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 06/01/2008 - 07/01/2008 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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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Thursday, September 30, 2004
Thursday Calendar
Stanford Law & Economics: Chris William Sanchirico (University of Pennsylvania Law School), Evidence, Procedure, and the Upside of Cognitive Error. Boston University Law Faculty Workshop: David Lyons. Morris on the Civil Criminal Distinction Grant H. Morris (University of San Diego School of Law)has posted Mental Disorder and the Civil/Criminal Distinction (San Diego Law Review, Vol. 41, No. 3, 2004) on SSRN. Here is the abstract:
Zacharias on Lawyers as Gatekeepers Fred C. Zacharias (University of San Diego School of Law) has posted Lawyers as Gatekeepers (San Diego Law Review, 2004) on SSRN. Here is the abstract:
Wednesday, September 29, 2004
Call for Papers: 2005 Joint Session
Wednesday Calendar
Tuesday, September 28, 2004
Goodman on Media Policy Ellen P. Goodman (Rutgers University - Law School) has posted Media Policy Out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets on SSRN. Here is the abstract:
Conference Announcement: Consequentialism at Edingurgh
Monday, September 27, 2004
Mondayh Calendar
Hofstra School of Law: Deborah Brake, University of Pittsburgh School of Law, Resistance and Retaliation: The Under-Protection and Policing of Discrimination Claimants. Columbia Law & Economics: Professor Max Schanzenbach, Northwestern University School of Law, Instrument Choice Theory and Criminal Sentencing: Strategic Judging Under the United States Sentencing Guidelines, Co-author, Emerson H. Tiller. New York University Law: Roberta Romano (Visiting from Yale), Empirical Studies of Corporate Law. Cardozo Law School: Alan Schwartz (Yale Law), A Normative Theory of Bankruptcy. Sunday, September 26, 2004
Legal Theory Calendar
Hofstra School of Law: Deborah Brake, University of Pittsburgh School of Law, Resistance and Retaliation: The Under-Protection and Policing of Discrimination Claimants. Columbia Law & Economics: Professor Max Schanzenbach, Northwestern University School of Law, Instrument Choice Theory and Criminal Sentencing: Strategic Judging Under the United States Sentencing Guidelines, Co-author, Emerson H. Tiller. New York University Law: Roberta Romano (Visiting from Yale), Empirical Studies of Corporate Law. Cardozo Law School: Alan Schwartz (Yale Law), A Normative Theory of Bankruptcy.
Stanford Law & Economics: Chris William Sanchirico (University of Pennsylvania Law School), Evidence, Procedure, and the Upside of Cognitive Error. Boston University Law Faculty Workshop: David Lyons.
Georgetown Law and Economics: Kevin Davis, New York University School of Law, The Demand for Immutable Contracts: Another Look at the Law and Economics of Contract Modifications. Legal Theory Lexicon: The Reasonable Person
Introduction Today's Legal theory Lexicon is about the "reasonable person," who used to be the "reasonable man" and is now occasionally the "reasonable woman." This topic was suggested to me by my host and friend, the eminently reasonable (and rational. The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory. A cautionary note. The word "reasonable" is used in a wide variety of legal contexts, some of which have very little to do with the reasonable person. In Antitrust law, for example, the notion of "an unreasonable restraint of trade" is crucially important, but this topic does not, at least on the surface, have anything to do with the reasonable person of torts and criminal law. The Reasonable and the Rational This is, after all, Legal Theory Blog, so I hope you will forgive me for starting at a fairly high level of abstraction. "Reasonable" and "rational" are used in many different contexts and have a variety of meanings, but when I think about the "reasonable," the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls. When the rational is defined in contradistinction to the reasonable, rational usually refers to instrumental rationality--that is, the rationality of ends and means. Given that an agent has end X, it is rational for the agent to engage in action Y, only if Y will lead to X. Instrumental rationality is relative to the ends of a particular agent, and may (but need not) consider the interests of others. Thus, it may be instrumentally rational for me to steal from you, if you have something that I want and I have good reason to believe that I won't get caught. But it may also be rational for me to help a stranger, if I happen to have the welfare of others as my end. When we contrast the reasonable with the rational, the notion of the reasonable goes beyond instrumental rationality. It may be rational for me to steal from you, but unreasonable for me to do so. Why not? Well, that is quite a question. One answer is based on the idea that the reasonable is, in some way, connected to what could be justified to others. Another idea is that the reasonable is in some way specified by that to which others would consent. So as we are thinking about the "reasonable person," it is important to distinguish her from her cousin, the "rational person." The rational person may or may not take the interests of others into account. To be a reasonable person, however, is to consider the interests or viewpoints of others--to give them their proper due. Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"? How much is enough? How much is too much? So far, we have only the general concept of the reasonable person. In order to make use of the "reasonable person" in the law, we need a particular conception of the "reasonable person"--a set of standards or criteria that will enable us to sort the reasonable actions from the unreasonable ones. Subjective and Objective Reasonableness One more preliminary distinction--much is made of the difference between subjective and objective reasonableness. For example, we might, for example, distinguish between the "reasonable person" and the "reasonable intoxicated person" or the "reasonable person with a developmental disability" or the "reasonable person with a hot temper." Usually, we call the reasonable-person standard an objective standard, signifying that the we are not taking the particular characteristics of defendants in tort or criminal actions into account when we ask whether they met the relevant standard of care. Some critics of the reasonable person standard argue that its "objectivity" is a mask for a bias that favors some groups over others. On this, see Mayo Moran's forthcoming book Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard. Learned Hand and the Reasonable Person as Cost-Benefit Analyst The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous Carroll Towing case.
The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency, and specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.) Even if the Learned Hand formula is best interpreted as employing cost-benefit analysis or the economic idea of efficiency, it does not directly follow that the purpose of the law of negligence is itself to promote the most cost-beneficial consequences. It might be, for example, that a strict liability regime (rather than a negligence regime) will produce the best consequences. There are two different questions regarding the relationship between cost-benefit analysis and the reasonable person. (1) Does the reasonable person standard employ cost-benefit analysis as the criterion for negligence?, and (2) Does cost-benefit analysis support the choice of negligence (as opposed to strict liability or no liability) as the rule governing nonintentional torts? Once the questions are separated, it is clear that they are different. It might be that the law employs a cost-benefit (Learned Hand) test as the standard of care in negligence cases, but that this approach itself is not the best when judged by cost-benefit analysis. Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others Although many scholars interpret the Learned Hand formula as an endorsement of an economic approach to the reasonable person, others reject this move. The Hand formula can also be interpreted as reflecting an argument of principle (or fairness). At a very high level of generality, we might say that the reasonable person treats others with respect. This approach to the reasonable person is roughly correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative. The reasonable person, we might say, acts so that the maxim of her action (the principle upon which she acts) could be willed as a universal law--or to be put it differently, the reasonable person treats others as ends-in-themselves and not only as means. In this vein, Ronald Dworkin has argued that the Learned Hand formula can be understood as reflecting the moral equality of persons. Virtue Jurisprudence and the Aretaic Conception of the Reasonable Person Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in particular from the idea that the focal standard for morality is the "virtuous agent," i.e. the person who posseses the moral and intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose. And the winner is . . . As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then? Conclusion If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory. Bibliography Saturday, September 25, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends The Difficulty of Tolerance : Essays in Political Philosophy by T. M. Scanlon. Scanlon is without doubt one of the fienst moral philosophers of his generation. I sometimes find his prose frustrating--he often uses baroquely complex paragraph constructons--but, for me, the effort has always been worthwhile. Here is a blurb:
Download of the Week The Download of the Week is Judges as Rulemakers by Larry Alexander and Emily L. Sherwin. Here is the abstract:
Friday, September 24, 2004
Yu on P2P Peter K. Yu (Michigan State University College of Law) has posted P2P and the Future of Private Copying (University of Colorado Law Review, Vol. 76, 2005) on SSRN. Here is the abstract:
Morgan & Zietlow on the New Parity Debate Denise C. Morgan and Rebecca E. Zietlow (New York Law School - General and University of Toledo - College of Law) have posted The New Parity Debate: Congress and Rights of Belonging on SSRN. Here is the abstract:
Shavell on the Appeals Process Steven Shavell (Harvard Law School) has posted The Appeals Process and Adjudicator Incentives. Here is the abstract:
Conference Announcement: Society for Applied Philosophy
Friday Calendar
University of Texas School of Law: Bill Sage, Columbia Law School Friday Afternoon Faculty, Medical Malpractice Reform as a Research and Policy Problem. University of Buffalo: Jim Milles, UB, Leaky Boundaries and the Decline of the Autonomous Law School Library. Oxford University Faculty of Law, Institute of European and Comparative Law: Constitutionalism and the Role of Parliaments. Thursday, September 23, 2004
Mercurio on Internet Voting as the Salvation of Democracy Bryan Christopher Mercurio (University of New South Wales - Faculty of Law) has posted Democracy in Decline: Can Internet Voting Save the Electoral Process? (John Marshall Journal of Computer & Information Law, 2004) on SSRN. Here is the abstract:
Alexander & Sherwin on Precedent Larry Alexander and Emily L. Sherwin (University of San Diego School of Law and Cornell University - School of Law) have posted Judges as Rulemakers (COMMON LAW THEORY, Douglas Edlin, ed., Cambridge University Press) on SSRN. Here is the abstract:
Zacharias on Recent Trends in Federal Regulation of Lawyers Fred C. Zacharias (University of San Diego School of Law) has posted Understanding Recent Trends in Federal Regulation of Lawyers (Professional Lawyer, Symposium Issue, 2003) on SSRN. Here is the abstract:
Prüfer on the Economics of Open Source Jens Prüfer (University of Frankfurt) has posted Why Do Developers and Firms Contribute to the Production of Open Source Software? on SSRN. Here is the abstract:
Thursday Calendar
UCLA Legal Theory Workshop: Gideon Yaffe (Philosophy, USC), The Government Beguiled Me”: The Entrapment Defense and the Problem of Private Entrapment. Yale Legal Theory Workshop: Kendall Thomas, Columbia (Law), If There is Such a Thing": Race, Sex and the Politics of Enjoyment in the Killing State. Harvard Public Law Workshop: Cass R. Sunstein, University of Chicago Law School and Political Science Department, Group Judgments: Deliberation, Statistical Means, and Information Markets. Florida State University School of Law: Edward McCaffery, University of Southern California, Shakedown at Gucci Gultch: A Tale of Death, Money & Taxes. Boston University School of Law Faculty Workshop: Gary Lawson, On Expounding Constitutions. University of Michigan Law & Economics: Vic Khanna, Michigan, Corporate Defendants and the Protections of Criminal Procedure: An Economic Analysis. Vanderbilt School of Law: Richard Nagareda (Vanderbilt) & Sam Issacharoff (Columbia), ALI Principles of the Law of Aggregate Litigation: Aggregate Treatment of Overlapping Common Issues. Vanderbilt School of Law: Sam Issacharoff, Columbia Law School, Judicial Review of Partisan Gerrymanders. Wednesday, September 22, 2004
An Intriguing Proposal Karen Selick has an intriguing idea for the reform of Canada's highest court:
Program Annoucement: The Past Present and Future in Antitrust Enforcement at the FTC
Can a Moral Subjectivist Change Her Mind? Take a look at Intra-Personal Moral Disagreement by Uriah Kriegel on Desert Landscapes. Here is a taste:
Program Announcement: Knowledge Anywhere, Anytime at Stanford
Wednesday Calendar
Northwestern University Law & Economics Colloquium: David Haddock, Northwestern University, Irrelevant Externality Angst. Australian National University: Conference, Australian Lawyers and Social Change, Canberra, 22 - 24 September 2004. Tuesday, September 21, 2004
Lecture Announcement: Perry at Notre Dame
Conference Announcement: Bellhead/Nethead: The FCC Takes On The Internet
Tuesday Calendar
Monday, September 20, 2004
Monday Calendar
Sarah Waldeck, Seton Hall Law School, An Appeal to Charity: Using Philanthropy to Reinvigorate the Estate Tax. New York University School of Law: Stephen Choi (Berkeley, visiting NYU), Topic not announced. Weekend Update On Saturday, the Download of the Week was Constitutional Amendments and the Constitutional Common Law by Adrian Vermeule and the Legal Theory Bookworm recommended Promises to Keep by William Fisher. On Sunday, the Legal Theory Lexicon topic was "Hypotheticals" and the Legal Theory Calendar is back in full swing. Rasmusen on Lemley and the Consumer Surplus Argument for IP Check out The Consumer Surplus Argument for Patent Monopolies on Rasmusen's Not Politics Weblog. Metaethics in Legal Reasoning Download Meta Ethics in Legal Reasoning by Hanno Kaiser of Law & Society Weblog. McCaffery & Siemrod on Behavioral Public Finance Edward J. McCaffery and Joel B. Slemrod (University of Southern California - Law School and University of Michigan Business School) have psoted Toward an Agenda for Behavioral Public Finance on SSRN. Here is the abstract:
Burke on Lee Alafair S. Burke (Hofstra University - School of Law) has posted BOOK REVIEW: Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom. By Cynthia Lee. (Michigan Law Review, 2005) on SSRN. Here is the abstract:
Berg on Owning Persons Jessica Wilen Berg (Case Western Reserve University - School of Law) has posted Owning Persons: The Application of Property Theory to Embryos and Fetuses on SSRN. Here is the abstract:
Sunder on Property in Personhood Madhavi Sunder (University of California, Davis - School of Law) has posted Property in Personhood (RETHINKING COMMODIFICATION: CASES AND READINGS IN LAW & CULTURE, Martha M. Ertman and Joan C. Williams, eds., 2005) on SSRN. Here is the abstract:
Sunday, September 19, 2004
Legal Theory Calendar
Sarah Waldeck, Seton Hall Law School, An Appeal to Charity: Using Philanthropy to Reinvigorate the Estate Tax. New York University School of Law: Stephen Choi (Berkeley, visiting NYU), Topic not announced.
Northwestern University Law & Economics Colloquium: David Haddock, Northwestern University, Irrelevant Externality Angst. Australian National University: Conference, Australian Lawyers and Social Change, Canberra, 22 - 24 September 2004.
UCLA Legal Theory Workshop: Gideon Yaffe (Philosophy, USC), The Government Beguiled Me”: The Entrapment Defense and the Problem of Private Entrapment. Yale Legal Theory Workshop: Kendall Thomas, Columbia (Law), If There is Such a Thing": Race, Sex and the Politics of Enjoyment in the Killing State. Harvard Public Law Workshop: Cass R. Sunstein, University of Chicago Law School and Political Science Department, Group Judgments: Deliberation, Statistical Means, and Information Markets. Florida State University School of Law: Edward McCaffery, University of Southern California, Shakedown at Gucci Gultch: A Tale of Death, Money & Taxes. Boston University School of Law Faculty Workshop: Gary Lawson, On Expounding Constitutions. University of Michigan Law & Economics: Vic Khanna, Michigan, Corporate Defendants and the Protections of Criminal Procedure: An Economic Analysis. Vanderbilt School of Law: Richard Nagareda (Vanderbilt) & Sam Issacharoff (Columbia), ALI Principles of the Law of Aggregate Litigation: Aggregate Treatment of Overlapping Common Issues. Vanderbilt School of Law: Sam Issacharoff, Columbia Law School, Judicial Review of Partisan Gerrymanders.
University of Texas School of Law: Bill Sage, Columbia Law School Friday Afternoon Faculty, Medical Malpractice Reform as a Research and Policy Problem. University of Buffalo: Jim Milles, UB, Leaky Boundaries and the Decline of the Autonomous Law School Library. Oxford University Faculty of Law, Institute of European and Comparative Law: Constitutionalism and the Role of Parliaments. Legal Theory Lexicon: Hypotheticals
What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and |