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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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Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Tuesday, November 30, 2004
Tuesday Calendar
Northwestern Employment Law: Christina Rodriguez, New York University Law School, "Language and Participation" University of Chicago, Law & Economics: Mark J. Roe, Professor of Law, Harvard Law School, Delaware's Politics. Oxford Intellectual Property Research Centre: Dr. Mira T. Sundara Rajan, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Copyright and Creative Freedom: Are Moral Rights the Future of Copyright Law? Vanderbilt School of Law: Michael Vandenbergh, "Order without Social Norms: How Personal Norm Activation can Protect the Environment". Monday, November 29, 2004
Ashcroft v. Raich
Background The issue in Raich focuses on medical use of cannabis, authorized by a voter initiative in the State of California but prohibited by federal law. In particular, the issue is whether the federal government may prohibit the possession of home-grown, intrastate, noncommercial cannabis, the use and possession of which has been authorized by state law. In a sense, this case has its roots in the New Deal era. In 1937, the United States Supreme Court began to expand Congress’s legislative power in the famous case of Jones & Laughlin Steel (the case involving the so-called “switch in time that saved nine”). A few years later, the Court decided Wickard v. Filburn, in which a federal limitation of wheat production was upheld as applied to a Mr. Filburn’s use of wheat on his own farm. The rationale of that case was that the general class of all wheat grown and consumed on farms on interstate commerce would be substantial, and therefore, Congress could regulate the wheat even though it was never sold in interstate commerce. In the 1950s through the 1980s, the conventional wisdom was that the Supreme Court had removed virtually all limits on Congress’s power under the Commerce Clause of the Constitution. So long as there was a “rational basis” or even a “conceivable rational basis” for Congress’s action, it would be within Congress’s legislative power. It was therefore a shock when the Supreme Court decided two cases in the 1990s that struck down federal statutes on the grounds that they were outside of Congress’s power to regulate interstate commerce. The first of these two cases was Lopez, in which the Supreme Court struck down the Gun Free School Zones Act, a federal statute that prohibited the possession of a gun within 1000 feet of a school. The second case was Morrison, in which the Court struck down the Violence Against Women Act. These cases limited Wickard v. Filburn to regulations that involve “economic activity,” a category that the Court has never precisely defined but which seems to apply to actions that are part of a process that leads to sale or barter. The lower courts have recently begun to apply Lopez and Morrison in “as applied” challenges to other federal statutes. Examples include: (1) a home-assembled machine gun, (2) home-made child pornography, and (3) home-grown state authorized medical cannabis. Ashcroft v. Raich gives the Supreme Court an opportunity to clarify the meaning of Lopez and Morrison and potentially, an opportunity to further limit Congress’s power or to modify its two “new federalism” decisions in a way that would make them toothless. Raich is potentially a very important case, but it also could be decided on very narrow grounds. The Justices Enter The chamber is hushed as the Justices begin to enter, beginning with Justice O’Connor. Justice Stevens waits a few moments and then speaks, announcing that the Court will take motions of admission to the Supreme Court Bar. This quaint ritual is completed with dispatch, and Justice Stevens calls Paul Clement, the Acting Solicitor General of the United States to the podium. Caveat The following notes on the oral argument are only notes. In some cases, I was unable to transcribe a question or answer. In almost every case, my notes use some phrases from the actual exchange, but also substitute my own words to convey the “sense” of what I heard as I understood it. Petitioner’s Argument Paul Clement has the demeanor of a quiet and thoughtful man—an appellate lawyer’s appellate lawyer, if you catch my drift. He begins with by arguing that “Congress has comprehensively regulated drugs through the Controlled Substances Act.” No sooner does he begin, than Justice O’Connor interrupts:
Clement: But those decisions preserved this Court’s Darby and Wickard decisions, which validate the statute here. O’Connor: But this substance was not in national market or in any intrastate market, unlike the activity at issue in those cases. Clement: It would be optimistic to believe that there will be no diversion to the national market. O’Connor: But shouldn’t we assume that California will enforce its law against the sale or transportation of marijuana for nonmedical purposes? Clement: Marijuana is a fungible product and there is a national market in this drug. O’Connor: Suppose there was a finding by the District Court that there was no diversion from the medical market to the illegal market? Clement: That would be irrelevant. O’Connor: But what would happen in my hypo? Clement: This Court in a series of cases has made it clear that it is not the conduct of the individual plaintiff, but the class of activities that Congress has chosen to regulate that is relevant.
Clement: Since the Lottery Case, it has been clear that Congress has the authority to ban a contraband from interstate commerce. Scalia: But that is not the same rationale as Wickard. You rely on Wickard to prohibit marijuana in order to reduce demand for the interstate market. Clement: The reality is that there is a 10.5 billion dollar market for marijuana. Scalia: Suppose hypothetically, there was no diversion Clement: The problems are parallel.
Clement: This is economic activity, but not commercial activity. It is like the production of wheat.
O’Connor: Wasn’t the wheat in Filburn in the interstate market? Not all of it was consumed on the farm. Clement: The wheat was consumed on the farm. O’Connor: But wasn’t other wheat from this same farm used in interstate commerce? Clement: The disposition of the particular wheat at issue in Filburn was not certain, but the case involved wheat consumed by the farmer as his own bread. Justice Kennedy: Is this a harder or easier case than Filburn, given that the substance here is illegal? Clement: Easier, because Congress can prohibit contraband. Marijuana is fungible, and Congress could conclude that any island of lawful possession is a threat to regulation of the contraband. Moreover, the legitimate use has been made available to patients in the form of a THC pill, Marinol. Ginsburg: But on this record, isn’t their evidence that the pill does not work. Would the patients have any defense if they were criminally prosecuted? Clement: The Oakland Cannabis Buyers Club case, as we read it and some members of this Court may disagree, rejects a medical necessity defense. But there is a deeper flaw in Respondent’s position: there is a mismatch between the California law and the argument that this conduct does not involve interstate commerce. California provides a defense even to those who purchase marijuana from the illegal interstate market.
Clement: Yes, under the commerce clause, there can be no as applied challenge.
Clement: In Morrison, the activity was noneconomic. O’Connor: Isn’t this activity noneconomic, because the marijuana here was grown for personal use? Clement: But Wickard v. Filburn is indistinguishable. Justice Kennedy: If we rule for the plaintiff’s wouldn’t the price for marijuana go down? Clement: Yes, the price would go down. Congress is trying to increase the price for marijuana by creating a black market. Marinal provides a safe version of THC, and that provides a hook for the application of Congress’s Commerce Clause power. The statute trumps the individual physician’s determination that raw marijuana is medically necessary. The federal regulations do not allow doctors to make such a determination. Stevens: Can we ignore a district court finding that marijuana is medically beneficial? Clement: It depends. If the context is review of the scheduling decision, then the medical evidence would be relevant. The FDA has no inherent hostility to THC; it has rescheduled marinol from the schedule 2 to schedule 3. Ginsburg: Have there been any challenges to marijuana’s position on schedule one? Clement: Yes. Efforts have been made. The Institute of Medicine Study made it clear that smoked raw marijuna has no future as a legitimate phramaceutical. Rather, we would take the raw material and synthesize the medically beneficial ingredients. This is because smoking marijuana is harmful. Souter: If the Respondent’s argument suceeds then we would have the question whether recreational use would be covered by our ruling. In deciding what the appropriate subclass might be, can’t we take into account the health benefits of medical marijuana? Clement: It would not be a good idea for the courts to second guess Congress.
Kennedy: But isn’t simple possession part of the market. Barnett: It depends on the facts. Posession of marijuana for sale or after purchase is part of the market, but possession of home grown marijuana for personal medical use is not. Kennedy: But isn’t marijuana fungible? Barnett: Fungibility is at issue in this case, but the fungibility of marijuana does not speak to the question whether possession of marijuana for personal medical use is economic activity.
Barnett: That might be essential to a broader regularoty scheme, but in this case the medical use of marijuana is isolated by state law from the interstate market. Scalia: What is the basis for narrowing the category of activity in that way? Barnett: The State of California has narrowed the class of activity by authorizing only medical cannabis. Scalia: But isn’t it true that among the users of medical cannabis are whole communes with lots of people in them smoking marijuana.
Barnett: The federal government can only reach noneconomic activity if the state’s authorization of that activity would undermine a broader scheme for the regulation of interstate commerce. The state statute isolates medical cannabis from the larger recreational market. Breyer: What if a state were to authorize use of cocaine or heroin or genetically modified tomatoes that Congress believed were harmful to health? Barnett: Congress could reach such noneconomic activity if it were essential to a broader regulatory scheme. Breyer: So you are asking us to compare the state and federal schemes and to determine whether the it is essential to the federal scheme in light of what the state scheme does. That sounds difficult for this court to do. The government is arguing in this case that large numbers of consumers will use medical marijuana, and hence that lower prices will undermine the federal scheme. We won’t know what effect the state law will have on the federal scheme. Won’t that be a mess? Barnett: There are two points in your question. (1) whether numbers of medical users will be large, and (2) whether it will be possible to identify medical users and hence distinguish them from recreational users. On the first point, the numbers are very small. The government quotes the National Organization for Marijuana Laws for their figure of 100,000. We quote the official government figures showing the number is insignificant. These people are taken out of the illegal market by the California law. Breyer: But isn’t the effect for Congress to decide? Barnett: There is a threshold issue. If this is noneconomic activity, then it can only regulated if essential to a broader regulatory scheme. Kennedy: But isn’t this just like baking bread or washing dishes, which our cases show is an economic activity? Barnett: Those can be economic activities if they are part of a commercial enterprise, but the government’s position leads to the conclusion that washing dishes at home is economic. Souter: Assume there are 100,000 users, under the California statute, can’t they buy it on the street? The statute does not differentiate between possession of homegrown and street-bought marijuana. Barnett: But medical users have every incentive not buy marijuana on the street. They can be prosecuted for buying it on the street. Souter: Couldn’t it be the case that millions of medical users would be buying marijuana on the street?
Barnett: There are two differen answers to this question. First, assuming this Court does not create an “essential to a broader regulatory scheme” exception to Lopez and Morrison, then your ruling would reach noneconomic medical use in states that have not authorized medical cannabis use. Second, if you do recognize the “essential to a broader regulatory scheme” exception, then the question is whether the lack of authorization makes a difference. California, for example, will issue ID cards that will help to isolate medical use from the interstate market. Ginsburg: But there are no ID cards now. Barnett: But the Court should trust the state to take those measures necessary so that the state authorization serves its intended purpose.
Barnett: That’s why the “essential to a broader regulatory scheme” exception must be interpreted narrowly—so that it is consistent with Morrison.
Barnett: But here, unlike Lopez where the gun was from interestate commerce, the marijuana is wholly intrastate.
Barnett: But here there is no interestate connection. Scalia: That sounds like Wickard v. Filburn, where the family was eating the wheat they grew on their own farm. Barnett: If the only activity relating to wheat on the Filburn farm was eating it at the family dinner table, the case would never have been brought. Scalia: Isn’t that exactly what Wickard v. Filburn was about? I don’t think you’ve characterized that case fairly. Barnett: The phrase “home consumed” in context meant consumed on the farm, by feeding to livestock, etc. Breyer: But wasn’t homegrown and consumed wheat still regulated, irrespective of the particular use? The question was whether it “exerted substantial economic effect”. Barnett: At that time, the Court was using the narrower definition of “commerce” that Justice Thomas has argued for. What we would call it today is “economic activity.” Filburn was engaged in economic action as part of a commercial farming enterprise. Scalia: So why isn’t this economic activity? Barnett: In Wickard v. Filburn the wheat was grown as part of a commercial enterprise and fed to livestock sold on the market. Stevens: What is your view on the effect of the state law on the interstate market? Increase prices, no effect on prices, or decrease in prices? Barnett: Can I choose trivial reduction of price? Stevens: If you reduce demand, then you will reduce prices? Wouldn’t it increase prices? Barnett: No, if you reduce demand, you reduce price. Stevens: Are you sure? Barnett: Yes. Souter: Suppose that 100,000 people are in chemotherapy in California. Then couldn’t there be 100,000 users of medical marijuana? Barnett: There could be. Souter: If there are 34 million people in California, then there could be 100,000 people in chemotherapy. Barnett: It is important to remember that the law confines medical cannabis use to the people who are sick and have a physicians recommendation. Wickard v. Filburn’s aggregation principle does not apply if the activity involved is noneconomic. Souter: But isn’t the argument that it is economic activity if it has a sizeable effect on the market? Barnett: No. The effect on the market is only relevant if it is market activity. Souter: But in Lopez wasn’t the effect on the market much more remote than the effect involved in this case? Barnett: The point is that economic activity and personal liberty are two different categories. Souter: That is not a very realistic premise. Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic. Breyer: If marijuana is medically helpful, can’t your clients go to the FDA and get it rescheduled. Then if the FDA rules against them, they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn’t I believe as a judge and an individual that it is doubtful there is a medical benefit? Is medicine by regulation better than medicine by referendum? RB: I would simply ask you to read the account of obstruction of research in the amicus brief and the Institute for Medicine report cited by both us and the government. It is true that marijuana is smoked, but that is because it saves the lives of some sick people. Kennedy: Are prescriptions limited to cases where marijuana is life saving? Barnett: It is limited to a list of illnesses. Ginsburg: I have procedural question. You’ve asked for an injunction against criminal prosecutions. Isn’t there an equitable principle against enjoining criminal prosecutions? Barnett: We’ve also asked for an injunction against the seizure of marijuana, which has occurred in this case. Such seizures put the supply at jeopordy.
Impressions Both oralists did very well. And both sides have weaknesses in their theories. Here are some specific points: Monday Calendar
NYU School of Law: Avishai Margalit (Visiting from The Hebrew University of Jerusalem) Human Dignity between Kitsch and Deification. Oxford Moral Philosophy Seminar: Serena Olsaretti, Cambridge. UCLA School of Law: Carol Bruch, UC Davis Law School, "Lawlessness in California's Family Courts". Book Announcement: Covenants without Swords
Sunday, November 28, 2004
Legal Theory Calendar
NYU School of Law: Avishai Margalit (Visiting from The Hebrew University of Jerusalem) Human Dignity between Kitsch and Deification. Oxford Moral Philosophy Seminar: Serena Olsaretti, Cambridge. UCLA School of Law: Carol Bruch, UC Davis Law School, "Lawlessness in California's Family Courts".
Northwestern Employment Law: Christina Rodriguez, New York University Law School, "Language and Participation" University of Chicago, Law & Economics: Mark J. Roe, Professor of Law, Harvard Law School, Delaware's Politics. Oxford Intellectual Property Research Centre: Dr. Mira T. Sundara Rajan, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Copyright and Creative Freedom: Are Moral Rights the Future of Copyright Law? Vanderbilt School of Law: Michael Vandenbergh, "Order without Social Norms: How Personal Norm Activation can Protect the Environment".
Oxford Centre for Criminology: James L. Nolan, Problem-Solving Courts: a Comparative Study of a Legal Transplant. Oxford Institute of European and Comparative Law in conjunction with Comparative Law Discussion Group: Professor Jacques du Plessis, Duress and Undue Influence in Mixed Legal Systems and the Principles of European Contract Law. Oxford Public International Law Discussion Group in conjunction with Financial Law Discussion Group: Lee Buchheit, The Role of the Official Sector in Sovereign Debt Workouts: the Case of Iraq. NYU Legal History: William Novak, Visiting Professor, NYU School of Law. Oxford Comparative Law Discussion Group in conjunction with Private and Commercial Law Discussion Group: Professor Jacques du Plessis, Duress and Undue Influence in Mixed Legal Systems and the Principles of European Contract Law.
Yale Legal Theory Workshop: Elizabeth Warren, Harvard (Law) "The Over-Consumption Myth and the Other Tales of Economics, Law and Morality". Stanford Law & Economics: Steven Shavell (Harvard Law School), “The Law as a Remedy for the Problem of Contractual Holdup ”. University of Michigan, Law & Economics: Oren Bar-Gill, Society of Fellows, Harvard, Pricing Legal Options: A Behavioral Perspective. Boston University, School of Law: Bob Bone. George Mason University, School of Law: Dan Lin, GMU Department of Economics Ph.D. Candidate, Asset Specificity and the Organization of the Television Industry. Oxford Public International Law Discussion Group: Sir Michael Wood KCMG, The Security Council and the Use of Force (though not Iraq 2003). Princeton Public Law Colloquium: Michael Willrich, Brandeis University, Socializing Justice: The Urban Origins of Legal Progressivism.
UCLA School of Law: David A. Sklansky, UCLA School OF law & Stephen C. Yeazell, UCLA School of Law, "Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa" Legal Theory Lexicon: Fact and Value
Hume on Deriving an Is from an Ought The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "is" from an "ought." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:
Conclusion: Therefore, the United States ought to withdraw from Iraq.
Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy. Conclusion: Therefore, the United States ought to withdraw from Iraq. G.E. Moore on the Naturalistic Fallacy The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-called naturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition. The Entanglement of Fact and Value It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what the distinction between thick and thin ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thick ethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?" Anyone who believes there is a sharp line that separates the realm of facts from the realm of values must produce an account of thick ethical terms, because such terms seem to straddle the line. Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law! If thick moral terms establish the entanglement of facts and values, that is only one step towards an adequate account of the fact-value distinction. For the purposes of law students with an interest in legal theory, awareness of the issues is probably sufficient. If you develop a deep interest in the foundations of normative jurisprudence, you will want to pursue these topics in much greater depth. Conclusion Arguments about what the law should be are normative; normative legal theory might be considered a particular branch of political and moral philosophy. So legal theorists need to be aware of the fact/value distinction. As a rule of thumb, be wary of arguments that seem to confuse facts and values or to derives oughts from ises. If you do decide to cross the line, then be aware of the criticisms that may come your way! Saturday, November 27, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends A New World Order by Anne-Marie Slaughter. Here is a brief description:
Download of the Week This week, the Download of the Week is Moral Positivism by Roger Crisp. Here is a taste from early in the paper:
Friday, November 26, 2004
Law & Politics Book Review
RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY, by Randy E. Barnett. Princeton, New Jersey: Princeton University Press, 2003. 360pp. Cloth. $32.50 / £21.50. ISBN: 0-691-11585-0. Reviewed by Ronald Kahn. OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? by James L. Gibson. New York: Russell Sage Foundation, 2004. 467pp. Hardcover. $47.50. ISBN: 0-87154-312-5. Reviewed by Ayo Ogundele. PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM, by Geoffrey R. Stone. New York: W. W. Norton & Company, 2004. 800 pp. Cloth $35.00. ISBN: 0-393-05880-8. Reviewed by Brian Pinaire. DEVIANT KNOWLEDGE: CRIMINOLOGY, POLITICS AND POLICY, by Reece Walters. Portland, OR: Willan Publishing, 2003. 256pp. Paperback. £18.99 / US $29.50. ISBN 1-84392-029-8. Hardback. £40.00 / US $59.95. ISBN 1-84392-030-1. Reviewed by Lisa L. Miller. THE MOTHER OF ALL CRIMES: HUMAN RIGHTS, CRIMINALIZATION AND THE CHILD BORN ALIVE, by Emma Cave. Burlington, VT: Ashgate Publishing Co., 2004. 172pp. Hardback. $84.95 / £47.50 ISBN 0-7546-2366-1. Reviewed by Rhonda L. Callaway. LIMITING ARBITRARY POWER: THE VAGUENESS DOCTRINE IN CANADIAN CONSTITUTIONAL LAW, by Marc Ribeiro. Vancouver: UBC Press, 2004. 256pp. Hardcover. $85.00. ISBN: 0-7748-1050-5. Paper $29.95. ISBN: 0-7748-1051-3. Reviewed by Matthew Hennigar. KNOWLEDGE POWER: INTELLECTUAL PROPERTY, INFORMATION & PRIVACY, by Renée Marlin-Bennett. Boulder and London: Lynne Rienner Publishers, 2004. 274 pp. Paperback. £16.50 / $23.50. ISBN: 1-58826-281-2. Hardcover. £45.95 / $59.95. ISBN:1-58826-256-1. Reviewed by Debora Halbert. JUDICIAL REVIEW AND COMPLIANCE WITH ADMINISTRATIVE LAW, by Simon Halliday. Oxford and Portland, Oregon: Hart Publishing, 2004. 188 pp. Hardcover $50.00 / £25.00 ISBN: 1-84113-265-9. Reviewed by Eli Paul Mazur. Thursday, November 25, 2004
Call for Papers: Emotions, Others, and the Self
Conference Announcement: Intentionality, Deliberation and Autonomy
Wednesday, November 24, 2004
Wednesday Calendar
Lewis & Clark Law School: John Parry (University of Pittsburgh School of Law) (visiting L & C), 'Just for Fun': Understanding Torture and Understanding Abu Ghraib. Northwestern University, Law & Economics: Deborah Lucas, Kellogg School of Management "Understanding and Controlling PBGC's Risk Exposure" Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia. Tuesday, November 23, 2004
Rodriguez on Straw Polls Daniel B. Rodriguez (University of San Diego School of Law) has posted Straw Polls (Journal of Contemporary Legal Issues, Vol. 12, p. 791, 2002) on SSRN. Here is the abstract:
Farmer & Pecorino on Settlement Failure Amy Farmer and Paul Pecorino (University of Arkansas at Fayetteville - Department of Economics and University of Alabama - Department of Economics, Finance and Legal Studies) have posted Preferences, Information and Settlement Failure on SSRN. Here is the abstract:
Monday, November 22, 2004
Monday Calendar
New York University, School of Law: Lewis Kornhauser, Contingency and Control: A Theory of Contracts. UCLA School of Law: Diane Amann, UCLA School of Law, "Abu Ghraib". Bell on Just Compensation Abraham Bell (Bar Ilan University - Faculty of Law) has posted Not Just Compensation on SSRN. Here is the abstract:
Drassinower on Originality in Canada Abraham Drassinower (University of Toronto - Faculty of Law) has posted Sweat of the Brow, Creativity and Authorship: On Originality in Canadian Copyright Law (University of Ottawa Law & Technology Journal, Vol. 105, No. 1 & 2, 2003-2004) on SSRN. Here is the abstract:
Event Announcement: Engemann at Stanford's CIS
Sunday, November 21, 2004
Legal Theory Calendar
New York University, School of Law: Lewis Kornhauser, Contingency and Control: A Theory of Contracts. UCLA School of Law: Diane Amann, UCLA School of Law, "Abu Ghraib".
Lewis & Clark Law School: John Parry (University of Pittsburgh School of Law) (visiting L & C), 'Just for Fun': Understanding Torture and Understanding Abu Ghraib. Northwestern University, Law & Economics: Deborah Lucas, Kellogg School of Management "Understanding and Controlling PBGC's Risk Exposure" Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia. Legal Theory Lexicon: Conduct Rules and Decision Rules The target audience of Legal Theory Lexicon is law students, especially first year law students, with an interest in legal theory. Here is a very short entry to provide a very brief break from studying:
Example? Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content. But how can we excuse ignorance of the law without altering the conduct rule?One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the intentional content is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law. Saturday, November 20, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Taking the Constitution Away from the Courts by Mark Tushnet. Here's a brief description:
Download of the Week The Download of the Week is Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law? by Matthew Adler. Here is the abstract:
Friday, November 19, 2004
Friday Calendar
University of Texas, School of Law: Mark Graber, Department of Government & Politics, University of Maryland, "Legal, Strategic or Legal Strategy: Deciding to Decide During the Civil War and Reconstruction". New School for Social Research: New School for Social Research, Martin Hollis Memorial Conference. MIT Philosophy: Peter Railton, University of Michigan, "Is there hope for a theory of objective aesthetic value?" Hamdani & Klement on Class Defense Assaf Hamdani and Alon Klement (Faculty of Law, Bar Ilan University and Interdisciplinary Center Herzliyah - Radzyner School of Law) have posted The Class Defense (California Law Review, Vol. 93, 2005) on SSRN. Here is the abstract:
Thursday, November 18, 2004
Thursday Calendar
UCLA Legal Theory Workshop: Tommie Shelby, John L. Loeb Associate Professor of the Social Sciences, Harvard University, "We Who Are Dark: The Philosophical Foundations of Black Solidarity. Chapter 3: "Black Politics After Black Power". Boston University, School of Law: Rusty Park, "Procedural Evolution in Business Arbitration: Three Case Studies". Florida State University, School of Law: J.B. Ruhl, Florida State University College of Law, "The Law and Policy of Ecosystem Services." Fordham University School of Law: Matthew Adler, Professor of Law, University of Pennsylvania Law School, "Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?". I read this paper recently. Highly recommended.. Oxford Society for Law and Religion, Law and Religion Seminars: John McInespie, Justice William Brennan And The US Supreme Court. An Introduction. Oxford Public International Law Discussion Group: Dr Nico Krisch, Global Administrative Law: Accountability, Participation and Judicial Review in Global Governance. UCLA Civil Justice Workshop: Robert L. Rabin, Stanford Law School, "The September 11th Victim Compensation Fund: A Circumscribed Response or an Auspicous Model". University of Michigan, Law & Economics: Oren Gazal, Humphrey Fellow, Michigan Screening, Plea Bargains and the Innocent Problem and Plea Bargains Only for the Guilty. UC Berkeley, GALA: Dan M. Kahan, Elizabeth K. Dollard Professor of Law, Yale Law School "Laws of Cultural Cognition and the Cultural Cognition of Law". Lipshaw on Illusions of Intention Jeffrey M. Lipshaw (Indiana University School of Law - Indianapolis) has posted The Bewitchment of Intelligence: Language and Ex Post Illusions of Intention on SSRN. Here is the abstract:
Koelman on P2P Kamiel J. Koelman (Free University of Amsterdam - Computer/Law Institute) has posted P2P Music Distribution: a Burden or a Blessing? on SSRN. Here is the abstract:
Wednesday, November 17, 2004
Conference Announcement:
Rodriguez and Weingast on the Positive Political Theory of Legislative History Daniel B. Rodriguez and Barry R. Weingast (University of San Diego School of Law and Stanford University - The Hoover Institution on War, Revolution and Peace) have posted The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and its Interpretation (University of Pennsylvania Law Review, Vol. 151, 2003) on SSRN. Here is the abstract:
Hasen on the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns Richard L. Hasen (Loyola Law School (Los Angeles)) has posted Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns (Southern California Law Review, Vol. 78, No. 4, May 2005) on SSRN. Here is the abstract:
Lee on Race & Deadly Force Cynthia Lee (The George Washington University Law School) has posted 'But I Thought He Had a Gun' - Race and Police Use of Deadly Force (Hastings Race and Poverty Law Journal, 2004) on SSRN. Here is the abstract:
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