Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 10/01/2002 01/01/2003 - 02/01/2003 02/01/2003 - 03/01/2003 03/01/2003 - 04/01/2003 04/01/2003 - 05/01/2003 05/01/2003 - 06/01/2003 06/01/2003 - 07/01/2003 07/01/2003 - 08/01/2003 08/01/2003 - 09/01/2003 09/01/2003 - 10/01/2003 10/01/2003 - 11/01/2003 11/01/2003 - 12/01/2003 12/01/2003 - 01/01/2004 01/01/2004 - 02/01/2004 02/01/2004 - 03/01/2004 03/01/2004 - 04/01/2004 04/01/2004 - 05/01/2004 05/01/2004 - 06/01/2004 06/01/2004 - 07/01/2004 07/01/2004 - 08/01/2004 08/01/2004 - 09/01/2004 09/01/2004 - 10/01/2004 10/01/2004 - 11/01/2004 11/01/2004 - 12/01/2004 12/01/2004 - 01/01/2005 01/01/2005 - 02/01/2005 02/01/2005 - 03/01/2005 03/01/2005 - 04/01/2005 04/01/2005 - 05/01/2005 05/01/2005 - 06/01/2005 06/01/2005 - 07/01/2005 07/01/2005 - 08/01/2005 08/01/2005 - 09/01/2005 09/01/2005 - 10/01/2005 10/01/2005 - 11/01/2005 11/01/2005 - 12/01/2005 12/01/2005 - 01/01/2006 01/01/2006 - 02/01/2006 02/01/2006 - 03/01/2006 03/01/2006 - 04/01/2006 04/01/2006 - 05/01/2006 05/01/2006 - 06/01/2006 06/01/2006 - 07/01/2006 07/01/2006 - 08/01/2006 03/01/2007 - 04/01/2007 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Saturday, May 31, 2003
Blogging From Rutgers: Legal "Realism" Yesterday was the final day of the seminar on Mind, Language, and Law at Rutgers Law School in Camden--organized by Dennis Patterson and Kim Ferzan. Colin McGinn was the speaker and his topic was realism. McGinn's position is that, pace Michael Dummett, there is no single sense in which realism is used in the various realist/antirealist philosophical debates. Rather, McGinn, suggests, that there are at least three senses of realism:
--Realism as Objectivity. In a second sense, one is a realist about something if one believes that thing is "objective" as opposed to "subjective," where objective is understood as meaning independent of the mind. In this sense, one is a realist about the external world if one believes that mountains and stars exist independly of human minds. --Realism as Determinacy. In a third sense, one is a realist about a domain if one believes that propositions with the domain are determinant in the sense that they are either true or not true. (To simplify, true or false.) Thus "Hamlet has a mole on his left shoulder" is neither true nor false, because Shakespear never tells us whether Hamlet does or does not have such a mole--therefore, on the determinacy conception of realism, one would be an antirealist about Hamlet's mole.
--Objectivity. Is the question whether affirmative action violates equal protection mind independent? In one sense, obviously not. The equal protection caluse is a product of the human mind. On the other hand, we might say that given that humans have created the equal protection clause, it's meaning is independent of what we think about its meaning. --Determinacy. And of course, there is (or was) a raging jurisprudential debate over the determinacy of law. So those who hold that the law is indeterminate, are not realists in this sense. Friday, May 30, 2003
New Papers on the Net Here is the roundup:
This article sidesteps these debates over preemption and instead argues that, quite apart from whether state law is itself efficient, an anti-preemption rule of statutory construction has benefits for the national law-making process. Because of the size and heterogeneity of the population that it governs, Congress has institutional tendencies to avoid politically sensitive issues, deferring them to bureaucratic resolution and instead concentrating on constituency service. Non-federal politicians can disrupt this tendency to ignore or suppress political controversy, by enacting state laws that regulate business interests, thus provoking those interests to seek federal legislation that will preempt the state legislation. In effect, state politicians place issues on Congress' agenda by enacting state legislation. Because business groups tend to have more consistent incentives to seek preemption than anti-preemption interests have to oppose preemption, controversial regulatory issues are more likely to end up on Congress' agenda if business groups bear the burden of seeking preemption. Moreover, the interests opposing preemption tend to use publicity rather than internal congressional procedures to promote their ends. Therefore, by adopting an anti-preemption rule of construction, the courts would tend to promote more highly visible, vigorous style of public debate in Congress.
Leiter on the Hermeneutics of Suspicion Today at Oxford, Brian Leiter (Texas, Law & Philosophy) presents The Hermeneutics of Suspicion. Thursday, May 29, 2003
Balkin on Hibbs Jack Balkin has a very good post on Nevada Department of Human Resources v. Hibbs, the Supreme Court's most recent 11th Amendment decision in which O'Connor & Rehnquist both joined the liberal/moderate wing of the Court. Hasen on a Truce in the Confirmation Wars Check out Rick Hasen here critiquing my most entitled Confirmation Wars: Transformational Moves. New Papers on the Net Here is the roundup:
Markel on Mercy I highly recommend Daniel Markel's paper, Against Mercy, forthcoming in the Minnesota Law Review. Here is an excerpt from the abstract:
Blogging from Rutgers: Norm Acquisition and Punishment This week I am attending the seminar on Mind, Language, and Law at Rutgers Law School in Camden--organized by Dennis Patterson Kim Ferzan . Yesterday, the speaker was Stephen Stich and among the many topics he covered was norm acquisition. Stich's hypothesis is inspired by the fact that evolutionary models of cooperative solutions to iterated Prisoner's Dilemma games all involve punishment for defection from cooperation. In particular, Stich hypothesizes that humans have a mechanisms that internalizes norms backed by an effective punishment mechanisms. Stich's particularly vivid metaphor was Pac Man. Stich imagines that humans are lot Pac Man, racing around the social world. Whenever they see a punishment enforced norm, they swallow it, more or less willy nilly. Stich is a careful (if enthusiastic thinker), so he recognizes a number of obvious problems with this view. For example, if we make the reasonable assumption that norms are internalized by humans who never actually observed punishments, then the question arises: how (precisely) does punishment play a role in norm acquisition. Let’s assume that Stich is able to answer this question. His theory, if true, may have some interesting implications for legal theory. Here are some possible implications that might be explored:
--Various informal social sanctions may be important to norm creation, and the law may interact in various ways with such sanctions. For example, legal rules might prohibit or enable such sanctioning behaviors. --Some economic views of law assume that preferences are independent of legal rules, but Stich’s theory, if true, would show that this assumption is systematically false. Duff A book by Antony Duff is something to be celebrated. His Punishment, Communication, and Community is new in paperback from Oxford University Press. From the abstract:
Wednesday, May 28, 2003
New Papers on the Net Here is the roundup:
Peter Swire (Ohio State) posts Efficient Confidentiality for Privacy, Security, and Confidential Business Information. Theodore Eisenberg (Cornell) and Elizabeth Hill (New York University) offer Employment Arbitration and Litigation: An Empirical Comparison. Heinrich Schneider uploads The Constitution Debate, forthcoming in European Integration online Papers. Luis Garicano and Thomas Hubbard (Chicago, Business) post Specialization, Firms, and Markets: The Division of Labor Within and Between Law Firms. Bronwyn Hall (UC Berkeley) posts Business Method Patents, Innovation, and Policy. Peter Alldridge (Cardiff, Business) offers Smuggling, Confiscation and Forfeiture, forthcoming in the Modern Law Review. Nari Lee (University of Turku) uploads The Patent Subject Matter Reconfiguration and the Emergence of Proprietarian Norms - The Patent Eligibility of the Business Methods. Laura Hoyano (Oxford) posts Misconceptions about Wrongful Conception, forthcoming in the Modern Law Review. Yariv Brauner (New York University) offers Taxing Cross-Border M&A in a Globalizing World. Robert Merges (UC Berkeley) uploads The Uninvited Guest: Patents on Wall Street. Mark Drumbl (Washington and Lee) posts several papers: Confirmation Wars: Transformational Moves
The First Mover Problem But who will have the confidence to make the first move? There is a problem of trust and confidence that is difficult to solve given the way the judicial selection problem is currently framed. Suppose President Bush were to make the move that Taylor suggests and promise to nominate candidates who would preserve the ideological balance of the current Supreme Court. Would this be sufficient to restore mutual confidence? Imagine that the President does indeed consult with Senate Democrats on various possible nominees for a Supreme Court vacancy. Lurking in the background of such consultations will be the hot button issues that Taylor identifies (abortion, affirmative action, campaign finance, etc.). What if Rehnquist resigns? Will the Democrats agree to confirm an equally conservative nominee without a fight? Such a decision will not be popular with the Democratic base. Will Democrats trust President Bush to carry out his promise when (and if) Bush is given the chance to nominate a replacement for a more moderate Justice? This latter question is given additional urgency if we contemplate what it would mean to preserve the ideological balance of the Court in the event that Justice O'Connor were to resign. O'Connor is quite conservative on most issues, but moderate on a few, hot-button, issues. How could the Democrats trust any candidate who share O'Connor's general outlook to vote as O'Connor did in Casey to preserve the core of Roe v. Wade? Democrats will evaluate this issue with historical experience in mind--think Blackmun and Souter. But how could President Bush appoint any replacement for O'Connor who would inspire confidence by Democrats? Such a nominee would inevitably reject many of O'Connor's conservative beliefs and swing the balance of the Court to the left on many issues where O'Connor is the swing vote. No set of replacements for O'Connor and Rehnquist is likely to preserve the ideological balance of the Court. Justices are too unpredictable if they are not "extremists," or they are too "extreme" (either to the left or to the right) if their votes are predictable. The Fundamental Assumption Both Democrats and Republicans seem to share a fundamental assumption about the current confirmation war. That fundamental assumption is that judging is inherently political in nature. If we concieve of the judiciary as a third political branch of government, with the authority to use the powers of judicial review and constitutional and statutory interpretation to achieve a political agenda, then control of the judicial branch is the ultimate political prize. The reason that neither party can trust the other is that the stakes are too high. Because judges are elected for life terms, the power to appoint young, highly political judges who constitute a majority of the United States Supreme Court is roughly equivalent in importance to gaining an electoral lock on the Presidency and the Congress for a period of one or two decades. When the stakes are that high, then two conclusions follow. First, if one party believes it has the power to control the Supreme Court it will be loathe to forgo that opportunity voluntarily. Second, for the same reason, neither party can trust the other to reciprocate at the next changing of the guard. A Truly Radical Move A truly radical move is one that would call the fundamental assumption into question. That is, a truly radical move would be for either the Republicans or the Democrats to suggest that judges should be selected on the basis of their possession of the judicial virtues, rather than their political ideology. Such a move would not be pleasant for either party. Judges who are committed to the rule of law are likely to offend both Democrats and Republicans. For example, a judge who takes precedent seriously would be committed to both Hans v. Louisiana and Roe v. Wade, disappointing both the right and the left. But the point of nominating and confirming neoformalist judges is not ideological balance. The point of a radical move to restore the rule of law is that it offers both parties a principled basis for agreement. So long as we think of judges as politicians with life tenure, a truce in the confirmation wars will be difficult to negotiate. Hooker on Fairness at Oxford Brad Hooker presents a lecture with the sparse title Fairness at Oxford today. New from Oxford University Press Simon Chesterman new book Just War or Just Peace? Humanitarian Intervention and International Law is due from Oxford University Press. Tuesday, May 27, 2003
Confrimation Wars Department: Lott Endorses Nuclear Option Marcia Oddi of the Indiana Law Blog brought a very interesting article in the Clarion-Ledger to my attention. Here is an excerpt:
Confirmation Wars Department: Bernstein on Pickering Nomination David Bernstein comments on the Pickering nomination here. Blogging from Rutgers Today, I will blogging intermitently from the Seminar on Mind, Language, and Law organized by Dennis Patterson and Kimberly Ferzan at Rutgers. Today’s speaker is the distinguished philosopher Brian McLaughlin, from the Philosophy faculty at Rutgers. New Alexy from Oxford Robert Alexy's The Argument from Injustice: A Reply to Legal Positivism has been published by Oxford. From the abstract:
Workshops Today Here is the roundup:
At Oxford, Caroline Shackleford presents Mediation of the horizontal application of the South African bill of rights - an instance of power-sharing. Monday, May 26, 2003
Anderson on the Law of War Kenneth Anderson (American University) just posted Who Owns the Rules of War? The War in Iraq Demands a Rethinking of the International Rules of Conduct on SSRN. Here is the abstract:
New Papers on the Net Here is the roundup:
Bruno Frey and Alois Stutzer (Zurich, Institute for Empirical Research in Economics) upload Testing Theories of Happiness. From the abstract:
Paula Cody and Kay Harrison (Government of New Zealand) post The Treaty Settlement Process in New Zealand. Douglas Kysar (Cornell) posts The Expectations of Consumers, forthcoming in the Columbia Law Review. From the abstract:
Catching Up Department Princeton University Press recently published Law's Dream of a Common Knowledge by Mariana Valverde. From the abstract:
Sunday, May 25, 2003
Hasen on the Realpolitik of Filibustering Judicial Confirmation I posted earlier today on the strategic implications of a Republic move to change Rule 22 in order end the filibuster of Estrada and Owen. Perhaps my most important point is that Supreme Court vacancies change the political equation. Rick Hasen adds some very nice points here. Importantly, he notes, "The conventional thinking in the campaign finance world is that Rehnquist's vote is the key to upholding many features of the BCRA." Sandefur on Judicial Civil Disobedience Tim Sandefur has a good post on Judge Pregerson and the competing claims of conscience and equity here. Symposium Issue of Ethics on G.E. Moore The issue is available online, with papers by Christopher Heath Wellman, Stephen Darwall, Connie S. Rosati, Nicholas L. Sturgeon, Frank Jackson, Michael Smith, Thomas Hurka, Jonathan Dancy, and Donald H. Regan. Filibuster Realpolitik
The Senate's Constitutional Duty But they go on to state:
The Realpolitik of the Filibuster Binder and Smith then go to provide a nice analysis of the political consequences of a Republican effort to change the filibuster by one of the parliamentary maneouvers that can circumvent Rule 22's requirement of 2/3rds vote to close debate on a rule change:
The Politics of Going Nuclear When Senator Byrd pioneered the use of the so-called nuclear option during his tenure as Senate Majority leader, his tactics were almost completely invisible to the public and the general media. The actual technique would be a point of order followed by a nondebatable ruling by the chair--sustained. Then the rule change could be adopted by majority vote. And then it would be applied, and a majority would confirm Estrada, Owen, and the rest. Of course, the Democrats have weapons left in their arsenal. They could shut the Senate down by calling for a roll call vote on every matter put before the Senate for unanimous consent. But is it so clear that the Republicans would be seen as the villains if the Democrats shut down the Senate? By way of analogy to the Republican shut down of government over the budget impasse during the Clinton administratin, it seems far more likely that the political losers would be the Democrats. But this does not mean that the nuclear option is politically viable. The decisions to employ Senator Byrd's tactics will not come easy to the Republicans--in part, because Republicans resented those very tactics when they were in the minority. Waiting for the Supreme Court Vacancies Indeed, it is not clear that the Republican caucus is ready to go nuclear now. Some members of the Republican caucus want to wait until the Democrats expand the filibuster, either to a third lower-court nominee or to a Supreme Court nominee (in the fall?). But if the Republicans wait until there is a Bush nominee to the Supreme Court, the political landscape will change again. The Democratic party has attempted to galvanize its base on the basis of the importance of judicial nominations to the Courts of Appeals and the District Courts, and the Republicans have done the same. But neither party has really succeeded in this effort. The truth is that it will take a Supreme Court vacancy to bring this issue to public consciousness. If there are two vacancies (Rehnquist and O'Connor) are the most likely, then the fate of Roe v. Wade will be on the line. This will give the Democrats considerable political cover for extreme action in the event of a Republican nuclear option, and vice versa. But at that point, the game will be being played for very high stakes indeed. Strategic Implications So what are the strategic implications? My take is that if the Republican leadership decides to go for a change in the filibuster rule, it would be in their interest to do so as soon as possible--before the Supreme Court is on the table in popular perception. Democrats would be wise to delay this move by any technique available--including an offer to faciliate confirmation of one or more of the controversial lower court nominees. Who knows what decisions are being made behind closed doors? Perhaps something dramatic will happen in the next few days or weeks. But if the status quo remains in place and there are two Supreme Court resignations in July, we are headed for interesting times. For more, see Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy. Hasen: Weighing in on the "Buying Time" Controversy Lawprof and political scientist Rick Hasen weighs in on the controversy over the "Buying Time" study re sham issue advocacy ads. This issue is important in the context of the Supreme Court's review of the three-judge District Court decision, upholding parts and striking down parts of the McCain-Feingold campaign finance legislation. Saturday, May 24, 2003
RSS Feed Updated to Blog Matrix At Chris Bertram's suggestion, I have updated my RSS feed to Blog Matrix. The link is available on the left sidebar towards the top. Manheim and Solum on the Economics of Domain Name Policy Karl Manheim (Loyola Marymount) and Lawrence Solum (Loyola Marymount and University of San Diego) have posted An Economic Analysis of Domain Name Policy on SSRN. Here is the abstract:
New Papers on the Net Here is the roundup:
Friday, May 23, 2003
Today My father, Clayton Lawrence Solum, passed away recently, and his memorial service will be held later today. I miss him more than I can say. Regular blogging will resume soon, but in the meantime, here are some recent posts of which I am especially proud:
Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Thursday, May 22, 2003
Estrada's Answer to the Roe Question I just read Toobin's New Yorker piece on the confirmation wars--time sensitive link here (thank you Howard Bashman). Here are reactions by Adam White and by Bashman. What struck me is the following passage:
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