AEI-Brookings Joint Center for Regulatory Studies
J O I N T
Judicial Education Program
C E N T E R
AEI-BROOKINGS JOINT CENTER FOR REGULATORY STUDIES
June 30, 2005
To Our Friends and Supporters:
By all measures, the 2004-2005 academic year was a banner year in the short life of the AEI-Brookings Judicial
Education Program. Demand for our flagship program, the Economics Institutes for Judges, continued to increase. Over
400 judges have participated in the Economics Institutes since the JEP commenced operations in October 2003.
The JEP is committed to meeting the needs and interests of the judiciary for timely educational programs on
substantive legal issues. For example, in response to the heated debate generated by the United State Supreme Court's
decision in State Farm v. Campbell, the JEP held a Judicial Symposium on "Punitive Damages: The Law, The Jury and
The Judge" at Georgetown University Law Center in September 2004. This symposium was a highlight of the year for
the JEP—clearly demonstrating the value of our affiliation with two of Washington's most respected think tanks. The
JEP offered two additional Judicial Symposia—"Critical Issues in Construction Defects Litigation" in January 2005 and
"Critical Issues in Toxic Torts Litigation" in April 2005. Over 380 judges attended JEP Symposia in 2004-2005.
The JEP also offered an Advanced Law & Economics Institute on "Punishing Corporate Misconduct" which was
attended by over 60 judges in December 2004. This program included detailed discussions of salient issues such as
"Overcriminalization of Commercial Activity and its Consequences" and "The Erosion of Attorney-Client Privilege."
This Advanced Institute was so well received by the judges that it will be offered again as a Judicial Symposium on "The
Law and Economics of Punishing Corporate Misconduct" in November 2005.
This Annual Report provides detailed information about the JEP, our programs, and our plans and budget for the 20052006 academic year. A full slate of programs is scheduled for 2005-2006—including six separate weeks of the Economics
Institute, two Judicial Symposia, and a new initiative in support of Business Courts. There are 750 slots available for
judges to attend JEP programs in 2005-2006.
I welcome any comments or suggestions you may have about the information contained in this report. I am pleased
to be looking forward to such a full year. On behalf of the Joint Center and the hundreds of judges who benefit from
our programs, thank you.
Sincerely,
Henry N. Butler, J.D., Ph.D.
Director, Judicial Education Program
Judicial Education Program • 3943 Irvine Boulevard, #286, Irvine, CA 92602-2400 • 714-731-2292 • Fax 714-731-2291 • www.aei-brookings.org
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
TA B L E O F C O N T E N T S
Executive Summary ........................................................................................................................................................................................................... 1
Background: The Role of Judicial Education in a Fair and Just Society ...................................................................................................................... 1
Educational Programs ........................................................................................................................................................................................................ 2
The Economics Institutes for Judges ............................................................................................................................................................. 3
Judicial Symposia ............................................................................................................................................................................................ 4
Advanced Law & Economics Institutes ......................................................................................................................................................... 5
Judicial Attendees by State and Court ......................................................................................................................................................... 6
Program Calendar: 2004-2005 ....................................................................................................................................................................... 9
Program Calendar: 2005-2006 ....................................................................................................................................................................... 9
Governance and Management of the AEI-Brookings Joint Center JEP .................................................................................................................... 10
Judicial Advisory Board ................................................................................................................................................................................ 11
Budget and Funding Requirements ............................................................................................................................................................................... 12
Contributor Information .............................................................................................................................................................................. 12
Contributors .......................................................................................................................................................................................................................13
Appendices ....................................................................................................................................................................................................................... 15
I.
Mission Statement: AEI-Brookings Joint Center for Regulatory Studies .........................................................................................15
II.
Agenda: Economics Institutes for Judges, Week One, March 2005 .................................................................................................16
III.
Agenda: Economics Institutes for Judges, Week Two, May 2005 ....................................................................................................19
IV. Agenda: Judicial Symposium on Punitive Damages: The Law, The Jury,
and The Judge, Georgetown University Law Center, September 22-24, 2004 ...............................................................................22
V.
Agenda: Judicial Symposium on Critical Issues in Construction Defects Litigation,
Washington Hilton Hotel, January 27-28, 2005 .................................................................................................................................25
VI. Agenda: Judicial Symposium on Critical Issues in Toxic Torts Litigation,
Georgetown University Law Center, April 28-29, 2005 .....................................................................................................................28
VII. Agenda: Advanced Law & Economics Institute on Punishing Corporate Misconduct,
December 13-15, 2004 ..........................................................................................................................................................................31
VIII. The Brookings Institution Tax Determination Letter ........................................................................................................................34
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
AEI-Brookings Judicial Education Program
Executive Summary
The Problem:
Our civil justice system is imposing tremendous burdens on our society.
From exorbitant jury awards to regulation through litigation to abuses of
class actions, litigation or the threat of litigation is diverting the attention
of American business leaders from their primary economic purpose.
The Cause:
Lack of judicial knowledge is a major cause of this problem. Although
judges routinely hear cases involving complex issues of economics,
finance, accounting, statistics and science, many lack the basic
knowledge in these disciplines necessary to assess these cases properly.
This lack of knowledge undermines the fundamental principles of a
free and just society.
The Solution:
To address this problem, the AEI-Brookings Joint Center Judicial
Education Program (JEP) presents carefully targeted educational
programs. The AEI-Brookings Joint Center is a program of two of the
most respected think tanks in Washington—the American Enterprise
Institute and the Brookings Institution. The JEP offers a timely,
relevant and intellectually stimulating range of programs:
• Economics Institutes for Judges: This flagship program
addresses fundamental issues that often are at the heart of
legal disputes. Over a two-week period, judges are given a
solid grounding in economics, finance, accounting,
statistics, and scientific method. The practical relevance of
these disciplines is emphasized through the analysis of
numerous cases. The judges leave equipped with a basic
knowledge that will aid them in the performance of their
jobs, which, in turn, will enhance the civil justice system.
•
Judicial Symposia: The symposia provide an analysis of
current legal and public policy issues in a dynamic format
combining lectures and debates. Over two days, leading
attorneys and legal scholars provide a basic grounding in
fundamentals and debate the issues from opposing
viewpoints. These timely programs effectively alert the
judiciary to emerging challenges in substantive legal matters.
• Advanced Law & Economics Institutes: These programs
provide timely analyses of public policy issues that are
relevant to the judiciary. They build upon the basic lessons
of the Economics Institutes by providing judges with
knowledge necessary to address new or unfamiliar areas.
The value of such programs is demonstrated by their success in
attracting judges—over 1,800 judges have participated in JEP programs
at AEI-Brookings and predecessor programs at the University of
Kansas and Chapman University. The strong reputations of both AEI
and Brookings for providing objective, non-partisan policy research
make the JEP an attractive venue for judges, who are often reluctant
to attend privately-funded programs because of concerns over
funding sources, ideological bias, or academic rigor. The JEP presents
an unprecedented opportunity to improve our nation’s judiciary.
Funding Needs:
The JEP has an annual budget of approximately $2.0 million. The JEP
relies on generous contributions from foundations, corporations, law
firms, and judges to offer these programs at minimal financial cost
to the judges. The Brookings Institution, a 501(c) (3) corporation,
accepts gifts made in support of the Judicial Education Program.
Background: The Role of Judicial Education
in a Fair and Just Society
A well-informed and well-educated judiciary is essential to a sound
civil justice system. Judges routinely hear cases involving complex
issues of economics, finance, accounting, statistics, and science.
Unfortunately, most judges lack the basic knowledge in these
disciplines necessary to distinguish between valid and invalid
arguments. This educational void means that litigants do not meet
on a level playing field. This void threatens the fundamental
principles of a fair and just society.
... That week provided me with more useful information
than many other seminars combined. The class confirmed
many things that I knew from observation and also placed
those things known into a framework with other things
not previously known. The lessons learned have been put
into practice. So many judges need to have that kind of
educational background. It’s amazing that I made decisions
without that kind of knowledge.
Judge Scott S. Anders
District Court of the State of Washington for Clark County
... On a nationwide basis we are electing and appointing
younger judges, many of whom lack exposure to
commercial litigation. The Economics Institute for Judges,
in particular, offers judges valuable insight in economic
principles. When I went to undergraduate school there was
no course in microeconomics and when I went to law
school there was no course in law and economics. Your
programs fill a void. All who have attended any of them
come away with valuable insight and are better judges for
the experience.
Associate Justice Paul L. Rudman
Supreme Judicial Court of Maine
To fill the educational void that exists for our judiciary, two of the
nation’s most renowned think tanks—the American Enterprise
Institute (AEI) and the Brookings Institution—are collaborating to
offer the AEI-Brookings Judicial Education Program under the
auspices of the AEI-Brookings Joint Center for Regulatory Studies.
The JEP’s mission is:
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Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
... to improve the civil justice system by providing rigorous,
balanced, high-quality educational programs with a focus
on economics, finance, accounting, statistics, scientific
method and legal policy to the nation’s judiciary as a
public service and at minimal personal financial cost to
the judges.
The operation of JEP under the umbrella of two of the most credible
think tanks in Washington is a new chapter in privately funded
judicial education programs. Judges who may have been hesitant to
attend other economics-focused judicial education programs because
of concerns about funding sources, ideological bias, or the possibility
that the programs will be attacked as junkets, can feel comfortable
attending programs sponsored by these two well-respected entities.
The AEI-Brookings Joint Center is an ideal venue for educating judges.
The AEI-Brookings Judicial Education Program conducted its first
course in October 2003. JEP courses are in high demand and have
been oversubscribed very rapidly after being announced.
Presentations by nationally known experts from AEI and Brookings
provide incredible intellectual might to the JEP’s courses. For
example, judges have been treated to lectures on “The Airline
Industry after 9/11” by Brookings Senior Scholar Clifford Winston,
“The Impact of Drug Price Controls on R&D” by AEI Resident Scholar
Robert Helms, and “The Hidden Costs of Sarbanes-Oxley” by AEI
Resident Scholar Peter Wallison.
The AEI-Brookings Judicial Education Program has revived the judicial
education programs that had been offered by the Law and
Organizational Economics Center (LOEC) at the University of Kansas
and Chapman University. Between 1995 and 2002, over 1,000 state
court judges had attended JEP economics-based programs. Clearly, by
their numbers, judges have demonstrated their desire for serious,
non-legal training by attending these programs. Now with the ability
to draw on the impeccable reputations of AEI and Brookings for
providing objective, non-partisan policy research, privately funded
judicial education programs are more accessible to judges. The AEIBrookings JEP is uniquely positioned to address a major problem facing
our civil justice system. The judges have responded—over 560 judges
have participated in at least one JEP program since October 2003.
... I believe the AEI-Brookings Joint Center is performing a
public service in offering symposiums for judges and I will
continue to encourage judges to attend future programs.
As you are aware, I’ve been responsible for the attendance
of a great number of my peers. Every one of them have
returned after attending with complimentary comments
and enthusiasm for the quality of education they received.
Judge Thomas I. McKnew, Jr.
Los Angeles County Superior Court
... the most valuable and relevant course I have had the
privilege to attend in my thirty years on the bench. The
members of the class uniformly expressed the same opinion.
Judge Robert H. Gorman
Ohio Court of Appeals
Over my twenty-eight years as a trial judge, I have attended
numerous programs all over the United States and the
world as they apply to the education of the judiciary. I have
found that this program not only educates judges, but also
performs the task with unbelievable talent and grace. Every
morning when I got up to go to class I looked forward to
hearing the lectures and speakers that would be presenting
for that day. I not only found that they presented the
material in a manner that was knowledgeable, but
I found they presented the material in a manner that was
enjoyable.
Judge J. Philip McGraw
Jasper Superior Court, Rensselaer, Indiana
You provided me with the best continuing judicial
education courses I have had in my career. The stimulating,
intense instruction was absolutely wonderful.
Judge E. Dwight Fay, Jr.
Twenty-Third Judicial Circuit, Huntsville, Alabama
Educational Programs
All JEP programs meet the highest standards of academic integrity.
JEP programs foster the honest and open discussion of important
legal policy issues and take full advantage of the renowned scholarly
expertise available through AEI and Brookings. The JEP’s goal is to offer
the best economics-based judicial education experience in the country.
subject having set through professional education
programs on everything from tactical nuclear weapons to
appellate opinion writing.
... one of the best judicial education programs I have seen
in nearly 25 years on the bench. ... you have enlightened
and educated many, many judges throughout the nation,
and the law that they pronounce will be more informed as
a result.
During the nineteen years that I have been a judge, I have
attended hundreds of law-related education programs.
Your programs were clearly among the best and offered
a unique educational experience. I have used many of
the important lessons that I learned from your program. ...
Thank you for improving my education. It will not
be forgotten.
Justice David M. Boren
Supreme Court of Connecticut
This was truly an outstanding educational program. It ranks
with the ones that I have completed at the Harvard
Business School; all of the other continuing education
programs and seminars that I have attended during the
forty years since graduation from law school pale by
comparison. And I speak with some authority on the
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Justice David G. Sills
California Court of Appeal
Judge William L. Knopf
Kentucky Court of Appeals
Given this positive reception by the judiciary, it is not surprising that
JEP programs are quickly oversubscribed with judges referred by
prior attendees.
AEI-Brookings Joint Center for Regulatory Studies
The JEP not only aspires to be the best, it also aspires to be the largest
and most influential judicial education program devoted to
improving the judiciary through law and economics education. The
JEP offers an impressive array of programs:
(1) Economics Institutes for Judges;
(2) Judicial Symposia; and
(3) Advanced Law & Economics Institutes.
A description for each program follows. Agenda for the programs
are located in the Appendices II to VII.
1. The Economics Institutes for Judges
The JEP’s flagship program is the Economics Institutes for Judges, a
two-week residential program created to provide judges with a basic
understanding of the economic concepts that often are at the heart
of legal disputes. The Institutes are designed to fill a major void
in traditional legal education by giving judges the economic skills
essential to their jobs.
The specific goals of the Economics Institutes for Judges
program are to:
1. provide judges with a basic understanding of the economic
concepts that often are at the heart of legal disputes, and
2. prepare judges to better understand economic
arguments and to distinguish between valid and invalid
economic positions.
A by-product of the Institutes is the fostering of a greater
appreciation of entrepreneurship, free markets, private property
rights, and the rule of law.
The Economics Institutes for Judges program focuses on the areas of
economics that deal with a) the operation and characteristics of
markets, b) the formation and economic role of prices, c) the
importance of the individual as the primary unit of analysis, d)
subjective value, freedom of contract, and the rule of law, e) cost,
competition, and monopoly, f) theory of the firm, f) risk, injury, liability,
and risk assessment, h) scientific methodology, and i) the nature and
role of private property and contracts. Judges are immersed in a solid
background of economics, finance, statistics, accounting, and scientific
methodology. This training arms judges with the tools to analyze and
understand the economic consequences of their decisions. The
Economics Institutes emphasizes the following concepts:
1. Competitive markets, private ownership of property,
and freedom of contract promote the efficient use
of resources and provide a continual stimulus for
innovation;
2. Profits direct business toward socially beneficial activities
that increase wealth. The “Invisible Hand” Principle—
market prices bring personal self interest and the
general welfare into harmony;
3. Government regulation of economic activity, when
deemed necessary to correct market failures, can be
subjected to rational, rigorous cost-benefit analysis
(see the Joint Center website, www.aei-brookings.org, for
the state of the art in cost-benefit analysis of regulations);
4. “The art of economics consists in looking not merely at
the immediate but also at the longer effects of any act
or policy; it consists in tracing the consequences of that
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policy not merely for one group but for all groups.”
Henry Hazlitt, Economics in One Lesson (1947)
5. Risk is a fact of life and, as such, after-the-fact efforts by
judges to act as though life is risk-free are ill-advised;
6. Sound scientific methodology can establish that some
propositions are wrong and some are correct.
Knowledge is created through empirical testing of
logically developed hypotheses; and
7. Beware of the Law of Unintended Consequences!
It should be stressed that a great deal of fundamental skill building
takes place during the Institutes. For example, there are sessions that
deal with basic statistics and probability theory in a way that assists
the judges in making better decisions when dealing with the actual
risk of low probability events that occur in our daily lives. In addition,
the judges’ recollection of fundamental accounting concepts, such as
the difference in types of financial statements or methods of
valuation, usually needs to be refreshed. All businesses and litigants
certainly have an interest in making sure that judges understand
these tools. Nonetheless, the Institutes are not designed to teach
judges how to do accounting or financial analysis. Rather, they are
designed to ensure that judges understand the basic concepts of
microeconomics and some of the unique language of the business
world. Numerous cases are used to illustrate the application of
the concepts.
The program content of the Economics Institute for Judges
was exceptional—substantive, meaningful and educational.
I felt that the materials and instructors were superior and
recommended the course to a number of my colleagues ... .
Economics was never of interest to me until this course—
I now read financial and business news with a different eye,
hopefully a better educated eye. You have made a major
contribution to the judges and the future.
Chancellor Carol L. McCoy
Tennessee Chancery Court
The JEP offers five to six weeks of the Economics Institutes every year.
Offered in separate weekly blocks, the Economics Institutes are held
at The Brookings Institution in Washington, DC. Over 25 hours of
instruction are spread over five days during the first week of the
program. The following fundamental economics topics are covered:
• Scarcity, Opportunity Costs, and Choices
• Supply, Demand, and the Role of Market Prices
• The Self Interest Assumption and Adam Smith’s
“Invisible Hand”
• Mutually Beneficial Exchange
• Comparative Advantage
• Marginal Analysis
• Economic Incentives and Contracting
• Price Controls
• Competition, Monopoly, and Rent-Seeking
• Present Value, Risk and Return, Portfolio Theory,
and Business Valuation
• Financial and Economic Critique of Accounting Practices
• Corporate Governance
• Public Policy Analysis: Market Failures and
Government Regulation
• Public Choice Economics
The relevance of these fundamental economic concepts is
demonstrated through discussion of cases and current public policy
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issues. See Appendix II for the agenda for the March 2005 Week One
of the Economics Institutes for Judges.
The following topics are covered in over 25 hours of instruction
during the five days of the second program week of the Economics
Institutes for Judges:
• Property Rights, Transaction Costs, and the Coase Theorem
• Environmental Regulation and Free Market
Environmentalism
• Statistics, Scientific Method, and Scientific Evidence
• Risk, Injury and Liability
• Alternative Liability Rules
• Risk and Compensating Wage Differentials
• Intellectual Property Rights and Innovation
Experts from AEI and Brookings are called upon to discuss current
public policy issues related to the classroom topics. See Appendix III
for the agenda for the May 2005 Week Two of the Economics
Institutes for Judges.
The JEP has attracted an extremely talented group of scholars to
teach in the Economics Institutes for Judges:
• Terry L. Anderson, Ph.D., Senior Fellow, Hoover
Institution, Stanford University, and Executive Director,
Property and Environment Research Center, Bozeman, MT
• David Bernstein, Professor of Law, George Mason University
• Todd Buchholz, Ph.D., Noted Author and Economist
• Henry N. Butler, J.D., Ph.D., James Farley Professor of
Economics, Chapman University, and Director, AEIBrookings Joint Center Judicial Education Program
• Keith Chauvin, Ph.D., Professor of Business Economics,
University of Kansas
• Susan M. Collins, Ph.D., Professor of Economics,
Georgetown University, and Senior Fellow, Economic
Studies, Brookings Institution
• Robert Crandall, Ph.D., Senior Fellow, Economic Studies,
Brookings Institution
• Robert Helms, Ph.D, Senior Fellow, AEI
• Philip K. Howard, Partner, Covington and Burling, and
Founder and Chair, Common Good
• Keith N. Hylton, J.D., Ph.D., Professor, School of Law,
Boston University
• Jason Johnston, J.D., Ph.D., Robert G. Fuller, Jr. Professor
of Law and Director, Program on Law and the
Environment, University of Pennsylvania School of Law
• Robert E. Litan, J.D., Ph.D., Senior Fellow, Economic
Studies, Brookings Institution, and Vice President for
Research and Policy, Kauffman Foundation
• Fred S. McChesney, J.D., Ph.D., Class of 1967 / James B.
Haddad Professor, Northwestern University Law School,
and Professor, Department of Management and
Strategy, Kellogg School of Business, Northwestern
University
• Marilyn Moon, Ph.D., Vice President and Program
Director—Health, American Institutes for Research
• Paul R. Portney, Ph.D., Dean, Eller College of
Management, University of Arizona (former President,
Resources for the Future)
• Sally Satel, MD., Senior Fellow, AEI
• James S. Trefil, Ph.D., Robinson Professor of Physics,
George Mason University
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AEI-Brookings Joint Center for Regulatory Studies
• Peter Wallison, LL.B., Resident Fellow and Codirector
of AEI’s Financial Deregulation Project, American
Enterprise Institute
• Clifford Winston, Ph.D., Senior Fellow, Economic Studies,
Brookings Institution
To facilitate a productive learning environment, attendance is limited
to 50 judges during the first week and to 70 judges during the
second week.
I have also been involved in judicial education through the
National Center for the State Courts, the National Judicial
Conference and the Indiana Judicial Center. I have never
participated in any judicial program that used adult
education techniques so successfully.
Judge Gregory J. Donat
Superior Court No. 4 of Tippecanoe County, Indiana
The demand for the Economics Institutes is very strong, and the
primary limitation on the JEP’s ability to educate judges in
fundamental business concepts is limited financial support.
2. Judicial Symposia
These two-day symposia alert the judiciary to emerging challenges in
substantive legal areas. The symposia format ensures a balanced
presentation of issues so that the judges can determine the merits of
competing positions. The target audience for each symposium ranges
from 100 to 200 judges and justices—although the primary limitation
on attendance is the availability of funding. Leading attorneys and
legal scholars provide opposing viewpoints as well as a basic
grounding in fundamentals within which the views can be placed. In
designing the symposia agenda, the JEP always seeks input from a
variety of sources that represent competing views on the issues.
Attorneys and professors reflecting both the plaintiffs’ bar and the
defense bar are juxtaposed in mini-debates on narrow facets of the
issues. The result is fast-paced, balanced and informative programs.
... The panelist were excellent and the topics were
extremely well selected. The speakers who addressed the
issues from an academic perspective were the most
interesting. This included not only the law professors, but
many of the practicing attorneys and others. As judges, we
are bombarded on a daily basis with lawyers arguing fine
points of law, but we rarely have the opportunity to think
about what we do with reference to the big picture. It was
nice to be a student again.
Judge Kevin M. McCarthy
San Francisco Superior Court
Please understand that I am not engaging in hyperbole
when I state that the symposium was among the two or
three most informative such programs I have attended. The
participants were first rate, and the pace and organization
of the agenda added significantly to its value. As an
appellate judge I benefited from virtually every component
of the program although I daresay any trial level judge
could say the same thing. Of particular interest to me were
the segments on insurance coverage and the “cutting edge
issues” panel. Indeed the discussions were germane to
questions being dealt with on a daily basis by trial and
appellate courts.
Justice Costa Pleicones
Supreme Court of South Carolina
AEI-Brookings Joint Center for Regulatory Studies
Topics for the JEP Judicial Symposia are emerging problem areas in
the civil justice system. The JEP offered three Judicial Symposia in
2004-2005:
•
•
Punitive Damages: The Law, The Jury and The Judge,
Georgetown University Law Center, September 22-24, 2004
(attended by 123 judges). The goal of the Punitive
Damages Judicial Symposium was to give judges a
thorough exposure to all aspects of punitive damages—
economic theory, recent empirical research, and the
seminal case of State Farm v. Campbell. Speakers included
Walter Dellinger, O’Melveny & Myers and Duke Law School;
Professor Kip Viscusi, Harvard Law School; Professor
Catherine Sharkey, Columbia Law School; Steven Garber,
RAND Institute for Civil Justice; and Professor Keith Hylton
of Boston University School of Law. Please see Appendix IV
for the Punitive Damages Symposium Agenda.
Critical Issues in Construction Defects Litigation, The
Washington Hilton, January 27-28, 2005 (attended by 118
judges). The Construction Defects Judicial Symposium
addressed the substantive and procedural issues at the
heart of the explosion in construction defects litigation in
Florida, California, Nevada, and Arizona. In addition to a
tutorial on home building, the judges participated in
sessions on insurance coverage, admissibility of expert and
scientific testimony, management of complex and mass
cases, and arbitration clauses. Please see Appendix V for the
Construction Defects Symposium Agenda.
• Critical Issues in Toxic Torts Litigation: Georgetown University
Law Center, April 28-29, 2005 (attended by 149 judges). The
Toxic Torts Symposium addressed the numerous and varied
challenges to our civil justice system that are posed by toxic
torts and mass actions. Themes ranged from scientific
challenges to the traditional requirement of causation to
more recent challenges of unimpaired claimants and
medical monitoring. Speakers included Professor George
Priest of Yale Law School; Richard F. Scruggs, The Scruggs
Law Firm, Oxford, Mississippi; Victor E. Schwartz, Shook
Hardy & Bacon, Washington, DC; Frederick M. Baron, Baron
& Budd, Dallas, Texas; and Robert H. Riley, Shiff Hardin LLP,
Chicago, Illinois. Please see Appendix VI for the Toxic Torts
Symposium Agenda.
... In my opinion, the program value was exceptional. The
speakers, obviously, were hand picked due to their
knowledge level. They were engaging and played off each
other very well. I walked away from this symposium with
greater knowledge, but also with the ability to approach
toxic torts from a broader perspective. I give you
extraordinarily high marks in terms of impact and delivery
of what is otherwise a “hard” topic!
Judge Renee Worke
Michigan Court of Appeals
As someone who has attended almost all of the judicial
seminars both at KU and AEI-Brookings, please accept my
congratulations on another outstanding effort. The
symposium on Toxic Torts was the best program of this kind
that I have ever attended. It was well balanced, informative
and well planned. In baseball parlance, it was the
proverbial “home run.” ... Your programs have been
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a model for fairness, balance and uniformly high content.
Justice Thomas E. Hollenhorst
California Court of Appeal
Your symposium was the best I have seen. As usual you
brought in the top performers as faculty. I was particularly
interested in the sessions on class actions in CD litigation.
I returned to Arizona and finalized my case management
approach based upon much of what I had heard while at
your symposium. After consideration of the ideas
suggested, I was able to validate some of my thoughts and
change some I was intending to use in case management.
Judge Kenneth L. Fields
Maricopa County Arizona Superior Court
3. Advanced Law & Economics Institutes
The three-day Advanced Law & Economics Institutes build upon the
knowledge judges acquire during the prerequisite Economics
Institute. These programs are dedicated to the in-depth study of a
specifically identified area of the law and taught in lecture format by
leading scholars in the field. The JEP’s Judicial Advisory Board
provides guidance in selecting topics. The JEP held one Advanced Law
& Economics Institute during 2004-2005.
The Advanced Institute on “Punishing Corporate Misconduct” was
held on December 13-15, 2004, at The Brookings Institution. Sixtyfour judges attended the Advanced Institute. Topics included the
economic theory of punishing corporations or individual
decisionmakers within corporations, the economic theory of
punishment and deterrence, the impact of increased criminalization
of commercial activity, and the erosion of the attorney-client
privilege. Speakers included Professor Jason Johnston of the
University of Pennsylvania Law School; Professor Jennifer Arlen of
New York University Law School; Paul Rosenzweig of The Heritage
Foundation; Robert Levy of the Cato Institute; Robert Peck from
the Center for Constitutional Litigation; Richard Cullen of
McGuireWoods, Richmond, Virginia; Roscoe C. Howard, Sheppard,
Mullin, Richter & Hampton, Washington; Robert A. Lonergan,
General Counsel, Rohm & Hass; and Mary Beth Buchanan, U.S.
Attorney for the Western District of Pennsylvania and Director,
Executive Office for United States Attorneys, Washington. The
Agenda for the Punishing Corporate Misconduct Advanced Institute
may be found in Appendix VII.
A special Advanced Law & Economics Institute is planned for 20052006. In response to suggestions from several judges for advanced
training in business litigation, the JEP has launched a Business Courts
Initiative. Judge Ben Tennille of the North Carolina Business Court,
Judge Steven Platt of the Maryland Business and Technology Court,
and Chancellor William Chandler of Delaware are spearheading the
effort to form a new organization of judges—the American College
of Business Court Judges. The purpose of this new association is to
encourage the formation and development of business and
commercial courts through an annual meeting that will provide
mentoring and educational opportunities for judges from states that
have not developed courts with a substantive specialization in
business or commercial cases. The association’s first meeting will be
held at The Brookings Institution in Washington, DC on Sunday,
October 30 to Tuesday, November 1, 2005. The JEP is providing advice
about the agenda and speakers, meeting planning services, as well as
financial support for this meeting.
5
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
List of Participants By State and Court
2004-2005 Academic Year
457 Judges Attended at least one JEP Course
Supreme Court of Alabama
Harold F. See, Jr., Montgomery
Alabama Court of Civil Appeals
John B. Crawley, Montgomery
Alabama Circuit Courts
Tim Jolley, Albertville
James H. Reid, Bay Minette
Robert S. Vance, Jr., Birmingham
Tennant M. Smallwood Jr., Birmingham
Sibley Reynolds, Clanton
David Evans, Guntersville
Bobby R. Aderholt, Haleyville
Eddie Hardaway, Jr., Livingston
John R. Lockett, Mobile
Samuel H. Welch, Jr., Monroeville
Charles Price, Montgomery
Robert E. Austin, Oneonta
Albert L. Johnson, Phenix City
Ben Andrew Fuller, Prattville
Arkansas Circuit Court
James R. Marschewski, Fort Smith
Ellen B. Brantley, Little Rock
Collins Kilgore, Little Rock
Arkansas Court of Appeals
Olly Neal, Little Rock
Arizona Court of Appeals
Lawrence F. Winthrop, Phoenix
Arizona Superior Court
Fred Newton, Flagstaff
Danna Dee Hendrix, Flagstaff
Silvia R. Arellano, Mesa
Mark Aceto, Mesa
John M. Gaylord, Mesa
Janet E. Barton, Phoenix
Colin F. Campbell, Phoenix
John R. Ditsworth, Phoenix
Margaret H. Downie, Phoenix
Kenneth L. Fields, Phoenix
Pendleton Gaines, Phoenix
Bethany G. Hicks, Phoenix
Paul A. Katz, Phoenix
Douglas Rayes, Phoenix
Peter C. Reinstein, Phoenix
Barry C. Schneider, Phoenix
Jonathan H. Schwartz, Phoenix
Roland J. Steinle, III, Phoenix
Michael A. Yarnell, Phoenix
Christopher C. Browning, Tucson
Leslie Miller, Tucson
Arizona Tax Court
Mark W. Armstrong, Phoenix
California Court of Appeal
Barton C. Gaut, Riverside
Thomas E. Hollenhorst, Riverside
Frances Rothschild, Los Angeles
6
James D. Ward, Riverside
Rebecca A. Wiseman, Fresno
David G. Sills, Santa Ana
California Superior Court
Michael J. Farrell, Chatsworth
John P. Farrell, Chatsworth
Kelly MacEachern, Fullerton
Roy L. Paul, Long Beach
Gregory W. Alarcon, Los Angeles
Elihu M. Berle, Los Angeles
Malcolm Mackey, Los Angeles
Gregory C. O’Brien Jr., Los Angeles
Rolf M. Treu, Los Angeles
Mel Red Recana, Los Angeles
Teresa Sanchez-Gordon, Los Angeles
Carl J. West, Los Angeles
Edward Forstenzer, Mammoth Lakes
Roger M. Beauchesne, Modesto
Margaret R. Anderson, Newport Beach
Robert B. Axel, Norwalk
Thomas I. McKnew Jr., Norwalk
Daniel Solis Pratt, Norwalk
John A. Torribio, Norwalk
Jo-Lynne Q. Lee, Oakland
Henry E. Needham, Jr., Oakland
Phillip J. Argento, Pasadena
Jan A. Pluim, Pasadena
C. Edward Simpson, Pasadena
Joseph E. Bergeron, Redwood City
Carl W. Holm, Redwood City
Quentin L. Kopp, Redwood City
John G. Schwartz, Redwood City
Brian R. Van Camp, Sacramento
Patricia Yim Cowett, San Diego
Robert L. Dondero, San Francisco
Tomar Mason, San Francisco
Paul H. Alvarado, San Francisco
Kevin M. McCarthy, San Francisco
Ernest H. Goldsmith, San Francisco
John J. Conway, San Francisco
Leslie C. Nichols, San Jose
Aaron Persky, San Jose
Mary Jo Levinger, San Jose
Catherine Gallagher, San Jose
Roger T. Picquet, San Luis Obispo
Lynn O’Malley Taylor, San Rafael
John S. Adams, Santa Ana
W. Michael Hayes, Santa Ana
William M. Monroe, Santa Ana
Kirk Nakamura, Santa Ana
Geoffrey T. Glass, Santa Ana
David A. Thompson, Santa Ana
Jonathon H. Cannon, Santa Ana
Sheila Fell, Santa Ana
John D. Conley, Santa Ana
James J. DiCesare, Santa Ana
Kim G. Dunning, Santa Ana
Gail Andler, Santa Ana
Andrew P. Banks, Santa Ana
Carter P. Holly, Stockton
Stephen D. Petersen, Van Nuys
Ruth Essegian, Van Nuys
Paul A. Vortmann, Visalia
Colorado Court of Appeals
Dennis A. Graham, Denver
Robert M. Russel, Denver
Marsha Piccone, Denver
Colorado District Court
Roxanne Bailin, Boulder
Morris W. Sandstead, Jr., Boulder
Marilyn Leonard, Centenniel
Rebecca Snyder Bromley, Colorado Springs
Kirk S. Samelson, Colorado Springs
Jane A. Tidball, Golden
Gilbert A. Gutierrez, Greeley
Connecticut Appellate Court
Alexandra D. DiPentima, Hartford
C. Ian McLachlan, Hartford
Joseph P. Flynn, Hartford
Anne C. Dranginis, Hartford
Connecticut Superior Court
Douglas S. Lavine, Hartford
Jonathan E. Silbert, Middletown
A. Susan Peck, New Britain
Delaware Court of Chancery
Donald F. Parsons, Jr., Wilmington
Delaware Superior Court
Susan C. Del Pesco, Wilmington
Florida Court of Appeal
Juan Ramirez, Jr., Miami
James R. Wolf, Tallahassee
William A. Van Nortwick, Jr., Tallahassee
Charles J. Kahn, Jr., Tallahassee
Robert T. Benton, II, Tallahassee
Florida Circuit Court
Crockett Farnell, Clearwater
J. David Walsh, Daytona Beach
Jeffrey E. Streitfeld, Fort Lauderdale
J. Leonard Fleet, Ft. Lauderdale
John T. Luzzo, Ft. Lauderdale
George W. Maxwell, III, Melbourne
Gill S. Freeman, Miami
Victoria Platzer, Miami
Fredricka G. Smith, Miami
Linda Dakis, Miami
Shelley J. Kravitz, Miami
Gisela Cardonne Ely, Miami
Maxine Cohen Lando, Miami
Robert N. Scola, Jr., Miami
A. Thomas Mihok, Orlando
Lawrence R. Kirkwood, Orlando
William Clayton Johnson, Palmetto
Walter Fullerton, St. Petersburg
Herbert J. Baumann, Jr., Tampa
Manuel Menendez, Jr., Tampa
William P. Levens, Tampa
James M. Barton, II, Tampa
Gregory P. Holder, Tampa
Warren Burk, Viera
Edward A. Garrison, West Palm Beach
Judicial Education Program
Georgia Court of Appeals
Edward H. Johnson, Atlanta
J.D. Smith, Atlanta
M. Yvette Miller, Atlanta
John H. Ruffin, Jr., Atlanta
Anne Elizabeth Barnes, Atlanta
Georgia Superior Court
Michael C. Clark, Lawrenceville
Pamela D. South, Lawrenceville
Illinois Circuit Courts
James E. Souk, Bloomington
Charles G. Reynard, Bloomington
Clifford I. Meacham, Chicago
Robert J. Quinn, Chicago
Peter Flynn, Chicago
Daniel J. Kelley, Chicago
Maureen Durkin Roy, Chicago
David R. Donnersberger, Chicago
Lawrence O’Gara, Chicago
Alexander P. White, Des Plaines
David T. Fritts, Dixon
Anthony A. Iosco, Elk Grove Village
F. Keith Brown, Geneva
Herman S. Haase, Joliet
Luciano Panici, Markham
Thomas J. Condon, Markham
Frank Castiglione, Markham
Illinois Appellate Courts
James A. Knecht, Bloomington
John T. McCullough, Lincoln
Kent Slater, Macomb
Indiana Superior and Circuit Court
Michael J. Kramer, Albion
E. Michael Hoff, Bloomington
Lorenzo Arredondo, Crown Point
Jeffrey J. Dywan, Crown Point
Jeffrey V. Boles, Danville
L. Benjamin Pfaff, Elkhart
Thomas J. Felts, Fort Wayne
Olga H. Stickel, Goshen
Theodore M. Sosin, Indianapolis
Thomas J. Carroll, Indianapolis
Scherry “SK” Reid, Indianapolis
David Shaheed, Indianapolis
Daniel F. Donahue, Jeffersonville
Kenneth Abbott, Jeffersonville
Steven M. Fleece, Jeffersonville
Lynn Murray, Kokomo
Gregory J. Donat, Lafayette
Matthew C. Kincaid, Lebanon
James R. Williams, Liberty
Robert B. Mrzlack, Monticello
Richard A. Dailey, Muncie
Douglas B. Morton, Rochester
Michael Anthony Shurn, Wnamac
Indiana Court of Appeals
James S. Kirsch, Indianapolis
L. Mark Bailey, Indianapolis
Iowa Court of Appeals
Robert E. Mahan, Des Moines
Rosemary Shaw Sackett, Des Moines
Terry L. Huitink, Des Moines
Iowa District Court
Mary Ann Brown, Burlington
James E. Kelley, Davenport
Stephen P. Carroll, Hampton
AEI-Brookings Joint Center for Regulatory Studies
James D. Scott, Orange City
John D. Ackerman, Sioux City
Kansas District Court
Charles M. Hart, El Dorado
Larry Bengtson, Junction City
Daniel A. Duncan, Kansas City
Matthew J. Dowd, Topeka
Kentucky Supreme Court
J. William Graves, Paducah
Kentucky Court of Appeals
Joseph R. Huddleston, Bowling Green
Kentucky Circuit Court
Jerry D. Winchester, Corbin
Eddy Coleman, Pikeville
Louisiana Supreme Court
Bernette Johnson, New Orleans
Lousiana Court of Appeal
Roland L. Belsome, New Orleans
Edwin A. Lombard, New Orleans
Louisiana District Court
Donald M. Fendlason, Covington
Peter J. Garcia, Covington
Larry J. Green, Covington
Raymond S. Childress, Franklinton
Nadine Michele Ramsey, New Orleans
Ethel Simms Julien, New Orleans
Massachusetts Appeals Court
Janis M. Berry, Boston
Cynthia J. Cohen, Boston
Massachusetts District Courts
Edward J. Reynolds, Leominster
Timothy H. Gailey, Chelsea
Barbara Savitt Pearson, Lowell
James M. Geary, Jr., Lowell
Milton L. Wright, Roxbury
Bertha D. Josephson, Springfield
Paul S. Waickowski, Westborough
Maryland Court of Appeals
Glenn T. Harrell, Jr., Upper Marlboro
Maryland Circuit Court
Joseph H. H. Kaplan, Baltimore
John Carroll Byrnes, Baltimore
Dennis M. Sweeney, Ellicott City
Ronald D. Schiff, Upper Marlboro
Steven I. Platt, Upper Marlboro
William B. Spellbring, Jr., Upper Marlboro
Michael Patrick Whalen, Upper Marlboro
Jean Szekeres Baron, Upper Marlboro
Michigan Court of Appeals
Hilda R. Gage, Troy
Henry William Saad, Troy
Michigan Circuit Court
M. Richard Knoblock, Bad Axe
William J. Caprathe, Bay City
Kenneth W. Schmidt, Bay City
Patrick R. Joslyn, Caro
Gershwin Drain, Detroit
Dennis B. Leiber, Grand Rapids
George S. Buth, Grand Rapids
William E. Collette, Mason
Minnesota Court of Appeals
Renee L. Worke, St. Paul
Minnesota District Courts
Deborah Hedlund, Minneapolis
Elizabeth A. Hayden, St. Cloud
Paul Widick, St. Cloud
Missouri Court of Appeals
Nancy Steffen Rahmeyer, Springfield
Jeffrey W. Bates, Springfield
Lawrence G. Crahan, St. Louis
Missouri Circuit Courts
Peggy D. Richardson, California
Stephan P. Carlton, Carthage
M. Edward Williams, Hillsboro
Ralph Jaynes, Huntsville
Thomas L. Sodergren, Jefferson City
John Moon, Kahoka
Karl A.W. DeMarce, Memphis
Robert H. Dierker, St. Louis
Mississippi Supreme Court
James E. Graves, Jackson
Mississippi Court of Appeals
David Chandler, Jackson
Mississippi Circuit Court
Albert B. Smith, III, Cleveland
Larry Buffington, Collins
Ashley Hines, Greenville
Betty W. Sanders, Greenwood
Denise Owens, Jackson
Jannie M. Lewis, Lexington
Janace Harvey-Goree, Lexington
Forrest Al Johnson, Natchez
Lillie Blackmon Sanders, Natchez
Robert G. Evans, Raleigh
Thomas J. Gardner, III, Tupelo
Frank G. Vollor, Vicksburg
Montana Supreme Court
Brian Morris, Helena
Maine Supreme Judicial Court
Paul L. Rudman, Bangor
Nebraska District Court
John P. Icenogle, Kearney
Maine Superior Court
Ellen A. Gorman, Auburn
Jeffrey L. Hjelm, Bangor
Carl O. Bradford, Portland
Robert E. Crowley, Portland
Nevada District Court
Michael A. Cherry, Las Vegas
Kathy A. Hardcastle, Las Vegas
Nancy M. Saitta, Las Vegas
Kenneth C. Cory, Las Vegas
Steven Elliott, Reno
Robert E. Estes, Yerington
Michigan Supreme Court
Robert P. Young, Jr., Detroit
Clifford W. Taylor, Lansing
New Mexico Court of Appeals
A. Joseph Alarid, Albuquerque
7
AEI-Brookings Joint Center for Regulatory Studies
New York State Court of Appeals
George Bundy Smith, New York
New York State Supreme Court
Bert A. Bunyan, Brooklyn
Gloria M. Dabiri, Brooklyn
Yvonne Lewis, Brooklyn
Norman E. Joslin, Buffalo
Rose H. Sconiers, Buffalo
Joseph G. Makowski, Buffalo
Phyllis Orlikoff Flug, Jamaica
Sheri S. Roman, Kew Gardens
Edward W. McCarty III, Mineola
Stephen A. Bucaria, Mineola
F. Dana Winslow, Mineola
Edward H. Lehner, New York
Richard T. Andrias, New York
William P. McCooe, New York
Eugene L. Nardelli, New York
Helen E. Freedman, New York
Louis B. York, New York
Joseph J. Maltese, Staten Island
John T. Buckley, New York
North Carolina Business Court
Ben F. Tennille, Greensboro
North Carolina Superior Court
James U. Downs, Franklin
Paul L. Jones, Kinston
C. Preston Cornelius, Mooresville
Forrest D. Bridges, Shelby
North Dakota District Courts
Debbie Kleven, Grand Forks
Donald L. Jorgensen, Mandan
Ohio Court of Common Pleas
L. Alan Goldsberry, Athens
Michael Ward, Athens
Forrest W. Burt, Chardon
Cheryl D. Grant, Cincinnati
Timothy J. McGinty, Cleveland
Ronald Suster, Cleveland
John P. Bessey, Columbus
Barbara Pugliese Gorman, Dayton
Patricia S. Oney, Hamilton
Charles L. Pater, Hamilton
Matthew J. Crehan, Hamilton
Alfred Mackey, Jefferson
Thomas H. Gerken, Logan
Richard E. Parrott, Marysville
Linton D. Lewis, Jr., New Lexington
Thomas M. Marcelain, Newmark
Paul C. Moon, Port Clinton
Mark K. Wiest, Wooster
Oklahoma District Court
Ronald L. Shaffer, Tulsa
P. Thomas Thornbrugh, Tulsa
Oregon Supreme Court
George A. Van Hoomissen, Portland
R. William Riggs, Salem
Oregon Circuit Court
Paula M. Bechtold, North Bend
Clifford L. Freeman, Portland
Henry Kantor, Portland
Jerome E. LaBarre, Portland
Dennis J. Graves, Salem
8
Judicial Education Program
Pennsylvania Court of Common Pleas
Edward D. Reibman, Allentown
Thomas King Kistler, Bellefonte
Stephen G. Baratta, Easton
Francis J. Fornelli, Mercer
Joseph A. Smyth, Norristown
Mark T. Bernstein, Philadelphia
Joseph A. Dych, Philadelphia
Gene D. Cohen, Philadelphia
William J. Manfredi, Philadelphia
John W. Herron, Philadelphia
James Murray Lynn, Philadelphia
Mary Jane Bowes, Pittsburgh
Judith A. Friedman, Pittsburgh
Michael J. Barrasse, Scranton
Carmen D. Minora, Scranton
Puerto Rico Court of Appeals
Roberto L. Cordova, San Juan
Supreme Court of South Carolina
Costa M. Pleicones, Columbia
South Carolina Court of Appeals
Donald W. Beatty, Spartanburg
Circuit Court of South Carolina
G. Thomas Cooper, Jr., Camden
J. Ernest Kinard, Jr., Camden
D. Garrison Hill, Greenville
Clifton Newman, Kingstree
Paul M. Burch, Pageland
Tennessee Circuit and Chancery Courts
W. Frank Brown, III, Chattanooga
Ross H. Hicks, Clarksville
Frank V. Williams III, Kingston
Robert E. Corlew, Murfreesboro
John P. Brown, Nashville
George Robert Ellis, Trenton
Supreme Court of Texas
Scott A. Brister, Austin
Harriet O’Neill, Austin
Texas Court of Appeals
Carolyn Wright, Dallas
Clifton H. (Terry) McCall, Eastland
W.G. Arnot, III, Eastland
George C. Hanks, Jr., Houston
Texas District Court
Patrick Sebesta, Angleton
Menton Murray, Jr., Brownsville
Robert Garza, Brownsville
Leonel Alejandro, Brownsville
Frederick E. Edwards, Conroe
Sandra L. Watts, Corpus Christi
Lee Gabriel, Denton
Margaret E. Barnes, Denton
Aida Salinas Flores, Edinburg
Angie Juarez Barill, El Paso
Gonzalo Garcia, El Paso
Linda Yee Chew, El Paso
Carlos Villa, El Paso
Bonnie Sudderth, Ft. Worth
David L. Evans, Ft. Worth
Martha Hill Jamison, Houston
Levi J. Benton, Houston
Kent C. Sullivan, Houston
Mark Davidson, Houston
Graham Quisenberry, Weatherford
Utah Court of Appeals
Judith Billings, Park City
James Z. Davis, Salt Lake City
Utah Supreme Court
Ronald Nehring, Salt Lake City
Michael J. Wilkins, Salt Lake City
Utah District Court
Royal I. Hansen, Sandy
Terry L. Christiansen, West Valley CIty
Stephen L. Roth, West Valley City
Virginia Court of Appeals
Rosemarie Annunziata, Fairfax
Virginia Circuit Court
Charles J. Strauss, Chatham
Joseph W. Milam, Jr., Danville
Norman A. Thomas, Norfolk
Lydia Calvert Taylor, Norfolk
James A. Cales, Jr., Portsmouth
Mark S. Davis, Portsmouth
Johnny E. Morrison, Portsmouth
Dean W. Sword, Jr., Portsmouth
Theodore J. Markow, Richmond
William N. Alexander, II, Rocky Mount
Rodham T. Delk, Jr., Suffolk
Vermont District Court
Edward J. Cashman, Burlington
Amy M. Davenport, Montpelier
Karen R. Carroll, Newfane
Alan W. Cook, Northfield
Washington Court of Appeals
Frank L. Kurtz, Spokane
Washington Superior Court
Richard D. Eadie, Seattle
Richard A. Jones, Seattle
Wisconsin Court of Appeals
Ted E. Wedemeyer, Jr., Milwaukee
Wisconsin Circuit Courts
Paul J. Lenz, Eau Clare
Harold V. Froehlich, Appleton
William J. Haese, Fox Point
Peter J. Naze, Green Bay
Bruce E. Schroeder, Kenosha
Raymond S. Huber, Waupaca
West Virginia Supreme Court of Appeals
Larry V. Starcher, Charleston
Circuit Court of West Virginia
Phil Jordan, Keyser
James J. Rowe, Lewisburg
Roger L. Perry, Logan
Arthur M. Recht, Moundsville
O. C. Spaulding, Winfield
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
AEI-Brookings Judicial Education Program
Program Dates Academic Year 2004—2005
September 22-September 24, 2004
Judicial Symposium
Punitive Damages: The Law, The Jury and The Judge (123 judges attended)
October 4-October 8, 2004
Week One, Economics Institute for Judges (32 judges attended)
December 13-December 15, 2004
Advanced Law and Economics Institute:
Punishing Corporate Misconduct (64 judges attended)
January 27-January 28, 2005
Judicial Symposium
Critical Issues in Construction Defect Litigation (118 judges attended)
March 7-March 11, 2005
Week One, Economics Institute for Judges (54 judges attended)
April 28-April 29, 2005
Judicial Symposium
Critical Issues in Toxic Torts Litigation (149 judges attended)
May 16-May 20, 2005
Week Two, Economics Institute for Judges (67 judges attended)
AEI-Brookings Judicial Education Program
Program Dates Academic Year 2005-2006
September 26-30, 2005
Week One, Economics Institute for Judges (50 judges expected)
October 31-November 1, 2005
Advanced Law & Economics Institute (60 judges expected)
American College of Business Court Judges
November 3-4, 2005
Judicial Symposium
The Law and Economics of Punishing Corporate Misconduct (140 judges expected)
December 12-16, 2005
Week Two, Economics Institute for Judges (70 judges expected)
January 23-27, 2006
Week One, Economics Institute for Judges (50 judges expected)
March 20-24,2006
Week One, Economics Institute for Judges (50 judges expected)
March 30-31, 2006
Judicial Symposium
Critical Issues in Construction Defects Litigation (200 judges expected)
April 24-28, 2006
Week One, Economics Institute for Judges (50 judges expected)
May 15-19, 2006
Week Two, Economics Institute for Judges (50 judges expected)
9
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
Governance and Management of
the AEI-Brookings Joint Center JEP
The Judicial Education Program operates under the auspices of the
highly respected AEI-Brookings Joint Center for Regulatory Studies.
See Appendix I and www.aei-brookings.org. Henry N. Butler, the
founder of the University of Kansas LOEC and former Director of the
George Mason University Law & Economics Center, is Director of the
JEP. Paige V. Butler, the former Associate Director of the University of
Kansas LOEC and former Director of the Chapman University LOEC, is
Associate Director.
The JEP is governed by a Steering Committee comprised of Robert W.
Hahn, Executive Director of the Joint Center; Robert E. Litan, Senior
Fellow, Economic Studies, Brookings Institution, and Co-Director of
the Joint Center; Henry N. Butler, Director, JEP; Paige V. Butler,
Associate Director, JEP; and William Goodwin, Senior Director,
Brookings Institution Center for Public Policy Education. This steering
committee seeks input from leading judges and justices through the
Judicial Education Program’s Judicial Advisory Board.
Most administrative and meeting planning support is provided by the
Brookings Center for Executive Education, a globally recognized
superior teaching establishment that offers courses for government,
corporate, and non-profit leaders. The Joint Center provides additional
support services as needed.
Henry N. Butler, J.D., Ph.D.
Director, Judicial Education Program
AEI-Brookings Joint Center
Henry N. Butler is the James Farley Professor of Economics in the
George L. Argyros School of Business and Economics at Chapman
University in Orange, California. He briefly served as Dean of the
Argyros School of Business and Chairman of the Chapman University
Law and Organizational Economics Center.
Dr. Butler has been active in the development of Law & Economics as
an academic discipline throughout his professional career. He has a
Ph.D. in Economics from Virginia Tech (M.A., 1979; Ph.D. 1982), where
he was a student of Nobel Laureate James M. Buchanan, and a law
degree from the University of Miami (J.D., 1982), where he was a
John M. Olin Fellow in Law and Economics.
After three years as an Assistant Professor of Management at Texas
A&M University, Dr. Butler spent the 1985-86 academic year as a John
M. Olin Fellow in Law and Economics at the University of Chicago
Law School. Dr. Butler was a professor at George Mason University
School of Law from 1986 to 1993. Prior to moving to Chapman in
2001, Dr. Butler was the Fred C. and Mary R. Koch Distinguished
Professor of Law and Economics at the University of Kansas Schools
of Law and Business.
In addition to his academic credentials, Dr. Butler has dedicated much
of his career to improving our nation’s civil justice system through
judicial education programs. For three years, Dr. Butler was Director
of George Mason University’s Law & Economics Center, which offers
the Economics Institutes for Federal Judges. In December 1995, Dr.
Butler launched the Economics Institute for State Judges through the
10
Law and Organizational Economics Center at the University of
Kansas. And, in 2003, Dr. Butler helped establish the Judicial
Education Program under the auspices of the AEI-Brookings Joint
Center for Regulatory Studies. Well over 2,000 judges have attended
law and economics programs administered by Dr. Butler.
Dr. Butler is an expert on the economic analysis of law, and he has
published numerous articles and several books on a variety of topics.
His articles have appeared in leading economics journals and law
reviews, including the Journal of Law and Economics, the Journal of
Legal Studies, Journal of Law, Economics, and Organizations, Virginia
Law Review, Cornell Law Review, and the Yale Journal on Regulation.
His casebook, Economic Analysis for Lawyers, is the primary casebook
for the Economics Institute for Judges. Dr. Butler serves on the Legal
Advisory Council of the National Legal Center for the Public Interest
and the Advisory Board of the Atlantic Legal Foundation.
As a litigation support consultant, Dr. Butler has served as an expert
witness and advisor in a variety of cases including antitrust, contract
liability and damages, restrictive covenants, and joint ventures, as
well as in regulatory hearings.
Paige V. Butler, J.D.
Associate Director, Judicial Education Program
AEI-Brookings Joint Center
Paige V. Butler is the former Director of the Chapman University Law
and Organizational Economics Center. Prior to moving to Chapman
University in 2001, she served as the Associate Director of the LOEC at
the University of Kansas where she was responsible for overseeing
the LOEC’s development activities as well as administering the LOEC’s
programs. In 2003, Ms. Butler helped establish the Judicial Education
Program under the auspices of the AEI-Brookings Joint Center for
Regulatory Studies.
Ms. Butler joined the University of Kansas LOEC in 1998 after ten
years as an attorney at the Federal Home Loan Bank of Topeka in
Topeka, Kansas. While at the Federal Home Loan Bank, Ms. Butler
served as Deputy General Counsel and Assistant Vice President,
Business Development. She is a 1985 graduate of The University of
Kansas School of Business in accounting and a 1988 graduate of The
University of Kansas School of Law.
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
Steering Committee
Robert W. Hahn
Executive Director
AEI-Brookings Joint Center
Robert E. Litan
Co-Director
AEI-Brookings Joint Center
Henry N. Butler
Director, JEP
Paige V. Butler
Associate Director, JEP
William M. Goodwin
Senior Director
Brookings Center for
Executive Education
Judicial Advisory Board
The Honorable Anne Elizabeth Barnes
Georgia Court of Appeals
The Honorable James A. Knecht
Illinois Appellate Courts
The Honorable Jonathan H. Cannon
California Superior Court—Orange County
The Honorable Steven I. Platt
Circuit Court for Prince George’s
County, Maryland
The Honorable William B. Chandler
Delaware Court of Chancery
The Honorable R. William Riggs
Supreme Court of Oregon
The Honorable Mark Davidson
Harris County District Court, Texas
The Honorable Lynn O’Malley Taylor
California Superior Court—Marin County
The Honorable David R. Donnersberger
Illinois Circuit Courts—Cook County
The Honorable Gisela Cardonne Ely
Florida Eleventh Circuit Court
The Honorable Ben Tennille
North Carolina Business Court
The Honorable James A. Wynn, Jr.
North Carolina Court of Appeals
The Honorable Hilda R. Gage
Michigan Court of Appeals
The Honorable Robert P. Young, Jr.
Supreme Court of Michigan
The Honorable Thomas E. Hollenhorst
California Court of Appeal
Senior Advisor
Judyth Pendell
Senior Fellow, AEI-Brookings Joint Center
11
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
JEP Budget and Funding Requirements
Few courts provide the financial resources necessary for judges to
attend educational programs of this nature. Therefore, the AEIBrookings JEP must offer its programs at a minimal financial cost to
the judges. There is no tuition, the JEP pays for reading materials and
hotel rooms, and the JEP reimburses judges for a portion of their outof-pocket transportation expenses.
The availability of adequate funding is the overriding limitation on
the JEP’s ability to improve our nation’s civil justice system. The JEP
needs to secure additional funding of $2.0 million in order to offer a
full array of programs in FY 2006 and beyond.
A two-year budget which projects large carry forward balances has
been developed to facilitate planning. The JEP program operates
within stringent fiscal guidelines and program offerings (and the
number of judges admitted) expand only as contributions increase. In
this sense, the Budget reflects the JEP’s aspirations for the coming
years. At the end of each fiscal year the JEP will provide a detailed
program review and financial report to its donors. This will be in
supplement to the annual reports of The Brookings Institution and AEI.
The Brookings Institution, a 501(c) (3) corporation, accepts gifts made
in support of the Judicial Education Program. Checks should be made
out to “The Brookings Institution” with a memo designating the
support for the “Judicial Education Program” and mailed to:
The AEI-Brookings Judicial Education Program secured sufficient
funding to offer six weeks of the Economics Institute for Judges in FY
2006. A similar number of programs is planned for FY2007, and JEP
programs require a long planning horizon to secure hotel and meeting
facilities and to allow judges to arrange their dockets in order to attend.
Contributor Information
Robert E. Litan
AEI-Brookings Joint Center for Regulatory Studies
The Brookings Institution
1775 Massachusetts Ave., N.W.
Washington, D.C. 20036
The Brookings Institution’s federal identification number is 530196577. See Appendix VII for The Brookings Institution’s tax
determination letter.
AEI-Brookings Joint Center Judicial Education Program Budget
FY 2004 to FY 2006 (July 1 to June 30)
June 30, 2005
FY 2004
Budget
CONTRIBUTIONS
Total Contributions
EXPENSES
Direct Expenses: Core Programs*
Economics Institutes for Judges
First Weeks (Number of Weeks)
Second Week (Number of Weeks)
Symposia (Number of Symposia)
Advanced Institutes (Number of AI)
Total Direct Expenses
Overhead Expenses
JEP Staff
Brookings Support Staff
Office Expenses (Equip, Telecom,
Postage & Supp.)
Development Travel
Brochures, Newsletters & Website
Judicial Advisory Board Meetings
Total Overhead
Total Expenses
Brookings Management Fee
(18% of Tot. Exp.)
Total All Costs
Net Cash Flow
Balance Forward (from previous year)
Cash-on-Hand at end of year
FY 2005
Actual
Budget
Actual
Budget
$1,610,000
$1,590,375
$1,800,000
$1,288,047
$2,000,000
$536,000 (4)
414,000 (2)
$ 441,377 (4)
214,753 (2)
$950,000
$656,130
$268,000 (2)
186,500 (1)
688,000 (3)
140,000 (1)
$1,272,500
$180,664 (2)
92,120 (1)
509,776 (3)
92,338 (1)
$874,898
$460,000 (4)
310,000 (2)
462,000 (2)
106,000 (1)
$1,338,000
$160,000
24,000
$160,000
21,111
$82,000
24,000
$82,000
10,849
$110,000
24,000
20,000
32,000
25,000
21,000
$282,000
$1,232,000
24,003
18,010
3,822
0
$226,946
$883,076
30,000
12,000
26,000
10,000
$184,000
$1,456,500
28,663
12,000
14,294
0
$147,806
$1,022,704
30,000
12,000
26,000
10,000
$212,000
$1,550,000
221,760
$1,453,760
$156,240
$513,187
$669,427
158,954
$1,042,030
$548,345
$513,187
$1,061,532
262,170
$1,718,670
$81,330
$1,061,532
$1,142,862
184,087
$1,206,791
$81,256
$1,061,532
$1,142,788
279,000
$1,829,000
$171,000
$1,142,788
$1,313,788
* Unaudited. Based on best available information at time of publication.
12
FY 2006
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
AEI-Brookings Judicial Education Program
Contributors
Corporations and Foundations
3M
Allstate
American Petroleum Institute
The Armstrong Foundation
Aventis
BP America
John and Donnie Brock Foundation
Caterpillar Foundation, Inc.
CIGNA
Civil Justice Reform Group
Coalition for Litigation Justice
DaimlerChrysler
The Doctors Company
The Dow Chemical Company
Dunn's Foundation
Eli Lilly & Company
ExxonMobil
Ford Motor Company Fund
General Motors
The Rollin M. Gerstaker Foundation
Pierre F. and Enid Goodrich Foundation
The Claude Lambe Charitable Foundation
Massachusetts Mutual
The Modzelewski Charitable Trust
National Association of Home Builders
Novartis
John M. Olin Foundation
Owens-Illinois, Inc.
Pfizer, Inc.
Procter & Gamble
Property and Casualty CEO Roundtable
Shell
Southwest Airlines Company
State Farm
Union Pacific Railroad
U.S. Chamber Institute for Legal Reform
USAA Foundation
Wyeth
Zachry Construction Company
Individuals
Frederick M. Baron, Esq.,. Dallas
Judyth Pendell, Stowe, Vermont
Robert Weekley, Santa Monica, California
Justices and Judges
John S. Adams
Scott S. Anders
Margaret R. Anderson
John P. Bessey
John W. Booth
Edwin B. Browning, Jr.
Bert A. Bunyan
Forrest W. Burt
William B. Chandler III
John D. Conley
Richard A. Dailey
Rodham T. Delk
Alexandra D. DiPentima
Daniel F. Donahue
David R. Donnersberger
Crockett Farnell
Donald M. Fendlason
Kenneth L. Fields
Thomas G. Fisher
Steven M. Fleece
Joseph P. Flynn
Peter Flynn
Clifford L. Freeman
Ezra H. Friedlander
John M. Gaylord
F. Lynn Gerald, Jr.
Barbara Pugliese Gorman
Robert M. Heller
Ross H. Hicks
E. Michael Hoff
William Clayton Johnson
Bertha D. Josephson
Norman E. Joslin
J. Ernest Kinard, Jr.
Lawrence R. Kirkwood
James E. Kuhn
William P. Levens
Edwin A. Lombard
James Murray Lynn
William J. Manfredi
William P. McCooe
James F. McHugh
Manuel Menendez, Jr.
A. Thomas Mihok
Carmen D. Minora
Douglas B. Morton
Celeste H. Muir
Leslie C. Nichols
George A. Pagano
Steven I. Platt
William Ray Price, Jr.
Edward D. Reibman
James J. Rowe
Maureen Durkin Roy
Paul L. Rudman
John H. Ruffin, Jr.
Barry C. Schneider
Tennant M. Smallwood Jr.
William K. Swann, III
Dennis M. Sweeney
Lynn O'Malley Taylor
Lydia Calvert Taylor
Thomas M.Tuggle
Brian R. Van Camp
Ted E. Wedemeyer, Jr.
Gary Wenell
Michael Patrick Whalen
Frank V. Williams III
James R. Wolf
James T. Worthen
13
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
In-Kind Contributions by Lawyers and Law Firms
(pro bono participation in JEP Programs)
Richard J. Hajjar, Esq.
Bank of America, Rockville, Maryland
John Beisner, Esq.
O'Melveny & Myers LLP, Washington
Gregory A. Harwell, Esq.
Gardere, Dallas
Alan R. Brayton, Esq.,
Brayton Purcell, Novato, California
Kenneth R. Heineman, Esq.
Husch & Eppenberger, LLC, St. Louis
Elizabeth J. Cabraser, Esq.
Lieff, Cabraser, Heimann & Bernstein LLP,
San Francisco
Stephen J. Henning, Esq.
Wood Smith Henning & Berman LLP,
Los Angeles
Robert P. Charrow, Esq.
Greenberg Traurig, LLP, Washington
D. Steven Henry, Esq.
Gardere, Dallas
W. Andrew Copenhaver, Esq.
Womble Carlyle, Winston-Salem
Philip K. Howard, Esq.
Common Good, New York
C. Neal Pope, Esq.
Pope, McGlamry, Kilpatrick, Morrison &
Norwood, Atlanta
Richard Cullen, Esq.
McGuireWoods, Richmond
Roscoe C. Howard, Jr., Esq.
Sheppard Mullin Richter & Hampton, LLP,
Washington
Paul D. Rheingold, Esq.
Rheingold, Valet, Rheingold, Shkolnik &
McCartney, New York
Peter Kelso, Esq.,
Mealey Publications, Division of LexisNexis
King of Prussia, Pennsylvania
Joel R. Rhine, Esq.
Lea, Rhine & Rosbrugh, PLLC, Wilmington,
North Carolina
David S. Kris, Esq.
Time Warner Inc., New York
Joseph F. Rice, Esq.
Motley Rice LLC, Mount Pleasant
Fred Krutz, Esq
Forman Perry Watkins Krutz & Tardy, LLP,
Jackson, Mississippi
Robert H. Riley, Esq.
Shiff Hardin LLP, Chicago
John J. Delaney, Esq.
Linowes and Blocker LLP, Bethesda
Walter E. Dellinger, Esq.
O'Melveny & Myers LLP, Washington
Everette L. Doffermyre, Esq.
Doffermyre Shields Canfield Knowles &
Devine LLC, Atlanta
Frederick R. Dudley, Esq.
Akerman Senterfitt, Tallahassee
Douglas W. Dunham, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP,
New York
Stephen E. Embry, Esq.
Frost Brown Todd LLC, Louisville
Ross W. Feinberg, Esq.
Feinberg Grant Mayfield Kaneda & Litt, LLP,
Newport Beach
Robert J. Gordon, Esq.
Weitz & Luxenberg, New York
Peter T. Grossi, Jr., Esq.
Arnold & Porter LLP, Washington
Richard M. Guerard, Esq.
Wyndam Deerpoint Homes, North Aurora,
Illinois
14
Robert S. Peck, Esq.
Center for Constitutional Litigation,
Washington
Frederick M. Baron, Esq.
Baron & Budd, P.C., Dallas
David C. Landin, Esq
Hunton & Williams LLP, Richmond
Robert A. Lonergan, Esq.
Rohm and Haas Company, Philadelphia
Patrick J. Perrone, Esq.
McCarter & English, LLP, Newark, New Jersey
F. Peter Phillips, Esq.
The CPR Institute for Dispute Resolution
New York
The Honorable Sam C. Pointer, Jr., Esq.
Lightfoot Franklin & White LLC,
Brimingham, Alabama
Victor E. Schwartz, Esq.
Shook, Hardy & Bacon LLP, Washington
Richard F. Scruggs, Esq
The Scruggs Law Firm, Oxford, Mississippi
Mark H. Lynch, Esq.
Covington & Burling, Washington
Robert E. Shields, Esq.
Doffermyre, Shields, Canfield, Knowles &
Devine, Atlanta
John J. Lyons, Esq.
Latham & Watkins LLP, Los Angeles
Samuel A. Thumma,
Perkins Coie Brown & Bain P.A., Phoenix
Ned Miltenberg. Esq.,
Center for Constitutional Litigation,
Washington
Edward W. Warren, Esq.
Kirkland & Ellis LLP, Washington
Lee H. Ogburn, Esq.
Kramon & Graham, P.A., Baltimore
Malcolm E. Wheeler, Esq.
Wheeler Trigg Kennedy LLP, Denver
David Hilton Wise, Esq.
Lewis & Roberts, P.L.L.C., Fairfax, Virginia
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Appendix I
J O I N T
C E N T E R
AEI-BROOKINGS JOINT CENTER FOR REGULATORY STUDIES
JUDICIAL EDUCATION PROGRAM
WASHINGTON, DC
M I S S I O N S TAT E M E N T
Introduction
In response to increased concern about the impact of regulation on
the economy, the American Enterprise Institute and the Brookings
Institution established the AEI-Brookings Joint Center for Regulatory
Studies in 1998. The Joint Center builds on AEI’s and Brookings’s
impressive body of work over the past three decades that evaluated
the economic effect of regulation and suggested reforms to enhance
productivity and consumer welfare. The Joint Center combines AEI’s
and Brookings’s unique abilities to bridge the gap between rigorous
analysis and the development of useful policy insights.
AEI and Brookings are ideally situated to focus the best minds on the
regulatory reform debate and to highlight their findings for the
policy community. The Joint Center helps fund the research of new
and established regulatory scholars, thus stimulating further
scholarship in this important area of public policy.
than all federal domestic discretionary spending.
During the next decade, experts project regulatory expenditures will
increase at a rate substantially exceeding that of federal spending. As
regulatory activities grow, so does the need to consider their
implications more carefully. Yet, the economic impacts of regulation
receive much less scrutiny than direct, budgeted government spending.
Throughout the recent period of continuing regulatory change, the
debates over regulatory policy have often been highly partisan and
ill-informed. One reason is that the private sector has no wellrespected, independent organization that consistently monitors and
evaluates ongoing regulatory activity. To be sure, each of the major
research organizations has published studies on various regulatory
issues, but those have been done on an episodic basis. No
organization—including the sponsors of this Joint Center—has thus
far had the resources to establish an up-to-date and continuous
analytical capability to monitor the regulatory activities of the
government.
The Joint Center has three primary missions:
(1) to publish timely, objective analyses of a selected
number of important regulatory proposals before
agencies formally adopt them;
(2) to publish analyses of existing regulations with
recommendations for modifications, including
recommendations to strengthen rules where the benefits
appear to justify the costs and recommendations to relax
or eliminate rules where the reverse may be true; and
The AEI-Brookings Joint Center for Regulatory Studies fills that
policy void.
Organization of the Center
The Joint Center is led by Robert W. Hahn, Executive Director, and
Robert E. Litan, Director. Robert W. Crandall, Christopher C. DeMuth,
Judyth W. Pendell, Scott J. Wallsten and Clifford M. Winston are
fellows at the Joint Center.
The Joint Center has the following council of academic advisers:
(3) to publish essays that evaluate the impact of regulatory
policies and suggest ways to improve the regulatory
process.
Both institutions believe that the media and the policy community
look to the Joint Center as an objective, highly respected source of
information on regulatory policy issues.
Rationale for the Joint Center
Federal regulation—especially environmental, health, and safety
regulation—has grown dramatically in recent decades, whether
considered absolutely or as a relative share of the U.S. economy.
According to recent comprehensive government reports on the costs
and benefits of federal regulation, produced by the Office of
Management and Budget, the costs of such “social regulation” are
roughly $200 billion annually. If the burden associated with
paperwork is included, such as filling out tax forms, the cost is almost
twice as high, or about $400 billion. That is over 50 percent more
Kenneth J. Arrow
Maureen L. Cropper
Philip K. Howard
Paul L. Joskow
Donald Kennedy
Roger G. Noll
Gilbert S. Omenn
Peter Passell
Richard Schmalensee
Robert N. Stavins
Cass R. Sunstein
W. Kip Viscusi
Stanford University
University of Maryland and World Bank
Covington & Burling
Massachusetts Institute of Technology
Stanford University
Stanford University
University of Michigan
Milken Institute
Massachusetts Institute of Technology
Harvard University
University of Chicago
Harvard University
The academic advisers provide guidance on the Joint Center’s
research agenda. In addition, they contribute to the intellectual
output of the Joint Center and identify other scholars who are
working on important regulatory policy issues.
15
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
Appendix II
Economics Institute for Judges, Week One
J O I N T
C E N T E R
AEI-BROOKINGS JOINT CENTER FOR REGULATORY STUDIES
JUDICIAL EDUCATION PROGRAM
WASHINGTON, DC
Monday, March 7, 2005
Tuesday, March 8, 2005
WELCOME AND INTRODUCTION
INSTRUCTOR: HENRY BUTLER AND KEITH CHAUVIN
ECONOMICS THINKING
INSTRUCTORS: KEITH CHAUVIN AND HENRY BUTLER
Reading Assignment
Reading Assignment
Butler, Economic Analysis for Lawyers:
Chapter I, The Economics Perspective: Incentives Matter
Chapter II, The Methodology of Economics
Chapter III, Markets, Prices and Voluntary Exchange
Butler, Economic Analysis for Lawyers:
Chapter I, The Economics Perspective: Incentives Matter
Chapter II, The Methodology of Economics
Chapter III, Markets, Prices and Voluntary Exchange
Agenda
16
Agenda
2:00
Registration
7:15
Continental Breakfast
3:00 to 3:20
Welcome—Robert Hahn, Executive
Director, AEI-Brookings Joint Center
8:00 to 9:15
Marginal Analysis—Keith Chauvin
9:15 to 9:30
Break
Henry N. Butler, Director, Joint Center
Judicial Education Program
9:30 to 10:45
Supply & Demand in the Courts/What’s So
Great About Markets?—Henry Butler
William M. Goodwin, Senior Director,
Brookings Center for Executive Education
10:45 to 11:00
Break
11:00 to 12:15
Auction and Market Prices—Keith Chauvin
12:15 to 2:00
Lunch on your own
2:00 to 3:30
Market Wages: Minimum Wage,
Compensating Wage Differentials,
and Market Incentives to Provide a
“Safe” Workplace—Keith Chauvin
3:20 to 4:20
Introduction to Economics—
Henry Butler, Director, JEP
4:20 to 4:40
Break
4:40 to 6:00
Introduction to Supply and Demand—
Henry Butler and Keith W. Chauvin,
University of Kansas
6:00 to 6:45
Reception
3:30 to 3:45
Break
6:45
Dinner
3:45 to 5:00
What’s Wrong with Markets?
Introduction to Market Failures—Henry Butler
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Economics Institute for Judges, Week One (continued)
Wednesday, March 9, 2005
Thursday, March 10, 2005
MARKET IMPERFECTIONS
INSTRUCTOR: HENRY BUTLER
VALUATION AND FINANCIAL ECONOMICS
INSTRUCTORS: ROBERT LITAN, HENRY BUTLER
AND PETER WALLISON
Reading Assignment
Reading Assignment
Butler, Economic Analysis for Lawyers:
Chapter II, The Methodology of Law and Economics (pages 84-131)
Chapter V, Competition and Monopoly (skim entire chapter, study
pages 306 to 328)
Butler, Economic Analysis for Lawyers:
Chapter IV, Principles of Valuation (pages 183-204)
Chapter X, Organizational Economics (skim pages 746-798)
Chapter XI, Financial Economics (pages 799-815, 866-882,
and skim the rest of the chapter)
Agenda
7:15 to 8:00
Continental Breakfast
8:00 to 9:15
Competition, Monopoly, and Cartels
9:15 to 9:30
Break
9:30 to 10:45
The Economic Theory of Regulation
10:45 to 11:00
Break
11:00 to 12:15
The Coase Theorem
Before class, please re-read for class discussion: Trevino (p. 195),
O’Shea (p. 202), Cappello (p. 209), Kamin (p. 178), First Alabama
Bank (p. 872) and accompanying notes and questions.
Agenda
7:15 to 8:00
Continental Breakfast
8:00 to 9:15
Principles of Valuation—Robert E. Litan,
The Brookings Institution
9:15 to 9:30
Break
9:30 to 10:45
Basic Financial Concepts—Bob Litan
10:45 to 11:00
Break
11:00 to 12:15
Corporate Governance—Henry Butler
12:15 to 1:45
Working Lunch, Robert Crandall,
Senior Fellow, Brookings (invited)
1:45 to 2:00
Break
2:00 to 3:15
Damage Calculations—Bob Litan
3:15 to 3:30
Break
3:30 to 4:30
Selected Cases—Bob Litan
17
AEI-Brookings Joint Center for Regulatory Studies
Economics Institute for Judges, Week One (continued)
Friday, March 11, 2005
MISCELLANEOUS TOPICS
INSTRUCTORS: HENRY BUTLER AND ROBERT LITAN
Reading Assignment
Butler, Economic Analysis for Lawyers:
Chapter VII, Economics of Information (pages 443-461 and 469-476)
Before class, please re-read for class discussion: Peevyhouse (p. 136),
In re Aluminum Phosphide Antitrust Litigation (p.66), Bates (p. 277),
Waxse (p. 444) and Page (p. 471).
Agenda
18
7:15 to 8:00
Continental Breakfast
8:00 to 9:15
Selected Cases—Bob Litan and
Henry Butler
9:15 to 9:30
Break
9:30 to 10:45
Miscellaneous Applications—Henry Butler
10:45 to 11:00
Break
11:00 to 12:00
Review and Preview—Henry Butler
12:00
Adjourn
Judicial Education Program
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Appendix III
Economics Institute for Judges, Week Two
J O I N T
C E N T E R
AEI-BROOKINGS JOINT CENTER FOR REGULATORY STUDIES
JUDICIAL EDUCATION PROGRAM
WASHINGTON, DC
Monday, May 16, 2005
Tuesday, May 17, 2005
Reading Assignment
Reading Assignment
Anderson, Property Rights: A Practical Guide to Freedom
and Prosperity
Butler, Economic Analysis for Lawyers: Chapter VI, Externalities.
Helms, "The Economics of Price Regulation and Innovation"
Calfee, "The High Price of Cheap Drugs"
Agenda
7:00 to 8:00
Registration and Breakfast
8:00 to 8:30
Welcome and Review—Henry Butler
8:30 to 9:30
Free Market Environmentalism?—
Terry Anderson, Senior Fellow, Hoover
Institution, Stanford University, and
Executive Director, Property and
Environment Research Center,
Bozeman, Montana
Trefil and Hazen, Science Matters: Introduction, Chapter I,
and Chapter XIII
Trefil, "A Mind Can Be Open Without Being Empty: Thoughts on
the Skepticism of Scientists"
Bernstein, "Frye, Frye Again: The Past Present, and Future of the
General Acceptance Test," 41 Jurimetrics J. 385-407 (2001).
Bernstein, " The Daubert Trilogy in the States," 44 Jurimetrics __
(2004).
Agenda
9:45 to 11:00
Tragedy of the Commons;
The Coase Theorem—Terry Anderson
11:15 to 12:15
Property Rights and Environmental
Entrepreneurs—Terry Anderson
12:15 to 2:00
Luncheon Discussion: "The Use (and
Misuse) of Economics in Environmental
Policymaking"—Paul Portney, President,
Resources for the Future
2:15 to 3:30
Environmental Regulation in
the Courts—Terry Anderson
3:45 to 5:00
Impact of Pharmaceutical Price Controls
on R & D—Robert Helms,
Senior Fellow, AEI
8:00 to 9:15
The Scientific Process—James S. Trefil,
Clarence J. Robinson Professor of Physics,
George Mason University
9:30 to 10:45
Scientific Decision Making—James S. Trefil
11:00 to 12:15
Introduction to Modern Molecular Biology—
James S. Trefil
12:15 to 2:00
Luncheon Discussion: The Admissibility
of Scientific Evidence: Frye v. Daubert in
State Courts
David Bernstein, George Mason University
School of Law
Deborah Runkle, Court Appointed
Scientific Experts (CASE), Project Manager,
American Association for the Advancement
of Science
Ned Miltenberg, Center for
Constitutional Litigation
19
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Economics Institute for Judges, Week Two (continued)
Wednesday, May 18, 2005
Thursday, May 19, 2005
Reading Assignment
Reading Assignment
Johnston, "Notes on the Economics of Liability, Risk, and
Organizational Incentives"
Butler, Economic Analysis for Lawyers: Chapter IX, Part D, Tort
Law (pages 607-649)
Phillip K. Howard, "When Judges Won’t Judge," WALL STREET
JOURNAL, October 22, 2003.
Agenda
20
7:15 to 8:00
Continental Breakfast
8:00 to 9:15
Economics of Accidents: Tort Law Doctrine
and Incentives—Jason Johnston,
Robert G. Fuller, Jr. Professor of Law and
Director, Program on Law and the
Environment, University of Pennsylvania
School of Law
9:15 to 9:30
Break
9:30 to 10:45
Economics of Tort Damages: Loss
Spreading, Loss Shifting and Insurance
Jason Johnston
10:45 to 11:00
Break
11:00 to 12:15
Economics of Tort Claims: Suit, Settlement,
Trial and Deterrence; Contingency Fees;
Securitization and/or Selling of Tort Claims—
Jason Johnston
12:15 to 2:00
Working Lunch: Medical Courts and the
Medical Liability Crisis—
Philip K. Howard, Chairman and Founder,
Common Good
Butler, Economic Analysis for Lawyers, pp. 212 to 220 (on "The
Hedonic Value of Life")
Inglis, McCabe, Rassenti, Simmons & Tallroth, Experiments on the
Effects of Fee Shifting and Discovery on the Efficient Settlement
of Tort Claims (manuscript, 2005)
Sunstein, et. al, PUNITIVE DAMAGES, HOW JURIES DECIDE
(The University of Chicago Press, 2003):
Introduction: The Problem and Efforts to Understand It
(by George Priest)
Chapter 1: Overview—What We Did and What We Found
(by Reid Hastie)
Chapter 12: Conclusions—Putting It All Together (by Reid Hastie)
Chapter 13: Conclusions—What Should Be Done (by Cass Sunstein)
State Farm v. Campbell, 123 S.Ct. 1513 (2003)
Suggested Readings:
Briefs on Economic Analysis of Punitive Damages in
State Farm v. Campbell:
• Brief of Keith M. Hylton as Amicus Curiae in Support of
Respondents (Campbell)
• Brief Amicus Curiae of A. Mitchell Polinsky, Steven Shavell, and
the Citizens for a Sound Economy Foundation in Support of
Petitioner (State Farm)
Agenda
8:00 to 9:15
Experimental Economics and the Law—Part 1
Kevin McCabe, Professor of Economics and
Law, Interdisciplinary Center for Economic
Science, George Mason University
9:30 to 10:45
Offshoring of White Collar Work—
Susan M. Collins, Senior Fellow, Economic
Studies, The Brookings Institution, and
Professor of Economics, Georgetown University
11:00 to 12:15
Determinants of Economic Growth—
Susan Collins
12:30 to 2:00
Working Lunch: Law and Economics:
A View from the Bench, The Honorable
Douglas H. Ginsburg, Chief Judge,
United States Court of Appeals for
the D.C. Circuit
2:15 to 3:30
Nonpecuniary Losses and Recovery for Pain
and Suffering—Robert E. Litan,
Co-Director, AEI-Brookings Joint Center
3:45 to 5:00
The Economic Function of Punitive
Damages v. Jury Behavior in Awarding
Punitive Damages—Robert E. Litan
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
Economics Institute for Judges, Week Two (continued)
Friday, May 20, 2005
Reading Assignment
American Legislative Exchange Council, Model Act—"Full and Fair
Noneconomics Damages Act" (August 1004)
Sharkey, Unintended Consequences of Medical Malpractice Caps, 80
N.Y.U.L.Rev. __ (forthcoming May 2005) (Introduction and Conclusion)
Agenda
8:00 to 9:15
Experimental Economics and the Law—
Part 2
Kevin McCabe, Professor of Economics
and Law, Interdisciplinary Center for
Economic Science,
George Mason University
9:30 to 10:45
The Impact of Caps on Non-Economic
Damages
Panel Discussion:
Robert E. Litan, Moderator
Robert S. Peck, Center for Constitutional
Litigation, PC, Washington
Victor E. Schwartz, Shook, Hardy & Bacon,
LLP, Washington
11:00 to 12:00
Evaluation and Review—Henry Butler
21
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Appendix IV
Judicial Symposium
Punitive Damages: The Law, The Jury, and The Judge
J O I N T
C E N T E R
AEI-BROOKINGS JOINT CENTER FOR REGULATORY STUDIES
JUDICIAL EDUCATION PROGRAM
WASHINGTON, DC
Wednesday, September 22, 2004
Agenda
3:00 p.m. to 4:00 p.m.
Registration and Refreshments—Auditorium Atrium
4:00 p.m. to 4:15 p.m.
Welcoming Remarks
Robert W. Hahn, Executive Director of the AEI-Brookings Joint Center for
Regulatory Studies, and Resident Scholar at the American Enterprise Institute
Henry N. Butler, Director, AEI-Brookings Joint Center Judicial Education
Program, and Professor of Economics, Chapman University, Orange, California
William M. Goodwin, Senior Director, Center for Public Policy Education,
The Brookings Institution
T. Alexander Aleinikoff, Professor of Law; Executive Vice President,
Law Center Affairs; Dean of the Law Center, Georgetown University
4:15 p.m. to 5:15 p.m.
Moderator:
Speaker:
Judyth Pendell, Senior Fellow, AEI-Brookings Joint Center, and Senior Advisor,
AEI-Brookings Joint Center Judicial Education Program
Walter E. Dellinger, Partner, O’Melveny & Myers LLP and the
Douglas B. Maggs, Professor of Law at Duke University
5:15 p.m. to 5:30 p.m.
Break -- Atrium
5:30 p.m. to 6:30 p.m.
Economic Perspectives on Punitive Damages
(as Briefed in State Farm v. Campbell)
Henry N. Butler, Director, JEP
Keith N. Hylton, Professor of Law and Paul J. Liacos Scholar,
Boston University
Paul H. Rubin, Samuel Candler Dobbs Professor of Economics and Law, Emory University
Steven Garber, Senior Economist, Institute for Civil Justice, RAND,
Santa Monica, California
Moderator:
Speakers:
6:30 to 7:30 p.m.
22
A History of Punitive Damages and Issues in Controversy
Reception, Hyatt Regency Washington on Capitol Hill, 400 New Jersey Ave., NW
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
Judicial Symposium
Punitive Damages: The Law, The Jury, and The Judge (continued)
Thursday, September 23, 2004
Agenda
7:00 a.m. to 8:00 a.m.
Continental Breakfast—Atrium
8:00 a.m. to 9:50 a.m.
Moderator:
Speakers:
The Law of Punitive Damages in the Wake of State Farm v. Campbell
The Honorable R. William Riggs, Supreme Court of Oregon
Victor E. Schwartz, Partner, Shook Hardy & Bacon, Washington, DC
Robert Peck, President, Center for Constitutional Litigation, Washington, DC
George L. Priest, John M. Olin Professor of Law and Economics, Yale Law School
Michael H. Gottesman, Professor, Georgetown University Law Center
9:50 a.m. to 10:10 a.m.
Break—Atrium
10:10 a.m. to Noon
Moderator:
Empirical Research: How Juries and Judges Handle Punitive Damages
Robert E. Litan, Co-Director, AEI-Brookings Joint Center, and Vice
President, Research and Policy, Ewing Marion Kauffman Foundation, Kansas City, Missouri
W. Kip Viscusi, John F. Cogan, Jr., Professor of Law and Economics, and
Director, Program on Empirical Legal Studies, Harvard Law School
Reid Hastie, Professor of Behavioral Science, Center for Decision
Research, University of Chicago Graduate School of Business
John W. Payne, Joseph J. Ruvane, Jr. Professor of Management and
Marketing, The Fuqua School of Business, Duke University
Speakers:
12:15 p.m. to 1:45 p.m.
Lunch—The Bernard S. and Sarah M. Gerwirz Student Center, 12th Floor Lounge
2:00 p.m. to 3:20 p.m.
Moderator:
Speakers:
Commentary on Empirical Research
Robert E. Litan
Catherine M. Sharkey, Associate Professor, Columbia Law School
Valerie P. Hans, Professor of Criminal Justice and Psychology,
University of Delaware
Robert J. MacCoun, Professor of Law and Public Policy, Boalt Hall,
University of California at Berkeley
Response
W. Kip Viscusi, Harvard Law School
Reid Hastie, University of Chicago Graduate School of Business
John W. Payne, The Fuqua School of Business, Duke University
3:20 p.m. to 3:40 p.m.
Break—Atrium
3:40 p.m. to 5:00 p.m.
Moderator:
Speakers:
Procedural and Legislative Approaches to Managing Punitive Damages
The Honorable Ted E. Wedemeyer, Jr., Wisconsin Court of Appeals
Paul F. Rothstein, Professor of Law, Georgetown University Law Center
Victor E. Schwartz, Partner, Shook Hardy & Bacon, Washington
Ned Miltenberg, Senior Litigation Counsel, Center for Constitutional
Litigation, Washington
23
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Judicial Symposium
Punitive Damages: The Law, The Jury, and The Judge (continued)
Friday, September 24, 2004
Agenda
7:00 a.m. to 8:00 a.m.
Continental Breakfast—Atrium
8:00 a.m. to 9:50 a.m.
Cutting Edge Issues in Punitive Damages: Class Actions, Mass Torts,
Medical Malpractice
Moderator:
The Honorable Rose H. Sconiers, New York Supreme Courts
Speakers:
Elizabeth J. Cabraser, Lieff, Cabraser, Heimann & Bernstein, San Francisco
John Beisner, Partner, O’Melveny & Myers, Washington
Charles M. Silver, Cecil D. Redford Professor in Law and Robert W.
Calvert Faculty Fellow in Law, University of Texas School of Law
Stephanie W. Kanwit, Special Counsel, America’s Health Insurance Plans,
Washington, DC
9:50 a.m. to 10:10 a.m.
Break—Atrium
10:10 a.m. to Noon
Punishing Regulatory Compliance
Moderator:
Speakers:
Judyth Pendell, Senior Fellow, Joint Center, and Senior Advisory, JEP
The Honorable Larry Mirel, Commissioner of the Department of
Insurance, Securities and Banking, District of Columbia
Dan Troy, Chief Counsel, U.S. Food and Drug Administration
Michael B. Hyman, Partner, Much, Shelist, Freed, Denenberg, Ament &
Rubenstein, Chicago
Paul D. Rheingold, Partner, Rheingold, Valet, Rheingold, Shkolnik & McCarthy,
New York City
Edward W. Warren, Partner, Kirkland & Ellis, Washington
24
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
Appendix V
Judicial Symposium
Critical Issues in Construction Defects Litigation
J O I N T
C E N T E R
AEI-BROOKINGS JOINT CENTER FOR REGULATORY STUDIES
JUDICIAL EDUCATION PROGRAM
WASHINGTON, DC
Wednesday, January 26, 2005
Agenda
5:00 to 7:00
Optional: Meet-and-Greet Reception
Thursday, January 27
Agenda
7:30 to 8:30
Registration and Continental Breakfast
8:30 to 8:40
Welcome
Robert Hahn, Executive Director, AEI-Brookings Joint Center for Regulatory Studies
William M. Goodwin, Senior Director, Brookings Center for Executive Education
Henry N. Butler, Director, AEI-Brookings Joint Center Judicial Education Program
8:40 to 10:00
Topics:
Background: Real Estate Development and Home Construction
Land Acquisition and Zoning
Land Development
Financing
Construction/design
Contracting
Moderator:
Henry N. Butler, Director, JEP
Speakers:
John J. Delaney, Senior Counsel, Linowes and Blocker LLP, Bethesda, Maryland
Richard (Rich) J. Hajjar, Senior Vice President/Regional Executive
Mid-Atlantic/Tennessee/Texas Home Builder Regions, Bank of America Home Builder Division
Richard M. Guerard, General Partner, Wyndham Deerpoint Homes, North Aurora, Illinois
10:15 to 11:45
Topics:
Overview: The Law of Construction Defects
Definition of defect, relevant standards (e.g., building codes), legal bases for contractual
liability, subcontractor and supplier liability, notice and opportunity to repair, actions under
law and actions under the contract, contractor defenses, contribution and indemnity,
economic loss rule, warranties, damages, insurance, alternative dispute resolution, etc.
Moderator:
The Honorable David R. Donnersberger, Illinois Circuit Courts, Chicago
Speakers:
D. Steven Henry, Partner, Gardere, Dallas, Texas
Gregory A. Harwell, Partner, Gardere, Dallas, Texas
25
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Judicial Symposium
Critical Issues in Construction Defects Litigation (continued)
Thursday, January 27, 2005 (continued)
Agenda
11:45 to 1:00
Lunch
1:00 to 2:15
Moderator:
Insurance Coverage for Defective Construction
The Honorable Lynn O’Malley Taylor, Marin County Superior Court, San Rafael, California
Speakers:
Stephen R. Mysliwiec, Partner, DLA Piper Rudnick Gray Cary, Washington
Lee H. Ogburn, Kramon & Graham, P.A., Baltimore, Maryland
2:30 to 4:00
Moderator:
Cutting-Edge Issues in Construction Defects Litigation
The Honorable Anne Elizabeth Barnes, Georgia Court of Appeals, Atlanta
Notice and Opportunity to Repair
D. Steven Henry, Partner, Gardere, Dallas, Texas
Frederick R. Dudley, Akerman Senterfitt, Tallahassee, Florida
"Class Actions" and "Mass Actions"
Everette L. Doffermyre, Doffermyre Shields Canfield Knowles & Devine, LLC,
Atlanta, Georgia
W. Andrew Copenhaver, Womble Carlyle Sandbridge & Rice, PLLC,
Winston-Salem, North Carolina
Product Defect Litigation
Joel R. Rhine, Lea, Rhine & Rosbrugh, Wilmington, North Carolina
Stephen E. Embry, Frost Brown Todd, LLC, Louisville, Kentucky
Discussion and Q&A
4:15 to 5:30
Moderator:
Expert Testimony and Scientific Evidence in Construction Defects Cases
The Honorable Gisela Cardonne Ely, Eleventh Circuit Court of Florida, Miami
Summary of Daubert Trilogy in the States
Robert P. Charrow, Greenberg Traurig, LLP, Washington
Barry J. Nace, Paulson & Nace, Washington
Selected Evidentiary Issues from Recent Cases
Patrick J. Perrone, McCarter & English, LLP, Newark, New Jersey
Daniel K. Bryson, Lewis & Roberts, Raleigh, North Carolina
Discussion and Q & A
5:45 to 6:30
26
Reception
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
Judicial Symposium
Critical Issues in Construction Defects Litigation (continued)
Friday, January 28, 2005
Agenda
7:30 to 8:30
Continental Breakfast
8:00 to 10:00
Topics:
Management of Complex Construction Defect Cases
Multiple Parties (homeowners, contractors, subcontractors,
suppliers, manufacturers, design professionals, insurers, attorneys)
Use of Case Management Orders
Moderator:
The Honorable Jonathan H. Cannon, Orange Court Superior Court,
Santa Ana, California
Panel Discussion:
The Honorable Nancy M. Saitta, Eighth Judicial District of Nevada,
Clark County, Las Vegas, Nevada
The Honorable Allan R. Earl, Eighth Judicial District of Nevada,
Clark County, Las Vegas, Nevada
The Honorable Michael A. Cherry, Eighth Judicial District of Nevada,
Clark County, Las Vegas, Nevada
Stephen E. Embry, Frost Brown Todd, LLC, Louisville, Kentucky
Stephen J. Henning, Wood Smith Henning & Berman LLP, Los Angeles
Ross Feinberg, Feinberg Grant, Las Vegas
10:20 to 12:00
Topic:
Moderator:
Arbitration
Arbitration Clauses in Construction Defect Cases
The Honorable David G. Sills, California Court of Appeal,
Fourth District, Santa Ana
Speakers:
F. Peter Phillips, Senior Vice President, The CPR Institute for Dispute
Resolution, New York, New York
Lawrence Watson, Upchurch Watson White & Max, Maitland, Florida
D. Steven Henry, Partner, Gardere, Dallas, Texas
12:00
Symposium Adjourns
27
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Appendix VI
Judicial Symposium
Critical Issues in Toxic Torts Litigation
J O I N T
C E N T E R
AEI-BROOKINGS JOINT CENTER FOR REGULATORY STUDIES
JUDICIAL EDUCATION PROGRAM
WASHINGTON, DC
Wednesday, April 27, 2005
Hyatt Regency Capitol Hill
6:00 to 7:00 PM
Meet-and-Greet Reception (optional, no agenda)
Thursday, April 28, 2005
Georgetown University Law Center
Agenda
7:30 to 8:30
Continental Breakfast and Registration
8:30 to 8:40
Welcome and Introductions
Robert Hahn, Executive Director, AEI-Brookings Joint Center
Dean T. Alexander Aleinikoff, Georgetown University Law Center
William Goodwin, Senior Director, Brookings Center for Executive Education, The Brookings Institution
Henry Butler, Director, Judicial Education Program
Panel 1—Introduction
8:40 to 9:30
Moderator:
9:30 to 10:30
Speaker:
10:30 to 10:50
Opening Address:
Professor George L. Priest, John M. Olin Professor of Law and Economics, Yale Law School (30 minutes)
Henry N. Butler, Director, JEP
Questions and Answers
Topic: Trends in Toxic Tort Litigation: Asbestos, Silica, MTBE, Welding Rods, Lead Paint
Peter Kelso, Senior Editor, Asbestos, Asbestos Bankruptcy and International Asbestos Reports,
LexisNexis® Mealey Publications and Conferences Group (30 minutes)
Reaction (10 minutes each):
Joseph F. Rice, Motley Rice LLC, Mount Pleasant, South Carolina
David C. Landin, Hunton & Williams, LLP, Richmond, Virginia
Discussion and Q&A
Break
Panel 2—Developments in Toxic Tort Law
10:50 to 12:00
Moderator:
The Honorable Steven I. Platt, Circuit Court for Prince George’s County, Upper Marlboro, Maryland
Speaker (30 minutes):
Professor Michael H. Gottesman, Georgetown University Law Center
Topics: Punitive Damages, Market Share Liability, Second Injury/Splitting the Cause of
Action, Insolvent Defendants, Medical Monitoring
Reaction (10 minutes each):
Richard F. Scruggs, The Scruggs Law Firm, Oxford, Mississippi
Victor E. Schwartz, Shook Hardy & Bacon, Washington, DC
28
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
Judicial Symposium
Critical Issues in Toxic Torts Litigation (continued)
Thursday, April 28, 2005 (continued)
Agenda
Discussion and Q&A
12:00 to 1:00
Lunch Break
Panel 3—Unimpaired Claimants
1:00 to 3:00
Moderator:
The Honorable Thomas E. Hollenhorst, California Court of Appeal, Riverside, California
Introduction (15 minutes):
Professor Paul Rothstein, Georgetown University Law Center
Topic: PCBs and other Trace Chemicals (10 minutes each)
Robert E. Shields, Doffermyre, Shields, Canfield, Knowles & Devine, Atlanta, Georgia
Kenneth R. Heineman, Husch & Eppenberger, LLC, St. Louis, Missouri
Topic: Silica (10 minutes each)
Mikal C. Watts, Watts Law Firm, LLP, Brownsville, Texas
Fred Krutz, Forman, Perry, Watkins, Krutz & Tardy, LLP, Jackson, Mississippi
Topic: Asbestos (10 minutes each)
Frederick M. Baron, Baron & Budd, Dallas, Texas
Robert H. Riley, Shiff Hardin LLP, Chicago, Illinois
Discussion and Q&A
3:00 to 3:30
Break
Panel 4—Causation, Causation, Causation
3:30 to 5:30
Moderator:
The Honorable Anne Elizabeth Barnes, Georgia Court of Appeals, Atlanta, Georgia
Introduction: (20 minutes)
Professor Michael D. Green, Bess and Walter Williams Professor of Law, Wake Forest University
Topic: Asbestos (10 minutes each)
Alan R. Brayton, Brayton Purcell, Novato, California
Richard O. Faulk, Gardere Wynn Sewell LLP, Houston, Texas
Topic: Fen/Phen, Vioxx and other Drugs (10 minutes each)
Paul D. Rheingold, Rheingold, Valet, Rheingold, Shkolnik & McCartney
Peter. T. Grossi, Jr., Arnold & Porter, LLP, Washington
Topic: Psychotherapeutic Agents: Antipsychotics, Antidepressants,
and Antianxiety Medications (10 minutes each)
C. Neal Pope, Pope, McGlamry, Kilpatrick, Morrison & Norword, LLP, Atlanta, Georgia
Malcolm E. Wheeler, Wheeler Trigg Kennedy LLP, Denver, Colorado
Discussion and Q&A
29
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Judicial Symposium
Critical Issues in Toxic Torts Litigation (continued)
Friday, April 29, 2005
Georgetown University Law Center
Agenda
7:00 to 8:00
Continental Breakfast and Registration
Panel 5—Case Studies: Regulation Through Litigation
8:00 to 9:45
Speaker:
Moderator: The Honorable Gisela Cardonne Ely, Florida Eleventh Circuit Court, Miami, Florida
Topic: MTBE: Backgound Information
Daniel S. Greenbaum, President, Health Effects Institute, Boston, Massachusetts (20 minutes)
Topic: MTBE: Regulation Through Litigation? (10 minutes each):
Robert J. Gordon, Weitz & Luxemberg, New York
John J. Lyons, Latham & Watkins, LLP, Los Angeles
Speaker:
Topic: Prescription Access Litigation
Elizabeth Cabraser, Lieff, Cabraser, Heimann & Bernstein, San Francisco (20 minutes)
Reaction (10 minutes each):
Bruce N. Kuhlik, Esq., Senior Vice President and General Counsel, Pharmaceutical Research
and Manufacturers Association, Washington
Richard L. Manning, Ph.D., Senior Director, Corporate Policy, Pfizer, Inc., New York
Discussion and Q&A
9:45 to 10:00
Break
Panel 6—Case Management Tools That Work
10:00 to 11:15
Speakers:
11:30 to 12:30
Moderator: The Honorable Ernest H. Goldsmith, Superior Court of California,
San Francisco, California
Topic: What Tools are Available to the Court?
The Honorable Mark Davidson, Harris County District Court, Houston, Texas
The Honorable Helen E. Freedman, Supreme Courts of New York, Commercial Division,
New York, New York
The Honorable Sam C. Pointer, Lightfoot, Franklin & White, LLC, Birmingham, Alabama
(retired United States District Judge for the Northern District of Alabama)
The Honorable Arthur M. Recht, First Judicial Circuit, Wheeling, West Virginia
Closing Address
"Drawing the Lines Between Courts and Legislatures"
Walter E. Dellinger, Partner, O’Melveny & Myers LLP and
the Douglas B. Maggs Professor of Law at Duke University
Moderator:
Judyth Pendell, Senior Fellow, AEI-Brookings Joint Center, and Senior Advisor, JEP
Reaction:
Andrew F. Popper, Professor of Law, American University Washington College of Law,
Washington, DC
Discussion and Q&A
30
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
Appendix VII
Advanced Law and Economics Institute for Judges
Punishing Corporate Misconduct
J O I N T
C E N T E R
AEI-BROOKINGS JOINT CENTER FOR REGULATORY STUDIES
JUDICIAL EDUCATION PROGRAM
WASHINGTON, DC
Sunday, December 12, 2004
6:00 to 7:00
Meet-and-Greet Reception at Jurys Washington Hotel, 1500 New Hampshire Avenue, NW (optional)
Monday, December 13, 2004
Agenda
8:30 to 9:00
Registration at The Brookings Institution, 1775 Massachusetts Avenue, NW
9:00 to 9:10
Welcome and Introductions
Robert Hahn, Executive Director, AEI-Brookings Joint Center
Henry N. Butler, Director, Judicial Education Program
William M. Goodwin, Senior Director, Brookings Center for Public Policy Education
9:10 to 10:30
Session 1: The Basic Model of Precaution:
Legal Sanctions and Market Incentives
Professor Jason Scott Johnston, Robert G. Fuller, Jr. Professor and Director, Program on Law
and the Environment, University of Pennsylvania Law School
READING ASSIGNMENT:
Jason Johnston, "Legal Sanctions, Market Incentives and the Corporation"
10:45 to 12:00
Session 2: A Brief History of the Criminal Law
Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation, and
Adjunct Professor, George Mason University School of Law
READING ASSIGNMENT:
Paul Rosenzweig, "Terms of Art: Mens Rea"
12:00 to 1:00
Lunch at Brookings
1:00 to 2:20
Session 3: Purposes of Corporate Liability: Looking Inside the Black Box
Professor Jennifer Arlen, Norma Z. Paige Professor of Law, New York University
READING ASSIGNMENT:
Jennifer Arlen "Evolution of Corporate Criminal Liability: Implications for Managers"
2:40 to 4:00
Session 4: Optimal Structure of Corporate Liability: Sanction Mitigation and
Criminal versus Civil Sanctions for Corporations
Professor Jennifer Arlen
READING ASSIGNMENT:
Jennifer Arlen & Reinier Kraakman, "Structuring Corporate Liability," modified and abridged
version of "Controlling Corporate Misconduct: An Analysis of Corporate Liability Regimes,"
72 N.Y.U. L. Rev. 687-779 (1997)
31
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Advanced Law and Economics Institute for Judges
Punishing Corporate Misconduct (continued)
Tuesday, December 14, 2004
Agenda
8:00 to 9:15
Session 5: The Role of Reputational Sanctions
Cindy R. Alexander, Ph.D., Assistant Chief Economist for Corporate
Finance and Disclosure, Office of Economic Analysis, Securities and Exchange Commission
READING ASSIGNMENT:
Alexander, Cindy R. (1999), "On the Nature of the Reputational Penalty for Corporate
Crime: Evidence," 42 Journal of Law and Economics 489-526.
Bhagat, Sanjai and Roberta Romano (2002). "Event Studies and the Law: Part I: Technique
and Corporate Litigation," 4 American Law & Economics Review 141.
9:30 to 10:45
Session 6: Liability v. Regulation in Guiding Corporate Behavior
Professor Jason Johnston
11:00 to 12:15
Session 7: The Overlap Between Federal and State Criminal Liability
Professor Jason Johnston
READING ASSIGNMENT:
Thompson & Sale, Securities Fraud as Corporate Governance: Reflections Upon Federalism,
56 Vand. L. Rev. 859 (2003)
12:15 to 1:30
Lunch at Brookings
1:30 to 3:00
Session 8: The Economics of Punitive Damages
Robert E. Litan, Co-Director AEI-Brookings Joint Center
READING ASSIGNMENT:
Briefs on Economic Analysis of Punitive Damages in State Farm v. Campbell:
• Brief of Keith M. Hylton as Amicus Curiae in Support of Respondents (Campbell)
• Brief Amicus Curiae of A. Mitchell Polinsky, Steven Shavell, and the Citizens for a
Sound Economy Foundation in Support of Petitioner (State Farm)
Sunstein, et. al, PUNITIVE DAMAGES, HOW JURIES DECIDE (The University of
Chicago Press, 2003):
• Introduction: The Problem and Efforts to Understand It (by George Priest)
• Chapter 1: Overview—What We Did and What We Found (by Reid Hastie)
• Chapter 12: Conclusions—Putting It All Together (by Reid Hastie)
• Chapter 13: Conclusions—What Should Be Done (by Cass Sunstein)
3:20 to 5:00
Moderator:
Session 9: The Law of Punitive Damages in the Wake of State Farm v. Campbell
Robert Litan
Panelists:
Samuel A. Thumma, Perkins Coie Brown & Bain, Phoenix, AZ
Victor Schwartz, Shook, Hardy & Bacon, Washington, DC
Robert Peck, Center for Constitutional Litigation, Washington, DC
Robert Levy, Cato Institute, Washington, DC
32
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
Advanced Law and Economics Institute for Judges
Punishing Corporate Misconduct (continued)
Tuesday, December 14, 2004 (continued)
READING ASSIGNMENT:
State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003)
Ned Miltenberg and Erwin Chemerinsky, "Punitive Damages after Campbell, Smith, and Romo,"
Trial (August 2003)
Samuel A. Thumma, "Post-Campbell Cases," National Law Journal, 26 (40), pg.13, and
"State Farm Mutual Automobile Insurance Co. v. Campbell: The First Year."
Victor E. Schwartz, "State Farm v. Avery: State Court Regulation Through Litigation Has Gone
Too Far," 33. Conn. L. Rev. 1215 (2001).
Robert Levy, "The Conservative Split on Punitive Damages," Cato Supreme Court Review, 2003-2004.
Wednesday, December 15, 2005
Agenda
8:00 to 9:40
Moderator:
Speaker:
Session 10: The Criminalization of Commercial Activity and its Consequences
The Honorable L. Mark Bailey, Indiana Court of Appeals
Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation
and Adjunct Professor, George Mason University School of Law
Reaction: The Honorable Joseph F. Bianco, Deputy Assistant Attorney General,
Criminal Division, Department of Justice, Washington, DC
The Honorable William W. Mercer, United States Attorney for the District of Montana, Billings,
Montana
READING ASSIGNMENT:
Paul Rosenzweig, "The Over-Criminalization of Social and Economic Activity,"
Legal Memorandum, The Heritage Foundation, June 25, 2003
John C. Coffee, Jr., "Overcriminalization?" National Law Journal, Vol. 26, No. 48, Pg. 13
RECOMMENDED READING:
Gene Healy, Introduction to GO DIRECTLY TO JAIL: THE CRIMINALIZATION OF ALMOST
EVERYTHING, Gene Healy, editor (Cato, November 2004)
10:00 to 12:00
Moderator:
Session 11: The Erosion of Attorney-Client Privilege
The Honorable Paul L. Rudman, Supreme Judicial Court of Maine
Panelists:
The Honorable Roscoe C. Howard, Jr., Sheppard, Mullin, Richter &
Hampton, LLP, Washington (former United States Attorney, District of Columbia)
The Honorable Mary Beth Buchanan, United States Attorney for the Western District of Pennsylvania,
Pittsburgh, and Director, Executive Office for United States Attorneys, Washington
Robert A. Lonergan, Vice President and General Counsel, Rohm and Hass Company, Philadelphia
David Kris, Vice President for Corporate Compliance, Time-Warner Inc., Washington
The Honorable Richard Cullen, Partner, McGuireWoods, Richmond, Virginia
(former Attorney General of Virginia and former United States Attorney, Eastern District of Virginia)
The Honorable Paul McNulty, United States Attorney for the Eastern District of Virginia
12:00
Adjourn
33
AEI-Brookings Joint Center for Regulatory Studies
Judicial Education Program
Appendix VIII
34
Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
35
Judicial Education Program
Contributor Information
The Brookings Institution, a 501(c) (3) corporation, accepts gifts made
in support of the Judicial Education Program.
Checks should be made out to “The Brookings Institution” with a memo designating
the support for the “Judicial Education Program” and mailed to:
Robert E. Litan
AEI-Brookings Joint Center for Regulatory Studies
The Brookings Institution
1775 Massachusetts Ave., N.W.
Washington, D.C. 20036
The Brookings Institution’s federal identification number is 53-0196577.
See Appendix VII for The Brookings Institution’s tax determination letter.
Contact Information
For information about the JEP or its activities, please contact:
Henry N. Butler
Director, Judicial Education Program
AEI-Brookings Joint Center for Regulatory Studies
3943 Irvine Blvd., #286
Irvine, CA 92602
714-731-2292
hbutler@brookings.edu