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. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? 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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Friday, December 31, 2004
Hasen on Thomas for Chief Rick Hasen has posted Why I Don't Expect There to Be a Chief Justice Thomas on Election Law Blog. Hasen has two arguments:
Legal Theory Books of 2004 Among the new books that came to the attention of the Legal Theory Bookworm in 2004, the following were especially interesting:
Downloads of the Year Among the many articles and papers mentioned on Legal Theory Blog in 2004, here are a few that are especially recommended:
Thursday, December 30, 2004
LoPucki & Weyrauch on Legal Strategy Lynn M. LoPucki and Walter O. Weyrauch (University of California, Los Angeles - School of Law and University of Florida, Levin College of Law) have posted A Theory of Legal Strategy (Duke Law Journal, Vol. 49, No. 6, April 2000) on SSRN. Here is the abstract:
Goldman on Internet Trademark Law Eric Goldman (Marquette University - Law School) has posted Deregulating Relevancy in Internet Trademark Law (Emory Law Journal, Vol. 54, 2005). Here is the abstract:
Wednesday, December 29, 2004
New on Law & Politics Book Review
COMPARATIVE CONSTITUTIONALISM AND GOOD GOVERNANCE IN THE COMMONWEALTH: AN EASTERN AND SOUTHERN AFRICAN PERSPECTIVE, by Johan Hatchard, Muna Ndulo, and Peter Slinn. Cambridge: Cambridge University Press, 2004. 388pp. Hardback. £65.00 / $120.00. ISBN: 0-521-58464-7. Reviewed by James B. Kelly. A CRITICAL INTRODUCTION TO LAW, THIRD EDITION, by Wade Mansell, Belinda Meteyard and Alan Thomson. London: Cavendish Publishing, 2004. 224pp. Paper £18.95 / $38.00. ISBN: 1-85941-892-9. Reviewed by Trish Oberweis. BUILDING THE UK'S NEW SUPREME COURT: NATIONAL AND COMPARATIVE PERSPECTIVES, by Andrew Le Sueur (ed). New York, N.Y.: Oxford University Press, 2004. 376pp. Hardback. £50.00 / $90.00. ISBN 0-19-926462-7. Reviewed by Carla Thorson. LAW AND EMPLOYMENT: LESSONS FROM LATIN AMERICA AND THE CARIBBEAN, by James J. Heckman and Carmen Pagés (eds). Chicago: University of Chicago Press, 2004. 475pp. Cloth $95.00. ISBN: 0-226-32282-3. Reviewed by Matthew M. Taylor. Book Announcement: Soames on Reference & Description
Klick on Salvation as Solution to Free Rider Problems Jonathan Klick (Florida State University - College of Law) has posted Salvation as a Selective Incentive (International Review of Law and Economics, Forthcoming) on SSRN. Here is the abstract:
Tuesday, December 28, 2004
Onwuachi-Willig on Justice Thomas & Racial Identity Angela Onwuachi-Willig (University of California, Davis - School of Law) has posted Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity (Iowa Law Review, Vol. 90, 2005) on SSRN. Here is the abstract:
Bellia on Federal Common Law & State Courts Anthony J. Bellia Jr. (Notre Dame Law School) has posted State Courts and the Making of Federal Common Law (University of Pennsylvania Law Review, Vol. 153, 2005) on SSRN. Here is the abstract:
Monday, December 27, 2004
Posner on Morality and Public Policy Richard Posner is guest blogging over at the Leiter Reports. He has a post entitled Faith-Based Morality and Public Policy. Here's a taste:
Second, as Rawls's thought evolved, he eventually came to what he called the "wide view" of public reason. Here is how he expressed the crucial feature of the wide view:
Johnson on Race Kevin Johnson (UC Davis) has posted Roll Over Beethoven: 'A Critical Examination of Recent Writing about Race' (Texas Law Review, Vol. 82, No. 717, 2004) on SSRN. Here is the abstract:
De Soysa, Bailey, & Neumayer on Democracy, Institutional Design, and Economic Sustainability Indra De Soysa , Jennifer Bailey and Eric Neumayer (Norwegian University of Science and Technology , Norwegian University of Science and Technology - General and London School of Economics - Department of Geography and Environment) have posted Free to Squander? Democracy, Institutional Design, and Economic Sustainability, 1975-2000 on SSRN. Here is the abstract:
Brown Reviews Feelings and Emotions On Metapsychology, Sam Brown reviews an anthology entitled Feelings and Emotions: The Amsterdam Symposium by Antony S.R. Manstead, Nico H. Frijda and Agneta Fischer, Cambridge University Press, 2004. Here is a taste:
Sunday, December 26, 2004
Legal Theory Lexicon: Speech Acts
Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory. Sentences, Propositions, Meaning, and Truth There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of legal theory blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is true, because the sidebar to Legal Theory Blog actually does have a link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value. O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values. Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions. Form and Function We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance. Utterance, Locution, Illocution, Perlocution With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions: A Typology of Speech Acts One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish: Speech Act Theory and Legal Theory How can legal theorists use speech act theory? We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle. Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment. Why not? One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make speech claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action. Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed. If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things with Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below. Links Saturday, December 25, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends On The Rule of Law: History, Politics, Theory by Brian Z. Tamanaha. Here's a brief description:
Download of the Week The Download of the Week is Minimalism at War by Cass R. Sunstein. Here is the abstract:
Friday, December 24, 2004
Two Papers by Rawls Online Two well-known papers by John Rawls, Two Concepts of Rules and Justice as Fairness are now available online at HIST-ANALYTIC. I suspect most readers of LTB are familiar with these papers, at least by reputation. If not, these two papers are among the most important in modern political and moral philosophy. Very highly recommended. Confirmation Wars Department: Bush to Resubmit 20 Nominees The Los Angeles Times reports:
Lipshaw on Rational Choice Modelling of Judicial Decision Making In reply to Mialon, Rubin, & Schrag on Judicial Hierarchies & Judicial Preferences & A Comment on Rational Choice Modelling of Judicial Decision Making (posted yesterday), Jeff Lipshaw writes:
Thursday, December 23, 2004
Mialon, Rubin, & Schrag on Judicial Hierarchies & Judicial Preferences & A Comment on Rational Choice Modelling of Judicial Decision Making
The Abstract
This should come as no surprise. When judges decide cases they are engaged in a complex practical activity that responds to differential and imperfect information as well as individuated motivations and abilities. We don't expect rational choice models to predict individual behavior in detail in particular choice situations: try asking an economist to predict what you will do tomorrow! Assumptions & Reactions Back to the paper! Mialon, Rubin, & Schrag make a number of assumptions--as good modellers must. Assumptions must be simple in order to get robust models off the ground, but some of their assumptions weren't so much "simple" as "simply wrong." Here is an example or two:
However, as argued in this paper, lower level courts provide less protection to rules, and more to individuals, than do higher level courts. At any given time, lower courts would prefermore individual oriented rulings than they are allowed by the higher courts. Thus, if a higher court changes rulings to allow more attention to individuals (as did the Supreme Court after the Great Depression), then lower courts will gladly adopt these rulings. On the other hand, if the higher court has moved in the other direction, announcing more emphasis on rules (perhaps the situation that now obtains in the courts, with many Reagan-Bush judges in the Supreme Court), then we would expect the lower level courts to resist moving to this new level. Thus, for example, it should take longer to reverse the movement away from freedom of contract than it took to implement the movement in the first place. Even as speculative possibility, however, this account is highly contestable. Consider the following points: Wednesday, December 22, 2004
Westen on Consent Peter K. Westen (University of Michigan Law School) has posted Some Common Confusions About Consent in Rape Cases (Ohio State Journal of Criminal Law, Vol. 2, No. 1, pp. 332-359, Fall 2004) on SSRN. Here is the abstract:
Lerner & Tirole on the Economics of Information Sharing Josh Lerner and Jean Tirole (Harvard University - Finance Unit and University of Toulouse I - GREMAQ) have posted The Economics of Technology Sharing: Open Source and Beyond on SSRN. Here is the abstract:
Hay & Spier on Manufacturer Liability for Other-Caused Harms Bruce L. Hay and Kathryn E. Spier (Harvard Law School and Northwestern University - Kellogg School of Management) have posted Manufacturer Liability for Harms Caused by Consumers to Others on SSRN. Here is the abstract:
Tuesday, December 21, 2004
Downward Spirals Department Courtesy of Howard Bashman, I came across Supreme battle looms for Rehnquist successor by Andrew Miga in the Boston Herald. Here is a snippet:
Purdy on Ecosystem Management Bruce Pardy (Queen's University (Canada) - Faculty of Law) has posted Changing Nature: The Myth of the Inevitability of Ecosystem Management (Pace Environmental Law Review, Vol. 20, Summer 2003) on SSRN. Here is the abstract:
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