Legal Theory Blog
All the theory that fits!
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.
Tuesday, September 30, 2003
Weatherall on Geographic Indicators & Trademark Kim Weatherall has a good post on geographic indicators and trademark law. Bologna, anyone? And while you're at it, scroll down for Weatherall's post on dilution theory.
McCarthy on Trademark Thomas McCarthy (University of San Francisco) presents Recent Developments in Trade Mark Law in the United States and Australia today at the University Sydney.
Zittrain on the Effect of RIAA Mistakes I just caught up with the first case in which the RIAA misidentified a defendant in their litigation offensive against P2P. Here is a link to the Boston Globe story, which quotes Jonathan Zittrain as follows:
Ayers on Do Not Call Lists Ian Ayers (Yale Law School) has a good op/ed in the New York Times, suggesting compensated listening as solution to the Do Not Call imbroglio.
ACLU v. RIAA Courtesy of Will Baude of Crescat Sententia, this news:
Smith Turns off the Lights Steven Smith (University of San Diego - School of Law) has posted Recovering (From) Enlightenment? on SSRN. Here is the abstract:
Wendel on Law and Disagreement W. Bradley Wendel (Washington and Lee Law School) has posted Civil Obedience (forthcoming Columbia Law Review) on SSRN. This paper promises to be very interesting. Here is the abstract:
Wright on Legal Responsibility Richard Wright (Illinois Institute of Technology - Chicago-Kent College of Law) posts The Grounds and Extent of Legal Responsibility (forthcoming in the San Diego Law Review, Vol. 41) on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Monday, September 29, 2003
Kontorovich on Liability Rules for Constitutional Rights at Chicago Eugene Kontorovich (George Mason) is workshopping Liability Rules for Constitutional Rights: The Case of Mass Detentions on at the University of Chicago today. It should be up on SSRN soon, but in the meantime, here is an abstract:
Moving Day & Interview with Hasen Crescat Sentential has a new URL: http://www.crescatsententia.org/. And in other sentential news, the crescat interview with election law superblogger Rick Hasen is now available at this link.
Belated Welcome to the Blogosphere . . . to IPKat (Jeremy Phillips and Ilanah Simon), a UK Intellectual Property blog. Check out the IPKant book of the Month.
Internet Governance: The IETF Michael Froomkin points to recent developments in Internet governance in this post on the Internet Engineering Task Force.
Weekend Wrap Up On Saturday, the Download of the Week was a new paper from Howard Gillman, and the Legal Theory Bookworm recommended a recent book by Farber and Sherry. On Sunday, the Legal Theory Lexicon's topic was Hypotheticals, and the Legal Theory Calendar previewed the talks, workshops, colloquia, and other events for the week.
Benhabib at Chicago At the University of Chicago Political Theory Workshop, Seyla Benhabib (Yale University) presents The Right to Have Rights, Discussant: Jacob Schiff. Here is a taste:
Schwarzschild on Direct Demoracy Maimon Schwarzschild (University of San Diego School of Law) has posted Voter Initiatives and American Federalism: Putting Direct Democracy in Its Place (forthcoming Journal of Contemporary Legal Issues) on SSRN. Don't miss this! Here is the abstract:
Four from Zacharias Fred Zacharias (University of San Diego) has posted four new papers on SSRN:
New from Alexander in ConComm Lawrence Alexander (University of San Diego School of Law) has psoted Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury v. Madison and the Case for Judicial Supremacy (forthcoming in Constitutional Commentary). Here is the abstract:
Ramsey on the Executive War Power Michael Ramsey (University of San Diego School of Law) has posted Presidential Declarations of War (forthcoming UC Davis Law Review) on SSRN. Here is the abstract:
Fodor at Berkeley At U.C. Berekely, Jerry Fodor (Rutgers University) is the Townsend Visitor through October 2.
New Papers on the Net Here is today's roundup:
What Do Unions Do ... to Voting? Richard Freeman National Bureau of Economic Research (NBER)
Trade Wars: The Exaggerated Impact of Trade in Economic Debate Richard Freeman National Bureau of Economic Research (NBER)
The Role of Warnings in Regulation: Keeping Control with Less Punishment Karine Nyborg and Kjetil Telle Ragnar Frisch Centre for Economic Research - General and Statistics Norway - Research Department
Corporate Governance, Corporate Ownership, and the Role of Institutional Investors: A Global Perspective Stuart Gillan and Laura Starks University of Delaware - Center for Corporate Governance and University of Texas at Austin - Red McCombs School of Business
The X Tax in the World Economy David Bradford Princeton University, Woodrow Wilson School
Combating Corruptions in International Business Transactions Marco Celentani, Juan Ganuza and Jose Peydro-Alcalde Universidad Carlos III de Madrid - Department of Economics , Universitat Pompeu Fabra - Department of Business and Economics and INSEAD
Welcome to the Blogosphere . . . to Civil Procedure. My favorite course!
Sunday, September 28, 2003
Bainbridge on Conservatives in Academia Stephen Bainbridge (UCLA) has a very nice post entitled Conservatives in academia on his excellent blog ProfessorBainbridge.com. And check out this by Tom Smith and this by Michael Rappaport on The Right Coast.
Legal Theory Lexicon: Hypotheticals
What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from hypotithenai, "to put under."
In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching.
Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Alice agreed to pay Ben $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following:
The Purposes of Hypotheticals Why do law professors use hypotheticals?
"Beware the hypothetical, my son. The laws that catch, the facts that bite." Hypos can be fun, but many law students don't have a good time, when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialog is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game.
Lesson Number One: Fight the hypothetical, lose the war! The first and most important lesson to learn about hypotheticals is that you can't get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the "hypothesis." One way to do this is to fight the facts. "That wouldn't happen." Or "In the real world, it would happen differently." Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, "O.K., but for the sake of argument, assume these facts." At the best, you get another version of the same hypo that works around your factual objection." As a general rule, don't fight the facts.
Lesson Number Two: Watch for Slippery Slopes Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule." When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon.
Lesson Number Three: Watch Out for Cold Rules and Hot Facts This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. "Starving babies" are a common device. But should Alice have to pay Ben damages if Alice has a "starving baby!" Of course not, you say to yourself, but in fact whether or not Alice's baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense." Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of "necessity." Obviously, these two strategies can be combined: "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of "necessity" to actions for breach of contract."
Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:
Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn't. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided--"novel questions" where not precedent or rule is binding; (2) Rules sometimes have "gaps," places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a "hard case." When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:
(2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.
(3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.
Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren't punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as "intuition pumps." That is, the wild case is constructed so as to generate a particular reaction--an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating--they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work--pumping the intuition. When you are questioned about a wild case, you should simply give your reaction--your gut instinct. But it is also fare to qualify your answer: "My answer is yes, but this case is so wild that I really don't feel very sure about my intuitions." Wild cases are the dessert of law school.
Legal Theory Calendar
At U.C. Berekely, Jerry Fodor (Rutgers University) is the Townsend Visitor through October 2.
At the NYU Colloquium in Legal, Political and Social Philosophy (Dworkin and Nage), Sharon Street (NYU Philosophy) presents Excerpts from: Evolution and the Nature of Reasons
At UCLA's Legal Theory Workshop, Christopher Kutz (U.C. Berkeley) presents Justice in Reparation: The Problem of Land and the Value of Cheap Talk.
At the University of Michigan Law and Economics series, Mark Grady (George Mason) presents Liability Failure.
At the University of Texas, Constitutional Theory Seminar, Donald Horowitz (Duke) presents Secession as a Problem of Political and Constitutional Theory.
At Florida State, Richard Hynes (William & Mary) presents Bankruptcy's Role in Debt Relief.
At George Mason, Bart Wilson (ICES, George Mason University) presents Experimental Gasoline Markets.
At the University of Hertfordshire Centre for Normativity and Narrative (London), Anthony Rudd (St Olaf College, Minnesota & Hertfordshire) presents Narrative, Substance and Personal Identity. (From the London Fixtures List)
At the Society for Applied Philosophy in London, Jonathan Ree & Andrew Edgar (University of Wales, Cardiff) present Paths to Utopia: Philosophical Republics in the 21st Society, Chair: Richard Ashcroft (Imperial College, London). (From the London Fixtures List)
At the University of Texas Faculty Colloquium, Fionnuala Ni Aolain (University of Ulster) presents The Paradox of Transition in Conflicted Democracies.
Jennifer Mnookin is presenting at UCLA, but I don't have a title.
Saturday, September 27, 2003
Legal Theory Bookworm This week the legal theory bookworm recommends Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations by Daniel Farber (Minnesota and U.C. Berkeley) and Suzanna Sherry (Vanderbilt). (Another link here.) Farber and Sherry's book provides a wonderfully compact and elegant statement of the case for a pragmatic approach to constitutional interpretation. They begin with a list of eight propositions, which we could summarize as follows:
Desperately Seeking Certainty provides a wonderful tour of contemporary constitutional theory. Highly recommended!
Download of the Week The Download of the Week is Howard Gillman's Constitutional Law As Partisan Entrenchment. Gillman describes the aim of his paper as follows:
Lists Department Courtesy of the Leiter Reports, The Philosopher’s Annual has announced its list of the top ten philosophy articles of 2002. Here are three that are likely to be of some interest to legal theorists:
Friday, September 26, 2003
Preview of Coming Attractions Tomorrow, the Legal Theory Bookworm recommends a contemporary book of interest to legal theorists, and, as usual, the Download of the Week is unveiled. On Sunday, the Legal Theory Calendar previews colloquia, workshops, and conferences for next week, and the Legal Theory Lexicon does the unthinkable and provides a guide for law students on hypotheticals (everything you always wanted to know, but your professors were afraid to tell you).
Screpanti on Choice, Freedom, and Redistribution Ernesto Screpanti (Università degli Studi di Siena - Dipartimento di Economia Politica) has posted Choice Freedom and Redistribution Policies on SSRN. Here is the abstract:
Murphy at Texas Today at Brian Leiter's Law and Philosophy Program at the University of Texas, Mark Murphy (Philosophy, Georgetown University) participates in a 3-hour lunchtime workshop with LPP faculty and students on chapters of his book manuscript on Natural Law in Jurisprudence and Politics. He will also give a paper in the Philosophy Department in the afternoon on "Intention, Foresight, and Success."
Spaulding at the University of San Diego Norman Spaulding (U.C. Berkeley) presents Constitution as Counter-Monument: Federalism, Reconstruction and the Problem of Collective Memory.
Froomkin and Bradley on Virtual Worlds Michael Froomkin and Caroline Bradley have a paper entitled Virtual Worlds, Real Rules. Here a taste:
Hoffman and Wenger on Nullificatory Juries David Hoffman and Kaimipono Wenger (Cravath, Swaine & Moore LLP and Cravath, Swaine & Moore LLP) have posted Nullificatory Juries on SSRN. Here is the abstract:
Foucault and the Gypsies Dave Cowan and Delia Lomax (University of Bristol - Department of Law and Heriot-Watt University - School of the Built Environment) have posted Policing Unauthorized Camping (forthcoming Journal of Law and Society on SSRN. Here is the abstract:
Miles on Threats to Law Library Autonomy At the SUNY Buffalo, Jim Milles presents Leaky Boundaries and the Decline of the Autonomous Law School Library. Horrors!
New Papers on the Net Here is today's roundup: