The theme–Teaching Social Justice, Expanding Access to Justice:  The Role of Legal Education & the Legal Profession–will invite discussion about two crucial aspects of legal education: innovative efforts to advance social justice within the law school curriculum and important efforts to extend access to justice to underserved individuals and communities.

Download a PDF of the SALT Call for Panels & Papers. 

The battle to separate the economic analysis of legal rules and institutions from the straightjacket of strict rational choice assumptions has been won by the proponents of “behavioral law and economics.” With the “revealed preferences” assumption of neoclassical economics—that individual behavior necessarily maximizes subjective expected utility—discarded, what comes next for the discipline of law and economics? This Article argues that theorists should turn their attention to a series of philosophical and methodological problems that surround the measurement of subjective expected utility: (1) the need to recognize and value autonomy for its own sake, separate from its ability to enhance utility; (2) the need to advance a theory of subjective utility that takes into account the use of heuristics in the construction of preferences as well as in understanding facts and judging probabilities; and (3) the need to recognize and confront the consequences of individual difference in the extent of bounded rationality.

This Article questions the experimental value of state immigration laws. Analyzing the Supreme Court’s major decisions in this area, including Chamber of Commerce v. Whiting, the Article explains why state immigration laws fail to satisfy two necessary conditions of effective experimentation: internalization and replication. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms — far from the type of diverse testing associated with true innovation.

Today’s state immigration laws also fail to internalize costs — another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states but are felt by the nation as a whole.

Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies.

The prize is named for John Hope Franklin, a professor of history and law whose interdisciplinary research documented the history of racism and its effects, whose scholarship had both national and international influence, and whose commitments to intellectual freedom, professional service, and civic activism were resolute.

While there is not a limit on the number of articles one may nominate, an article may not be considered for the John Hope Franklin prize and another LSA prize. The decision in determining whether an article should be submitted for consideration by the Franklin prize committee rather than another LSA prize committee rests with the article’s nominator in consultation with the author.

The committee to select the year 2012 recipient of the award includes Tonya Brito, chair (Law, University of Wisconsin), Mario Barnes (Law, UC Irvine), and Tanya K. Hernandez (Law, Fordham University), Blanca G. Silvestrini (History, University of Connecticut), and Kaimipono D. Wenger (Thomas Jefferson School of Law).

Nomination Process: Nominations may be submitted by authors or others.  Articles and letters of nomination must be submitted as an attachment in Word.doc or PDF.pdf format by February 1, 2012 to this address: franklin_prize_nom@lawandsociety.org.