lawrence Lessig, Harvard Law School
  • John McGinnis, Yeshiva University Cardozo School of Law
  • Alan Meese, William & Mary School of Law