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 03/01/2011 - 04/01/2011 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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Monday, February 28, 2005
Monday Calendar
Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia. Hofstra University School of Law: Myriam Gilles, Cardozo Law School, “Opting Out of Class Action Liability”. Loyola Marymount University, Loyola Law School: Douglas Berman, Professor of Law, Ohio State University Moritz College of Law, "Booker: The Future of the U.S. Sentencing Guidlines". NYU Law: Liam Murphy, Concepts of Law. Vanderbilt Law & Economics: Jennifer Arlen, New York University, "Private Contractual Alternatives to Malpractice Liability". Vanderbilt Charney Distinguished Lecture Series: William Schabas, National University of Ireland, Galway, "Genocide and International Law: Darfur, Srebenica and Cambodia". Conference Announcement: European Congress for Analytic Philosophy
Conference Announcement: Self-Knowledge
Sunday, February 27, 2005
Legal Theory Calendar
Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia. Hofstra University School of Law: Myriam Gilles, Cardozo Law School, “Opting Out of Class Action Liability”. Loyola Marymount University, Loyola Law School: Douglas Berman, Professor of Law, Ohio State University Moritz College of Law, "Booker: The Future of the U.S. Sentencing Guidlines". NYU Law: Liam Murphy, Concepts of Law. Vanderbilt Law & Economics: Jennifer Arlen, New York University, "Private Contractual Alternatives to Malpractice Liability". Vanderbilt Charney Distinguished Lecture Series: William Schabas, National University of Ireland, Galway, "Genocide and International Law: Darfur, Srebenica and Cambodia".
Northwestern Empirical Legal Studies: Margaret Brinig, William G. Hammond Distinguished Professor of Law, University of Iowa, "The Effect of Change in Child Custody Standards". Oxford Centre for Socio-Legal Studies: Richard Whitecross, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Citizenship and Belonging: Law and Identity in a Himalayan State. Oxford Intellectual Property Research Centre: Dr Christine Greenhalgh & Dr Mark Rogers, Intellectual Property in the New Millennium: The Use of Intellectual Property by the UK Financial Services Sector.
University College, London, Colloquium in Legal and Social Philosophy: Professor Seana Shiffrin (UCLA), 'What's wrong with compelled association?'. Here is a taste:
Florida State University School of Law: Nancy Staudt, Washington University-St. Louis. George Mason University School of Law: Iliana Ilieva, GMU School of Law Levy Fellow, Law and Economics in Mutualfundland (with D. Bruce Johnsen). George Washington University IP Series: David Nimmer, "Codifying Copyright Comprehensibly". Georgetown Workshop on Transnational Legal Issues: Laurel Terry, Dickinson Law School "WTO, GATS, and the Regulation of Transnational Law Practice". Yale Legal Theory Workshop: Walter Benn Michaels, University of Illinois (English).
Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law: Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : Christopher Tung (Hong Kong), Climate Change Action and Sustainable Development in China. Georgetown International Legal Theory Colloquium: Rosa Ehrenreich Brooks, U. of Virginia School of Law, "Failed States, or The State as Failure?". Legal Theory Lexicon: Textualism
Three Levels of Interpretive Theory I find it helpful to separate out three different “levels” at which theories of legal interpretation can operate: The Plain Meaning of the Text Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.). But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type. An Excursion into Speakers Meaning and Sentence Meaning I may be making a mistake, but I think that textualism is illuminated by an excursion into what is sometimes called speech act theory, and in particular, by looking at the concepts of “speaker’s meaning” and “sentence meaning.” So here goes:
So when I blog, I know that the readers of blogs assign a particular meaning to the word “post,” and I also know that my readers know that I know that they know this blogospheric convention. So I can use the term “post” to refer to blog entries with confidence that my readers will understand what I mean. On the other hand, if I were writing about blogging for an audience that had never encountered a blog, I would probably need to define the term “post,” before I used it, and if I used the term “post” without defining it, then my audience would likely believe I was referring to mail and not blog entries. In other words, when someone speaks or writes for a particular audience on a particular occasion, the speaker or author can take into account what she knows about the audience, what the audience knows about her, but only insofar as the speaker knows that the audience knows what the speaker knows about the audience. Speaker’s meaning can be distinguished from sentence meaning. Sentence meaning is the meaning that an utterance has when the audience is unaware of the speaker’s intentions. When we identify sentence meaning, it is as if we were imaging a sot of generic speaker, who uttered the sentence in a generic context. Or putting this a bit differently, sentence meaning is the meaning we would assign sentences when we know that the speaker can’t assume that we are aware of special conventions about meaning. Legal Texts, Sentence Meaning & Speaker’s Meaning Legal texts are sometimes intended for a timeless, generic readership. The authors of legislation, for example, know that many different actors (judges, lawyers, administrative officials, and ordinary citizens) will read the statute for an extended period of time in a variety of different conditions. Many of these readers will not be able to afford access to analysis of the legislative history of the statute; they will simply read the statute itself. Of course, they will know that the text they are reading is a statute, and they will therefore have a fair amount of knowledge about the likely intended meaning of various terms and phrases. Moreover, the legislature knows that the readers of statutes will have this knowledge. So it might make sense to assume that the speaker’s meaning that should be assigned to a legal text is a special version of the sentence meaning of the text, e.g. legal sentence meaning. Lawyers who counsel citizens and organizations do have the training to analyze legislative history, but can more easily and cheaply discern the plain meaning of a statute than some special meaning that only becomes clear once the legislative history is consulted. Moreover, analysis of legislative history can be quite complex, because some sources of legislative history (e.g. the statements of floor managers) are much more reliable than others (e.g. the statements of opponents of a bill or of the author of a bill). Because of the complexity of statutory interpretation, lawyers are likely to disagree about the meaning of legislative history and to err when predicting how a court will interpret legislative history. The same difficulties that afflict lawyers are plague judges. Moreover, most legal research done for federal judges is done by very young lawyers serving as law clerks. This group usually lacks experience in researching legislative history, and their performance is likely to be highly variable. Moreover, because legislative history will frequently contain many conflicting, ambiguous, and vague statements, it is possible that legislative history is easily subject to manipulation, giving judges the opportunity to support their own policy preferences with evidence of the “intentions of the legislature.” Textualism as a Practical Methodology Even if textualism does not provide the best ideal theory of legal interpretation, it might be the case that textualism does provide the best practical method of interpretation given the capacities of real world judges and officials. Suppose that we want to interpret statutes to achieve the purposes of the legislature. At first blush, it might seem that the best way to do this would be to have courts and officials employ an intentionalist methodology, combing the legislative record for evidence of legislative intent. But as a practical matter, it may turn out that judges aren’t very good at doing this. So it might be the case that real-world judges are more likely to implement legislative purposes by employing a fairly simple plain-meaning approach as methodology for statutory interpretation. And to the extent that legislators know that judges will employ this approach, legislators could draft with the expectation that judges will use a plain-meaning methodology, which presumably would lead to even closer fit between the plain meaning and the achievement of legislative purpose. Conclusion “Textualism” is just one of many approaches to the theory of legal interpretation, but it is an especially good place to begin thinking about issues of interpretation in law. One of the very best ways to become a sophisticated thinker about these issues is to take a really good course in statutory interpretation. Not so long ago, statutory interpretation was considered a dead field, but today there is a tremendous flowering of interesting and exciting scholarship about the interpretation of statutes. I hope that this post has whetted your appetite! Saturday, February 26, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Agency And Answerability: Selected Essays by Gary Watson. Here is a description:
Download of the Week The Download of the Week is Legal Positivism Since H.L.A. Hart by Jules Coleman, . Here is a taste:
Friday, February 25, 2005
Friday Calendar
UCLA School of Law: Mark Lemley, Stanford University School of Law, "Property, Intellectual Property, and Free Riding". University of Texas, School of Law: Ronald J. Mann, UT Law, & Seth Belzley, UT Law student, The Promise of Internet Intermediary Liability. University of Texas, School of Law: Thomas Kohler, Visiting Professor at UT from Boston College, "The Notion of Solidarity and the Secret History of American Labor Law". Oxford Centre for Competition Law & Policy: Sir John Vickers (Chairman, OFT), The abuse of market power. Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law, Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term: Mr. Kent Nnadozie (Nigeria), An International Regime on Access to Biodiversity and Sharing of its Benefits. Bridgeman on Corrective Justice Accounts of Contract Curtis Bridgeman (Florida State University - College of Law) has posted Strict Liability and the Fault Standard in Corrective Justice Accounts of Contract on SSRN. Here is the abstract:
Wendel on Professionalism as Interpretation W. Bradley Wendel (Cornell Law School) has posted Professionalism as Interpretation (Northwestern University Law Review, Vol. 3, p. 99, Spring 2005) on SSRN. Here is the abstract:
Fletcher on Tribal Employment Separation Matthew L.M. Fletcher (University of North Dakota - School of Law) has posted Tribal Employment Separation: Tribal Law Enigma, Tribal Government Paradox, and Tribal Court Conundrum (University of Michigan Journal of Law Reform, Vol. 38, 2005) on SSRN. Here is the abstract:
Thursday, February 24, 2005
Welcome to the Blogosphere . . . to Opinio Juris, a weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics, with Chris Borgen, Julian Ku, and Peggy McGuinness. Bridgeman on Cardozo & Formalism Curtis Bridgeman (Florida State University - College of Law) has posted Allegheny College Revisited: Cardozo, Consideration, and Formalism in Context on SSRN. Here is the abstract:
Thursday Calendar
UCLA Legal Theory Seminar: Jules Coleman, Legal Positivism Since H.L.A. Hart. Here is a taste:
Northwestern Tax Series: Karen Burke, Warren Distinguished Professor of Law, University of San Diego, "Black & Decker's Contingent Liability Shelter: 'A Thing of Grace and Beauty'?". Oxford Public International Law Discussion Group: Robert McCorquodale, The international community and international law-making: towards an inclusive international legal system. Georgetown, Transnational Legal Issues: Bill Bratton, Comparative Corporate Governance. Boston University School of Law: Geoff Miller, NYU, TBA. George Mason University School of Law: Charles Keckler, GMU School of Law Visiting Assistant Professor, Life v. Death: Why Capital Punishment Should Marginally Deter. Conference Announcement: The Constitution in 2020 at Yale
Wednesday, February 23, 2005
Wednesday Calendar
NYU Legal History: Deborah Malamud, An-Bryce Professor of Law, NYU School of Law. Nuffield College, Oxford: Antanas Mockus, Culture and Law Enforcement. UCLA Legal History: Ariela Dubler, Columbia, Immoral Purposes: The Genus of Illicit Sex and the Marriage Cure. Conference Announcement: Robert Merrihew Adams
Schauer on the Practical Dimension of Choosing Our Concept of Law Frederick Schauer (Harvard University - John F. Kennedy School of Government) has posted The Social Constructioon of the Concept of Law: A Reply to Julie Dickson (Oxford Journal of Legal Studies, Vol. 25, 2005) on SSRN. Here is the abstract:
Tuesday, February 22, 2005
Tuesday Calendar
Georgetown Law: Gowri Ramachandran, "Intersectionals and Assimilation: Blurring the Line Between 'Reasonable' Identity Performance Demands and Irrational Discrimination". Lewis & Clark Law: Lydia Loren The Fallacy of the Extra Element. Oxford Taxation Law: Ian Menzies-Conacher, Group Taxation Director, Barclays plc and James Bullock, tax litigation partner, McGrigors, Implications of the judgments of the House of Lords in the Barclays Mercantile and Scottish Provident cases. Oxford Intellectual Property Research Centre: Rainer Moufang, Intellectual Property in the New Millennium: Recent Developments in the Case Law of the European Patent Office Boards of Appeal. Oxford Centre for Socio-Legal Studies: Roger Cotterrell, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Should "Culture" Become a Legal Concept? University of Texas School of Law: John Dzienkowski, Personal Conflicts of Interest. Widener Law School (Delaware campus): Seth Barrett Tillman, Original Understanding of the Orders, Resolutions and Votes Clause -- What James Madison Failed to Learn from the Westminster Parliamentary Tradition--based on A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned & The Domain of Constitutional Delegations under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson. Rossi on a Political Process Bargaining Approach to Antitrust Federalism Jim Rossi (Florida State University - College of Law) has posted Political Bargaining and Judicial Intervention in Constitutional and Antitrust Federalism on SSRN. Here is the abstract:
Charles on Hasen Guy-Uriel E. Charles (University of Minnesota School of Law) has posted Judging the Law of Politics (Michigan Law Review, March 2005) on SSRN. Here is the abstract:
Lipshaw on a Theory of Promise & Contract Jeffrey M. Lipshaw (Indiana University School of Law - Indianapolis) has posted Duty and Consequence: A Non-Conflating Theory of Promise and Contract on SSRN. Here is the abstract:
Berman on the Historical Foundation of Law Harold Berman (Emory University - School of Law) has posted The Historical Foundation of Law (Emory Law Journal, Vol. 54, 2005) on SSRN. Here is the abstract:
Monday, February 21, 2005
Conference Announcement: Action and Values
Monday Calendar
Oxford Moral Philosophy Seminar: Folke Tersman, Stockholm. Stanford The Center for Internet and Society and the Stanford Law and Technology Association: Elizabeth Townsend, CIS Non-residential Fellow, Assessing the Arrival of the Unpublished Public Domain in the Internet Age. Oxford Environmental Law Discussion Group: Dr Liz Fisher & Dr Lucia Zedner, Risk Assessment: Perspectives From Environmental Law and Criminology. University of Texas Law and Economics Workshop: Kate Litvak, UT, "Governance Through Exit: Default Penalties and Walkaway Options in Venture Capital Partnership Agreeements". Vanderbilt University School of Law: Richard Brooks, Yale. Washington & Lee University, School of Law: Michele Goodwin, DePaul University. Three by Arneson Richard Arneson (UCSD Philosophy & USD Law) has posted three new papers:
Garvey on the Heat of Passion Stephen P. Garvey (Cornell Law School) has posted Passion's Puzzle (Iowa Law Review, Vol. 90, 2005) on SSRN. Here is the abstract:
Sunday, February 20, 2005
Legal Theory Calendar
Oxford Moral Philosophy Seminar: Folke Tersman, Stockholm. Stanford The Center for Internet and Society and the Stanford Law and Technology Association: Elizabeth Townsend, CIS Non-residential Fellow, Assessing the Arrival of the Unpublished Public Domain in the Internet Age. Oxford Environmental Law Discussion Group: Dr Liz Fisher & Dr Lucia Zedner, Risk Assessment: Perspectives From Environmental Law and Criminology. University of Texas Law and Economics Workshop: Kate Litvak, UT, "Governance Through Exit: Default Penalties and Walkaway Options in Venture Capital Partnership Agreeements". Vanderbilt University School of Law: Richard Brooks, Yale. Washington & Lee University, School of Law: Michele Goodwin, DePaul University.
Georgetown Law: Gowri Ramachandran, "Intersectionals and Assimilation: Blurring the Line Between 'Reasonable' Identity Performance Demands and Irrational Discrimination". Lewis & Clark Law: Lydia Loren The Fallacy of the Extra Element. Oxford Taxation Law: Ian Menzies-Conacher, Group Taxation Director, Barclays plc and James Bullock, tax litigation partner, McGrigors, Implications of the judgments of the House of Lords in the Barclays Mercantile and Scottish Provident cases. Oxford Intellectual Property Research Centre: Rainer Moufang, Intellectual Property in the New Millennium: Recent Developments in the Case Law of the European Patent Office Boards of Appeal. Oxford Centre for Socio-Legal Studies: Roger Cotterrell, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Should "Culture" Become a Legal Concept? University of Texas School of Law: John Dzienkowski, Personal Conflicts of Interest. Widener Law School (Delaware campus): Seth Barrett Tillman, Original Understanding of the Orders, Resolutions and Votes Clause -- What James Madison Failed to Learn from the Westminster Parliamentary Tradition--based on A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned & The Domain of Constitutional Delegations under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson.
NYU Legal History: Deborah Malamud, An-Bryce Professor of Law, NYU School of Law. Nuffield College, Oxford: Antanas Mockus, Culture and Law Enforcement. UCLA Legal History: Ariela Dubler, Columbia, Immoral Purposes: The Genus of Illicit Sex and the Marriage Cure.
UCLA Legal Theory Seminar: Jules Coleman, Legal Positivism Since H.L.A. Hart. Here is a taste:
Northwestern Tax Series: Karen Burke, Warren Distinguished Professor of Law, University of San Diego, "Black & Decker's Contingent Liability Shelter: 'A Thing of Grace and Beauty'?". Oxford Public International Law Discussion Group: Robert McCorquodale, The international community and international law-making: towards an inclusive international legal system. Georgetown, Transnational Legal Issues: Bill Bratton, Comparative Corporate Governance. Boston University School of Law: Geoff Miller, NYU, TBA. George Mason University School of Law: Charles Keckler, GMU School of Law Visiting Assistant Professor, Life v. Death: Why Capital Punishment Should Marginally Deter.
UCLA School of Law: Mark Lemley, Stanford University School of Law, "Property, Intellectual Property, and Free Riding". University of Texas, School of Law: Ronald J. Mann, UT Law, & Seth Belzley, UT Law student, The Promise of Internet Intermediary Liability. University of Texas, School of Law: Thomas Kohler, Visiting Professor at UT from Boston College, "The Notion of Solidarity and the Secret History of American Labor Law". Oxford Centre for Competition Law & Policy: Sir John Vickers (Chairman, OFT), The abuse of market power. Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law, Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term: Mr. Kent Nnadozie (Nigeria), An International Regime on Access to Biodiversity and Sharing of its Benefits. |