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I am grateful to Professor Vischer and Professor Wendel for their responses to my essay, Professionalizing Moral Deference; I learned a great deal from each piece. I also appreciate their patience in enduring my finalization of the essay and am indebted to them both for their personal indulgence and intellectual stimulation. The aim of my earlier essay was to open a new discussion of lawyers and morality through my reflections on the so-called “Torture Memo.” Specifically, my essay focuses on the effect of legal training and practice on lawyers’ moral reasoning. It explores the ways in which we, as lawyers, “come to engage in . . . strategic reasoning,” and express “concern[] about [the] cost to our moral reasoning skills.” The core argument is that “lawyers are professionalized in a manner that undermines moral reasoning skills,” and that “[t]o suggest that we who are officers of the American judicial system are deficient in moral reasoning is to suggest a deep problem.” To address this deep problem, I suggest lawyers accept personal moral accountability for professional projects undertaken, idealizing those lawyers who choose their professional projects on personal moral grounds. Thus, I believe lawyers—such as the authors of the Torture Memo—are subject to criticism on grounds of morality and not merely professional technique. The responses of Professor Vischer and Professor Wendel, though thought-provoking, do not address my focus on the effect of legal training and practice on lawyers’ moral reasoning. Instead, the responses of Professor Vischer and Professor Wendel focus on the role of moral reasoning in legal reasoning.

You are sitting in an empty bar (in a town you’ve never before visited), drinking a Bacardi with a soft-spoken acquaintance you barely know. After an hour, a third individual walks into the tavern and sits by himself, and you ask your acquaintance who the new man is. “Be careful of that guy,” you are told. “He is a man with a past.” A few minutes later, a fourth person enters the bar; he also sits alone. You ask your acquaintance who this new individual is. “Be careful of that guy, too,” he says. “He is a man with no past.” Which of these two people do you trust less? You are a juror sitting in a courtroom (a place you’ve never visited), hearing an opening statement by a loud-mouthed lawyer you barely know. After an hour, a first witness walks into the courtroom and sits by himself on the witness stand. The lawyer’s cross-examination of the witness implies, “Be careful of that guy. He is an illegal alien.” A few minutes later, a second witness enters the courtroom; he also sits alone on the stand. The lawyer’s cross-examination of the witness implies, “Be careful of that guy. He cheats on his wife.” Which of these two people do you trust less? According to the recent opinion of one federal appellate court, the illegal alien is the answer, and the second line of interrogation is prohibited. In United States v. Almeida-Perez, the Eighth Circuit found that an extensive interrogation into the immigration statuses of defense witnesses was not plain error. The court relied upon First and Second Circuit opinions that found that the way individuals enter this country is relevant to their character for truthfulness. In reaching its conclusion, the Eighth Circuit also acknowledged—but was ultimately unpersuaded by—an analogous Eleventh Circuit decision. The Eleventh Circuit found that a district court erred when it allowed the State to question three defense witnesses about a letter written by the defendant/appellant, which proposed an adulterous liaison, because the letter did“not directly relate to the Appellant’s truthfulness and honesty.” The Eleventh Circuit’s opinion was in line with precedent from across the country, which generally holds that witnesses cannot be impeached through acts of misconduct unless such acts bear directly on their truth-telling capacity; evidence that a witness has engaged in unlawful trespass, the act most similar to entering this country illegally, cannot be used to impeach the witness under such cases.

The facts of Pleasant Grove City v. Summum are well known by now: Summum, a small religious group, argued that Pleasant Grove City violated the Free Speech Clause of the First Amendment when it refused to display Summum’s monument in the city’s Pioneer Park, which already contained fifteen other monuments, including a Ten Commandments display. Summum’s unlikely claim won in the Tenth Circuit Court of Appeals, a request for rehearing was denied, and the case ultimately was heard before the U.S. Supreme Court. During the oral arguments, the Justices (along with commentators, Court watchers, and, of course, the litigants themselves) were fully aware that the Summum litigation presented a double-edged sword. If Pleasant Grove argued too vigorously the theory that the existing Ten Commandments monument constitutes the city’s own message, then it risked violating the Establishment Clause in a follow-up lawsuit based on the same facts. If, on the other hand, Pleasant Grove attributed the monument’s message to its 1971 donor, then the city would be hard-pressed to explain why Pioneer Park was not, as Summum claimed, a public forum that must be potentially open to all monuments without discrimination based on content or viewpoint. The tension pervaded the oral argument. Chief Justice Roberts opened the discussion with an observation that the city was in a double-bind. Justice Scalia guided the city’s lawyer into a discussion of Van Orden v. Perry, a 2005 case in which the Court upheld the constitutionality of a public Ten Commandments display. Justice Souter pondered the possibility of discrimination. And Summum’s lawyer frankly acknowledged that the city was “on the horns of a dilemma” facing either a Free Speech or an Establishment Clause violation. Ultimately, however, the U.S. Supreme Court unanimously decided that in selecting monuments for Pioneer Park the city was engaged in government speech; the city could therefore control the content of its message without violating the Free Speech Clause. Significantly, the Court found that the city need not formally adopt the message of an existing park monument in order for that monument to constitute government speech. The stage was set for Summum’s Establishment Clause claim, but that claim would have to wait for another day.

Reconceptualizing Trespass, by Professors Gideon Parchomovsky and Alex Stein, falls in the genre of law and economics scholarship inspired by Guido Calabresi and A. Douglas Melamed’s classic article, One View of the Cathedral (“the Cathedral”). Reconceptualizing Trespass argues that, in property torts, scholarship under the Cathedral has focused too much on damage awards with the features of Cathedral liability rules, and too little on damage awards that have the features of Cathedral property rules. Ideally, the authors argue, property rule damages should award owners approximations of their subjective values over their property; as a second-best substitute, such damages should award owners restitution. In this Response, I am significantly disadvantaged by the limitation that I sympathize strongly with Parchomovsky and Stein’s prescriptions. Nevertheless, I am confident that I can offer an enlightening perspective on their essay, because I prefer to reach their prescriptions by a different method: the conceptual and moral philosophy behind property law. From the perspective of those fields, Reconceptualizing Trespass presents a mixed but extremely interesting picture. If we focus closely on Reconceptualizing Trespass’s doctrinal proposals about trespass damages, the Essay is right: it uncovers important evidence corroborating existing philosophical scholarship on damage remedies for property torts, and it highlights an important gap in that scholarship. From a broader perspective, however, Reconceptualizing Trespass confirms criticisms that legal philosophers have lodged against the Cathedral’s property/liability rule scheme. Many legal scholars regard the Cathedral as a landmark, and it seems to frame clearly the policy questions latent in remedies disputes without settling them in any particular way. Yet legal philosophers have raised serious questions about whether the property/liability scheme remains faithful to basic legal concepts—especially the “wrong” that damage awards are supposed to remedy in torts to victims’ autonomy interests, or the “exclusivity” that property guarantees owners in relation to their assets. Although Reconceptualizing Trespass makes several significant contributions, legal philosophers may fairly wonder whether its greatest contributions confirm their criticisms of the Cathedral’s approach to remedies.

There are enough questions on the table to get us going, so I’ll focus on responding to some of them. First, to an issue raised by Salil Mehra and Tom Ginsburg, I generally follow the approach taken by Trubek and Santos in The New Law and Economic Development. Their approach defines the field (“doctrine”) of Law and Development to encompass the activities of legal assistance providers, as well as the ideas about law, and about development economics, that animate their work. There are different strategies for studying the providers’ activities, and Terence Halliday and Bruce Carruthers’s research for their book, Bankrupt, provides an outstanding example of the detailed sociological work some Law and Development scholars undertake. But the academic enterprise doesn’t really seem separable from the activities of the providers. We could discuss the pros and cons of that dependence, but I do not think we can avoid it. The institutional players in the field rise and fall in importance over time, the ideologies concerning law and economics that animate their work change over time, the external environment affecting the institutions changes over time, and this complex, dynamic stew provides the academic core of Law and Development. The academic field is not merely the sum of the projects, as Tamanaha appears set to argue, but is instead the study of those projects in their political, historical, and ideological contexts. The problem this background poses for the scholar is that he or she must first figure out a level of engagement with the institutional players that will allow the scholar to understand what is actually going on inside them, and in their relations with national governments, while leaving the scholar free to provide serious academic analysis and critique. I sometimes joke that Law and Development is a field where those who know don’t talk, and those who talk don’t know, but it is actually a serious problem for a scholarly field.

The issue of evolution instruction in American public schools is becoming increasingly complex, both legally and politically. Until recently, the controversy over whether and how to teach evolution in public school science classes has been singularly focused on the constitutional limits of government support for religion under the First Amendment’s Establishment Clause. Current measures in Louisiana and Texas, however, represent a shift toward a new “adjudicative model” for addressing questions of evolution instruction. This adjudicative model permits individual educators to treat evolution issues on a case-by-case basis, which, in turn, implicates a new constitutional issue in the evolution education debate: procedural due process. By creating powerful disincentives for anti-evolutionist policymakers, procedural due process concerns could affect the future of evolution education even more profoundly than does the Establishment Clause. This Essay explores the relationship between evolution education policy and procedural due process by first identifying and defining the adjudicative model. It then considers the model’s constitutional ramifications for evolution instruction, concluding that this new approach to policymaking introduces procedural due process concerns that radically alter the legal and political calculus of the debate over evolution education.

This Symposium has been a wonderful forum for identifying a number of challenges that Law and Development will face going forward. Like many of the contributors, I have thought about these issues as both an academic and as a practitioner/government adviser. I have concluded that the Law and Development movement suffers from both an inability to get good results (if we could figure out what “good” results actually are) and a lack of follow up regarding implementation efforts. As to the former, it is not clear to me that those of us in the field actually know what results we want to achieve—or that we can actually (and accurately) measure them. Mariana Prado noted that in some areas it is easy to gauge success, such as in antitrust or telecoms. If telecom prices go down, Prado suggests, the antitrust suit is successful. I would argue that quantifying success is not so easy, even in these areas. In many cases, looking at easily quantifiable measures such as case counts or the number of successful prosecutions does not in fact measure success. Agencies might bring lots of small but unimportant antitrust cases to raise their number of wins. Moreover, agencies might bring a “winning” case even if the underlying economics behind the case do not mesh with any real consumer loss. For example, in a given developing world country, competitors might push the agency to bring a series of vertical restraints cases against efficient competitors. Finally, even if lower telecom rates result from an antitrust win, is such a win really a success of Law and Development? We have serious endogeneity issues in trying to attribute reduced telecom rates to a particular technical assistance intervention. It could be that rates would have gone lower regardless of the antitrust case. Foreign entrants, changes in technology across platforms (such as voice over internet or wimax), or a change in tariff policy by the telecom regulator may have affected telecom rates.

In When Obscenity Discriminates, I argued that the First Amendment’s obscenity doctrine has generated discriminatory collateral effects against gays and lesbians, and that those collateral effects generate a need to refine the obscenity doctrine in light of the Supreme Court’s decision in Lawrence v. Texas. In his response, If Obscenity Were to Discriminate, Professor Barry McDonald agrees with my essay’s “core insight—that the Miller obscenity test should be applied in a manner that is neutral as to the sexual orientation of the pertinent actors,” and notes that this insight “appears to have substantial support in basic principles of the Court’s equal protection and First Amendment jurisprudence.” McDonald builds from that “core insight” by “tak[ing] the liberty of recasting these arguments as more modest claims that the obscenity doctrine needs to be modified in light of Lawrence in order to achieve a principled and coherent constitutional jurisprudence as it relates to the Court’s treatment of gay sex.” However, the “more modest claim[]” that McDonald purports to make is, in fact, the claim made in my essay, namely, to “refin[e]—but not overturn[]—the obscenity test set forth in Miller” so that it distinguishes between sex and sexual orientation. Thus, despite Professor McDonald’s perception to the contrary, he and I are in closer agreement about the doctrine’s needed changes. On some points, however, we do divide, and our division derives from two sources. First, and most fundamentally, we disagree about how to measure doctrinal effect. Although McDonald and I agree that the obscenity doctrine should not be applied in a way that is biased toward homosexual content, he and I part ways on the issue of determining when to measure the effects of a biased obscenity test. For McDonald, unless and until the obscenity test is applied in a court of law in a biased manner—that is, unless and until a work which would not constitute obscenity but for its homosexual content is held to be unprotected—the obscenity test has not generated any discriminatory effect. This source of disagreement is fundamental because it divides McDonald and me on the question of implementation and, ultimately, on whether the obscenity doctrine merits refinement. To McDonald, the obscenity doctrine is fine as is unless and until it is misapplied in court; I believe, on the other hand, that the doctrine’s discriminatory effects are inherent to the test used and thus the doctrine merits refinement even absent “misapplication” in court. Part II of this Reply responds to McDonald’s objections that derive from our disagreement on measuring doctrinal effect.

Reports of the death of Title VII’s disparate impact theory of discrimination in the wake of Ricci v. DeStefano may be exaggerated. Widely praised and widely criticized in the newspapers and the blogosphere, Ricci is the latest, but not the last, chapter in a long-running feud between Congress and the Supreme Court regarding disparate impact. As the Supreme Court summarized the theory in International Brotherhood of Teamsters v. United States,disparate impact discrimination is the use of “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” First announced by the Supreme Court in Griggs v. Duke Power Co., the theory required a plaintiff to establish a prima facie case of disparate impact discrimination by showing that the challenged employment practice, although facially neutral in its treatment of different groups, in fact fell more harshly on one group, say African Americans or women, than another group, say whites or males. Once that prima facie case was established, the defendant had the burden of persuading the court that a “business necessity” or “job relation” justified the challenged practice. When the challenged practice was a test with a disparate impact, the employer carried this burden by establishing its validity under technical testing standards developed originally by industrial psychologists and later articulated in federal agency guidelines.

I would like to take up Anna Gelpern’s invitation to define the study of Law and Development broadly and to reject the presumption that the inquiry will focus narrowly on the law-related projects of bilateral aid agencies and international organizations. I am interested in the relationship between law on the one hand and, on the other hand, development (however defined), and it is not clear to me that externally directed “Law and Development” projects are always central to understanding that relationship. (Isn’t that a reasonable inference to draw from all of the studies that question the impact of those projects?) Don’t get me wrong, I think it is often crucially important to take foreign actors into account when trying to understand where the “law” part of the equation comes from, as well as what factors besides law might be influencing development. But I am skeptical of the notion that foreign actors are always central to the story, especially in some of the larger developing countries; do we really understand the legal systems of Brazil, India, and China best by focusing on the components influenced by the World Bank and the IMF? As far as the future of Law and Development is concerned, I believe that it will and should involve becoming even more of a social science. I also believe, however, that the contributions to this Symposium have identified many of the pitfalls that lie in that direction. To begin with, there are obviously methodological questions about what empirical methods are best suited to uncovering the kinds of causal relationships between law and social outcomes we are looking for and theoretical questions about what legal and social variables ought to be measured. But I think that there are even more profound questions to be asked about the entire enterprise, especially if the purpose is to give policymakers insights into “what works.”