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, August 31, 2004
Lipshaw on Jurisprudence & Sarbanes-Oxley Jeffrey M. Lipshaw has posted Sarbanes-Oxley, Jurisprudence, Game Theory, Insurance and Kant: Toward a Moral Theory of Good Governance (Wayne Law Review, Forthcoming) on SSRN. Here is the abstract:
Graber on Civil Liberties in Wartime Mark Graber is guest blogging on Balkinization. Check out his Civil Liberties in "Wartime" I. Here's a taste:
Rubin on Public Choice & Tort Reform Paul H. Rubin (Emory University-Department of Economics and School of Law) has posted Public Choice and Tort Reform on SSRN. Here is the abstract:
Monday, August 30, 2004
Alstott on Justice, Children, and Families Anne Alstott (Yale Law School) has sample chapters of her book, No Exit: What Parents Owe Their Children and What Society Owes Parents, up on SSRN. Here's the abstract:
Part 3 of Tushnet on the Rehnquist Court All three posts are superb. Check out the latest.
Welcome to the Blogosphere . . . to BizFemsSpeak, including
Loren on Click Wrap Lydia Pallas Loren (Northwestern School of Law of Lewis and Clark College) has posted Slayng the Leather-Winged Demons in the Night: Reforming Copyright Owner Contracting with Clickwrap Misuse (Ohio Northern University Law Review, Vol. 30, 2004) on SSRN. Here is the abstract:
McCaffery on Fair Tax Timing Edward J. McCaffery (University of Southern California - Law School) has posted The Fair Timing of Tax (Michigan Law Review, 2004) on SSRN. Here is the abstract:
Berman on Blakely & Legal Theory Check out Doug Berman's post, Formalism meets functionality: An Ohio case study, over at Sentencing Law & Policy. Here's a taste:
Recess Appointments President Bush's recess appointments are no longer headline news, but the legal consequences continue to work themselves out. Here's a link to the joint reply brief of the plaintiffs and amicus Senator Kennedy, filed last week, on a motion to disqualify Judge Pryor from hearing an Eleventh Circuit case on the ground that his recess appointment was unconstitutional. The argument is focused on a very interesting issue--whether the recess appointments power encompasses intra-session (as opposed to inter-session) recess appointments. The DOJ's earlier brief can be found here. This is an issue I've discussed frequently with my colleague, Michael Rappaport, and I think there is considerable merit to the argument that recess appointments were originally understood as appointments to fill vacancies that occurred between and not during sessions of Congress.
Saturday, August 28, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Legal Education and the Reproduction of Hierarchy by Duncan Kennedy. Here's the blurb:
Download of the Week This Download of the Week is What Does a Fair Society Owe Children - and Their Parents? by Anne Alstott. This is one of many fine papers from the Rawls & the Law conference at Fordham last year. Here is the abstract:
Friday, August 27, 2004
Ghost Written Opinions Check out GHOST-WRITTEN OPINIONS TAKE A HIT over at Begging to Differ, commenting on the Third Circuit's decision in Bright v. Westmoreland County:
More from Tushnet on the Rehnquist Court You will definitely want to read Part II of Mark Tushnet's post on the Rehnquist Court--over at Balkinization. Here's a taste:
New from Law & Politics Book Review
CONSTITUTIONAL DELIBERATION IN CONGRESS: THE IMPACT OF JUDICIAL REVIEW IN A SEPARATED SYSTEM, by J. Mitchell Pickerill. Durham, N.C.: Duke University Press. 208pp. Paper $21.95. ISBN: 0-8223-3260-0. Hardbound $74.95. ISBN: 0-8223-3235-3. Reviewed by Albert P. Melone.
MEXICAN-AMERICANS AND THE LAW: ¡EL PUEBLO UNIDO JAMÁS SERÁ VENCIDO! by Reynaldo Anaya Valencia, Sonia R. Garcia, Henry Flores, and Jose Roberto Juarez Jr. Tucson: The University of Arizona Press, 2004. 220pp. Paper. $15.95. ISBN: 0-8165-2279-0. Reviewed by George Kiser.
THE INTRUDERS: UNREASONABLE SEARCHES AND SEIZURES FROM KING JOHN TO JOHN ASHCROFT, by Samuel Dash. Piscataway, New Jersey: Rutgers University Presses, 2004. 160pp. Hardcover. $22.95. ISBN: 0-8135-3409-7. Reviewed by Robert M. Howard.
LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM, by Duncan Kennedy. Reviewed by Mark Kessler.
LABOUR LAW IN AN ERA OF GLOBALIZATION: TRANSFORMATIVE PRACTICES AND POSSIBILITIES, by Joanne Conaghan, Michael Fischl, and Karl Klare (eds.). New York: Oxford University Press, 2004. 578pp. Paper $35.00 / £25.00. ISBN: 019927181X. Hardback. $95.00 / £60.00. ISBN: 019924247X. Reviewed by Lawrence E. Rothstein.
Newman on Social Science in the Same Sex Marriage Debate Stephen A. Newman (New York Law School) has posted The Use and Abuse of Social Science in the Same-Sex Marriage Debate (New York Law School Law Review, Forthcoming) on SSRN. Here is the abstract:
Baron on Homelessness as a Property Problem Jane B. Baron (Temple University School of Law) has posted Homelessness as a Property Problem (Urban Lawyer, Vol. 36, pp. 273-88, Spring 2004) on SSRN. Here is the abstract:
Thursday, August 26, 2004
Alstott on What a Fair Society Owes Children Anne Alstott (Yale University - Law School) has posted What Does a Fair Society Owe Children - and Their Parents? (Fordham Law Review, Vol. 72, April 2004) on SSRN. Here is the abstract:
Calvert on Borking Believers Winston E Calvert (Washington University, St. Louis - School of Law) has posted Borking Believers: Judicial Selection and the Religious Test Clause (Washington University Law Quarterly, Vol. 82, 2004) on SSRN. Here is the abstract:
Bobblehead Department I want to express my thanks to Dan Polsby (George Mason) for the Sandra Day O'Connor bobblehead! I am now in the exalted company of luminaries such as Howard Bashman.
Wednesday, August 25, 2004
New from Law & Politics Book Review
THE MYTH OF THE SACRED: THE CHARTER, THE COURTS, AND THE POLITICS OF THE CONSTITUTION IN CANADA, by Patrick James, Donald E. Abelson, and Michael Lusztig (eds.). Montreal and Kingston: McGill-Queen's University Press, 2002. 280pp. Cloth CA$75.00 / US$75.00 / £54.00. ISBN: 0-7735-2434-7. Paper CA$27.95 / US$27.95 / £21.50. ISBN: 0-7735-2435-5. Reviewed by David L. Weiden.
FRONTIERS OF FAMILY LAW, by Gareth Miller (ed.). Aldershot, England / Burlington, VT: Ashgate Publishing, 2003. 152pp. Hardback. $79.95 / £45.00. ISBN: 0-75-462274-6. Reviewed by Deborah E. Sulzbach.
FREEDOM OF COMMERCIAL EXPRESSION by Roger A. Shiner. Oxford: Oxford University Press, 2003. 380pp. Cloth $72.00 / £45.00. ISBN: 0-19-826261-2. Reviewed by Mark Tushnet.
Revised Conference Announcement: The Challenge of Philosophical Naturalism I am reposting this, because of the addition of Jerry Fodor to the lineup! This is a lot of horsepower!
Conference Announcement: Relativism
The Tax Canon Paul Caron of TaxProfBlog reminds us of Victor Fleisher's Tax Canon. Law students and new tax profs should check it out.
Tuesday, August 24, 2004
Barnett on the Foundations of Libertarianism Randy E. Barnett (Boston University School of Law) has posted The Moral Foundations of Modern Libertarianism (VARIETIES OF CONSERVATISM IN AMERICA, Peter Berkowitz, ed., Hoover Press, 2004) on SSRN. Here is the abstract:
Sterk on IP & Real P Stewart E. Sterk (Cardozo Law School) has posted What's In a Name?: The Troublesome Analogies Between Real and Intellectual Property on SSRN. Here is the abstract:
Monday, August 23, 2004
Yahoo Twist Courtesy of Michael Froomkin, here's a link to the Ninth Circuit opinion in the French Yahoo case. I've just done a quick read of the opinion, but I am not sure that I agree with Froomkin that it is a "pretty reasonable-looking decision." For readers who are not procedure mavens, the case turns on personal jurisdiction. In particular, does a United States Court have jurisdiction over the plaintiffs in the French phase of litigation over whether Yahoo must block access to Nazi paraphenalia auctions for French users of Yahoo. The plaintiffs won in France, and Yahoo sought a declaratory judgment that the French judgment could not be enforced in the United States, because it would violate the first amendment freedom of speech. The Ninth Circuit has overturned Yahoo's victory on that question by holding that the federal trial court lacked jurisdiction over the plaintiffs in the French lawsuit. The Ninth Circuit's reason turns on the interpretation of the Supreme Court's decision in Calder v. Jones--a case in which the Ninth Circuit held that a California trial court had jurisdiction over a Flordia tabloid writer and editor--on the ground that by writing a defamatory article about a Californian, they had intentionally aimed their harmful conduct at California. Yahoo's argument was that the French plaintiff's had intentionally aimed their conduct--getting a French judgment--at Yahoo in the United States. The Ninth Circuit rejected that argument, reasoning that Calder v. Jones only applies to "wrongful" conduct. Here is the crucial passage from the opinion by Judge Ferguson:
Update: C.E. Petit has more on Scrivener's Error.
Powers on Preventive Detention Over at Legal AffairsThomas F. Powers has a piece entitled When to Hold 'Em: The U.S. should detain suspected terrorists—even if it can't make a case against them in court. Here's a taste:
Posner Blogs Richard Posner is guest blogging over at Lessig Blog. Here is a roundup of the posts so far:
Update: And here is Posner's interesting proposal to use fair use to expand the public domain:
Kriegel on Ethical Internalism Over at Desert Landscapes, Uriah Kriegel has a nice post titled Ethical Internalism and the Varieties of Moral Judgment. Here's a taste:
Tushnet on the Rehnquist Court Check out Understanding the Rehnquist Court by Mark Tushnet, guest blogging on Balkinization! Here is a taste:
Conference Announcement: The Challenge of Philosophical Naturalism I'm very excited by this announcement!
Rai on Open and Collaborative Research Arti K. Rai (Duke University School of Law) has posted Open and Collaborative Research: A New Model for Biomedicine (INTELLECTUAL PROPERTY RIGHTS IN FRONTIER INDUSTRIES: SOFTWARE AND BIOTECH, Robert Hahn, ed., AEI-Brookings Press, Forthcoming) on SSRN. Here is the abstract:
Opderbeck on Open Source & Biotech David W. Opderbeck (Seton Hall University - School of Law) has posted The Penguin's Genome, or Coase and Open Source Biotechnology on SSRN. Here is the abstract:
Dauvergne on Sovereignty, Migration, and the Rule of Law Catherine Dauvergne (University of British Columbia - Faculty of Law) has posted Sovereignty, Migration and the Rule of Law in Global Times (Modern Law Review, Vol. 67, pp. 588-615, July 2004) on SSRN. Here is the abstract:
McAdams & Nadler Test for Expressive Effects in a Hawk/Dove Game Richard H. McAdams and Janice Nadler (University of Illinois at Urbana-Champaign - College of Law and Northwestern University School of Law) have posted A Third Model of Legal Compliance: Testing for Expressive Effects in a Hawk/Dove Game on SSRN. Here is the abstract:
Saturday, August 21, 2004
Legal Theory Bookworm This week, I am recommending an old favorite, Introduction to Legal Reasoning by E.H. Levi. Along with Bramble Bush by Karl Lellewellyn, Levi's little book is one of the most recommended introductions for first year law students. There is much to criticize in Levi's book, but for its intended audience--first year law students--it provides help and insight.
Download of the Week This week, the Download of the Week is Federalism vs. States' Rights : A Defense of Judicial Review in a Federal System by John McGinnis (Northwestern) & Ilya Somin (George Mason). Here is the abstract:
Friday, August 20, 2004
Updates to Entry Level Hiring I've posted some additional updates to the entry level hiring reports. Thanks again to everyone whose helped!
Federalism Check out Jonathan Adler's Suicidal Folly: Disgust needn’t kill federalism at NRO & Law nerd alert! Federalism debate sweeping blogosphere! on Southern Appeal. Steve Dillard, pace Adler, argues "until Wickard is overruled, I am all for Congress using its judicially expanded Commerce 'power' to shut [physician assisted suicide] down." Adler responds, "Certainly Congress could get away with using its commerce power to restrict doctor-assisted suicide in Oregon and elsewhere. Yet if one believes that such use of the Commerce Clause is unconstitutional -- Supreme Court opinions to the contrary notwithstanding -- I do not believe one should advocate the opportunistic use of such power to achieve desirable policy goals."
Ghosh on the Bargain Metaphor for Patent Policy Shubha Ghosh (State University of New York - Law School) has posted Patents and the Regulatory State: Rethinking the Patent Bargain Metaphor after Eldred on SSRN. Here is the abstract:
Gerhart on Palsgram Peter M. Gerhart (Case Western Reserve University - School of Law) has posted Resuscitating Palsgraf Although derided by many, Justice Cardozo's opinion in Palsgraf shows his deep understanding of the normative content of negligence law. An actor who has not created a risk (the risk of explosion) may not be held responsible for harm coming from the risk unless the actor is connected in some way with the risk; that is true even if the actor's negligent conduct contributes to an explosion. Proof that the railroad took an unreasonable risk that a package might fall is not, by itself, evidence that the railroad created an unreasonable risk of an explosion, for the railroad's risk-taking does not tell us how the railroad would have acted had it known of the risk of explosion. Because all agree that the railroad was not culpable in failing to know what was in the package, the railroad breached no standard of care with respect to the risk of explosion. Not only is this an important substantive statement about what negligence law requires, but Cardozo's opinion also demonstrates that both duty and proximate cause must themselves relate to the normative content of the concept of unreasonable risk-taking.
Yahya on the Benefit of the Bargain Theory for Product Liability Moin A. Yahya (University of Alberta - Faculty of Law) has posted Why the Benefit of the Bargain Theory for Product Liability is Bad Law and Bad Economics? on SSRN. Here is the abstract:
Thursday, August 19, 2004
Tushnet on Balkinization Don't miss the always intelligent and learned Mark Tushnet guest blogging on Balinization. His first post is Antonin Scalia as Felix Frankfurter. Here is a taste:
McGinnis & Somin on Federalism & States' Rights John McGinnis (Northwestern) & Ilya Somin (George Mason) have posted Federalism vs. States' Rights : A Defense of Judicial Review in a Federal System on SSRN. Here is the abstract:
New from Law & Politics Book Review
INHERITANCE LAW AND THE EVOLVING FAMILY, by Ralph C. Brashier. Philadelphia: Temple University Press, 2004. 272pp. Cloth $69.50. ISBN: 1-59213-221-9. Paper $24.95. ISBN: 1-59213-222-7. Reviewed by Rosalie R. Young.
PRESIDENTIAL WAR POWER (Second Edition, Revised), by Louis Fisher. Lawrence, Kansas: University Press of Kansas, 2004. 304pp. Cloth $35.00. ISBN: 0-7006-1332-3. Paper $16.95. ISBN: 0-7006-0333-1. Reviewed by David Dehnel.
GUARDIANS OF THE MORAL ORDER: THE LEGAL PHILOSOPHY OF THE SUPREME COURT, 1860-1910, by Mark Warren Bailey. DeKalb, IL: Northern Illinois University Press, 2004. 305pp. Cloth $45.00. ISBN 0-87580-320-2. Reviewed by Jennifer Faust.
LANGUAGE RIGHTS AND POLITICAL THEORY, by Will Kymlicka and Alan Patten (eds.). Oxford: Oxford University Press, 2003. 368pp. Hardback. £57.50 / $85.00. ISBN: 019926290X. Paperback. £20.00 / $24.95. ISBN: 0199262918. Reviewed by Rory O'Connell.
Call for Papers: Virtue Epistemology
Priester on Hamdi & Habeas Benjamin J. Priester (Florida State University - College of Law) has posted Return of the Great Writ: Judicial Review, Due Process, and the Detention of Alleged Terrorists as Enemy Combatants. Here is the abstract:
Wednesday, August 18, 2004
ACS on Enemy Combatants Check out the American Constitution Society Blog for "Enemy Combatants," The Constitution and the Administration's "War on Terror" by Kate Martin and Joe Onek. Here's a taste:
Tuesday, August 17, 2004
Nimmer on the DMCA & Free Speech Raymond T. Nimmer (University of Houston - Law Center) has posted First Amendment Speech and The Digital Millennium Copyright Act: A Proper Marriage (COPYRIGHT AND FREE SPEECH - COMPARATIVE AND INTERNATIONAL ANALYSES, Jonathan Griffiths, Uma Suthersanen, eds., Oxford University Press, February 2005). Here is the abstract:
Berman on the Commerce Clause Mitchell N. Berman (University of Texas Law School) has posted Guillen and Gullibility: Piercing the Surface of Commerce Clause Doctrine (Iowa Law Review, Vol. 89, p. 1487, 2004). Here is the abstract:
Monday, August 16, 2004
Bernstein on Genetic Testing and the Internet Gaia Bernstein (Seton Hall University - School of Law) has posted Accommodating Technological Innovation: Identity, Genetic Testing and the Internet (Vanderbilt Law Review, Vol. 57, p. 963, 2004) on SSRN. Here is the abstract: