Legal Theory Blog

Legal Theory Blog

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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.

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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?
(Eric Muller)

--Law & Society Weblog
(Group Blog)

--The Leiter Reports
(Brian Leiter)

--Lessig Blog
(Lawrence Lessig)

--Marstonalia
(Brett Marston)

--Paper Chase @ Jurist
(Bernard Hibbitts)

--Political Arguments
(Group Blog)

--ProfessorBainbridge.com
(Stephen Bainbridge)

--Pea Soup
(Group Blog)

--Punishment Theory
(Group Blog)

--The Right Coast
(Group Blog)

--SCOTUS Blog
(Group Blog)

--Sentencing Law and Policy
(Douglas Berman

--Statutory Construction Zone
(Gary O'Connor)

--TaxProf Blog
(Paul Caron)

--Volokh Conspiracy
(Group Blog)

Websites of Interest

+Arts and Letters Daily

+Conference Alerts

+Daily Whirl

+fa.philos-l

+Economic Theory News

+Encyclopedia of Law and Economics

+Jurisprudence and Social Policy Program (U.C. Berkeley) eScholarship Repository

+Law and Politics Book Reviews

+Metapsychology Book Reviews

+Notre Dame Philosophical Review

+Online Papers in Philosophy

+PoliticalTheory.info

+SSRN Most Recent Uploads

More Blogs of Interest

--Althouse
(Ann Althouse)

--Asymmetrical Information
(Jane Galt)

--bIPlog
(Group Blog)

--The Blawg Review
(Group Blog)

--Brad DeLong

--The Buck Stops Here
(Stuart Buck)

--Copyfight
(Group Blog)

--A Copyfighter's Musings
(Derek Slater)

--The Curmudgeonly Clerk

--Daniel Drezner

--Discriminations
(John and Jessie Rosenberg)

--Eastmania
(Wayne Eastman)

--EveTushnet.com
(Eve Tushnet)

--Freespace
(Timothy Sandefur)

--Furdlog
Frank Field

--Ideoblog
(Larry Ribstein)

--The Importance Of
(Ernest Miller)

--The Indiana Law Blog
(Marcia J. Oddi)

--Infothought
(Seth Finkelstein)

--IPKat
(Jeremy Phillips and Ilanah Simon)

--Law and Economics Blog
(Greg Goelzhauser)

--Law Dork
(Chris Geidner)

--Law Meme
(Group Blog)

--Lee Blog
Edward Lee

--Legal Ramblings
(Steven Wu)

--Lenz Blog
(Karl-Friedrich Lenz)

--Letters of Marque
(Heidi Bond)

--The Light of Reason
(Arthur Silber)

--Matthew Yglesias

--philosophy.com
(Gary Sauer-Thompson )

--Public Defender Dude

--Rodger A. Payne's Blog

--Southern Appeal
(Group Blog)

--Strange Doctrines/A>

--Susan Crawford blog

--A Taxing Blog
(Group Blog)

--That's News to Me
(Group Blog)

--Thoughts Arguments and Rants
(Brian Weatherson)

--Three Years of Hell to Become the Devil

--The Trademark Blog
(Martin Schwimmer)

--Troppo Armadillo
(Ken Parish)

--Technology 360

--Tutissima Cassis
(Nate Oman)

--Unlearned Hand

--Weatherall's Law
(Kim Weatherall)

--WENDY.SELTZER.ORG
(Wendy Seltzer)

--yin
(Tung Yin)

Legal Theory Programs & Websites

--Arizona State Committee on Law and Philosophy

--Cambridge Forum for Legal and Political Philosophy

--Columbia Law School Center for Law and Philosophy

--Columbia Legal Theory Workhsop

--Georgetown University Law Center--Colloquium on Constitutional Law and Theory

--Jurisprudence and Social Policy Program (U.C. Berkeley)

--Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley)

--NYU Colloquium in Legal, Political and Social Philosophy

--Oxford Jurisprudence Discussion Group

--Oxford Legal Philosophy

--Oxford Centre for Ethics & Philosophy of Law

--Queen's University Belfast Forlum for Law and Philosophy

--Rutgers Institute for Law and Philosophy

--UCLA Legal Theory Workshop

--University of Pennsylvania Institute for Law and Philosophy

--University College London: Colloquium in Legal and Social Philosophy

--University of Chicago Law And Philosophy Workshops

--University of Chicago: John M. Olin Program in Law and Economics Workshop

--University of San Diego Institute for Law and Philosophy

--University of Texas Law and Philosophy Program

--Yale Law School: Legal Theory Workshop

Links to Law School Workshops

+Australian National University Faculty Events

+Boston University

+Buffalo

+Columbia Center for Law and Economic Studies

+Florida State

+Fordham

+George Mason

+George Washington--IP Workshop Series

+Georgetown Colloquium on Intellectual Property & Technology Law

+Georgetown Law Workshops

+Georgetown Law and Economics Workshop

+Georgetown Law & Economics Workshop Series

+Hofstra

+University of Illinois

+Lewis & Clark

+Loyola Marymount

+New York University

+NYU Legal History Colloquium

+Northwestern Law Colloquium

+Oxford Law Events

+Rutgers, Camden

+Stanford Center for Internet & Society

+Stanford Law School Olin Series

+UCLA Colloquium

+UCLA Legal History Workshop

+UCLA Tax Policy

--University of Chicago: John M. Olin Program in Law and Economics Workshop

+University of Michigan Law and Economics

+University of San Diego Colloquium Series

+University of Texas Colloquium Series

+Vanderbilt Scholarly Programs & Events Calendar

+Villanova

+Washington & Lee Faculty Workshops

+Yale Law, Economics & Organizations Workshop

Calendars & Events

+Aristotelian Society

+British Society for Ethical Theory

+Conference Alerts

+Events in Analytic Philosophy in Europe (and Overseas Countries)

+The Philosophical Calendar

+Philosophy Now Calendar

+Political Science Online Upcoming Conferences

+SSRN Professional Announcements

Other Programs

--Australian National University, Research School of Social Science, Philosophy Seminars

--Boston University Philosophy Colloquia

--Brown University Philosoophy Upcoming Events

George Mason Workshop in Philosophy, Politics, and Economics

--Harvard University, Philosophy Colloquia

--MIT Philosophy Colloquia

--New York University, Philosophy Events

--Oxford: Events at the Faculty of Philosophy

--Princeton University: Philosophy Department Talks

--Princeton University: Political Philosophy Colloquium

--Princeton University: Public Law Colloquium

--Princeton University: Seminar in Law and Public Affairs

--Tulane Philosophy and Center for Ethics & Public Affairs Seminars

--University College, London: Political Theory Seminars

--University of Arizona Philosophy Colloquia

--University of Bristol Philosophy Research Seminars

--University of California at Berkeley Philosophy Events

--University of California at San Diego Philosophy Colloquia

--University of Chicago Political Theory Workshop

--University of London, School of Advanced Study, Philosophy Programme

--University of Manchester Politics & Philosophy Research Seminars

--University of Melbourne Philosophy Events

--University of North Carolina: Philosophy Speakers

--University of Pennsylvania: Philosophy Colloquiua

--University of Pittsburgh Philosophy Calendar

--Yale Philosophy Department Talks

Some Legal Theorist Homepages

--Robert Alexy (Christian Albrechts University Kiel)

--Randy Barnett (BU)

--Brian Bix (Minnesota)

--Jules Coleman(Yale Law & Philosophy)

--Ronald Dworkin(NYU & University College)

--John Finnis(Oxford and Notre Dame)

--John Gardner (Oxford)

--Brian Leiter (Texas)

--Micahel Moore (Illinois)

--Dennis Patterson (Rutgers, Camden)

--Stephen Perry (NYU)

--Richard Posner (University of Chicago & USCA7)

--Joseph Raz (Oxford and Columbia)

--Jeremy Waldron (Columbia

More to come!

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

Thursday, March 31, 2005

Entry Level Hiring--Updated Post Now Appears in April For the current report, follow this link.

Posted by Lawrence Solum at 3/31/2005 11:59:00 PM

Ayres on Sander Check out Does Affirmative Action Reduce the Number of Black Lawyers?, posted by Ian Ayres on Balkinization.

Posted by Lawrence Solum at 3/31/2005 04:06:00 AM

More on Sunstein & Vermeule I posted yesterday on Cass Sunstein & Adrian Vermeule's paper--Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs. Over at Mirror of Justice, Rick Garnett has a post that comments:

[I]t is not obvious to me that the new deterrence evidence "greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death"; nor am I sure that "[c]apital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment." If our objections to the death penalty are non-consequentialist, and focus on the immorality of its imposition, then it is not clear that our objections are vulnerable to evidence or awareness that by complying with a non-consequentialist moral rule against intentional killing we are making more likely immoral killings by others. To fail to prevent another's intentional killing is not -- is it? -- the same thing as to intentionally kill another.And Michael Perry also posts:

[E]mpirical analyses indicate that there is a threshold effect that explains the differing impacts of capital punishment. On average, the states with deterrence execute many more people than do the states where executions increase crime or have no effect. The results of this paper help to explain the contrasting conclusions for earlier papers: the deterrence or no-deterrence conclusion depends on the jurisdiction examined. My results also have important policy implications: to achieve deterrence, states must execute several people. If states are unwilling to establish such a large execution program, it may be better to perform no executions.

I'm not sure that Perry's point really undermines what I take to be the central thrust of Sunstein & Vermeule's argument--which seems entirely consistent with Shepherd's point that an effective death penalty may require "a large execution program."And you may also be interested in two posts by Will Baude (here and here) and more collected here by Doug Berman.

Posted by Lawrence Solum at 3/31/2005 03:32:00 AM

Thursday Calendar

Posted by Lawrence Solum at 3/31/2005 03:26:00 AM

Barnett on Kennedy Randy Barnett (Boston University) has posted Grading Justice Kennedy: A Reply to Professor Carpenter (Minnesota Law Review, Vol. 89, p. 1500, 2005) on SSRN. Here is the abstract:

In my article, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas (2002-2003 Cato Supreme Court Review 21 (2003)), I claim that Justice Kennedy's opinion in Lawrence is potentially revolutionary because it protects "liberty" rather than a right of privacy and shifts the burden of justification to the government without any showing that the liberty in question is fundamental, as required by well-established Due Process Clause doctrine. In his article, Is Lawrence Libertarian? (88 Minn. L. Rev. 1140 (2004)), Dale Carpenter calls into question my reading of Lawrence. In this brief reply, I respond to these criticism, by imagining that the words of Justice Kennedy's opinion were submitted to Professor Carpenter by one of his students as her answer to a final exam question based on the facts of Lawrence. I explain why he would have given the student a B precisely because the opinion deviates from the established doctrine that Professor Carpenter undoubtedly would have taught his class. Because it is a Supreme Court opinion and not a student exam answer, however, Justice Kennedy and the four justices who joined his opinion are free to ignore previous doctrine and adopt a potentiallyrevolutionary approach, for which I give Justice Kennedy an A.I read everything by Barnett. Dowload it while its hot!

Posted by Lawrence Solum at 3/31/2005 03:25:00 AM

Gerken on Dissent Heather Gerken (Harvard University - Harvard Law School) has posted Dissenting by Deciding (Stanford Law Review, Vol. 56, 2005). Here is the abstract:

On a conventional understanding of dissent, dissenters have two choices with regard to governance: act moderately or speak radically. To the extent that would-be dissenters want to govern - to wield the authority of the state - they must bargain with their votes to gain concessions from the majority. Would-be dissenters who deploy this strategy take part in an act of governance, but it is governance of a moderate sort. Alternatively, would-be dissenters can speak radically by freely stating their views in a dissenting opinion or minority report. In doing so, dissenters sacrifice the chance to be part of the governing majority; they speak with a critical rather than authoritative voice. What is missing from the usual account of dissent is a third possibility: that would-be dissenters could act radically. We have trouble envisioning dissent taking the form of a governance decision. Our conventional intuition is that dissenting means speaking truth to power, not with it. After all, we might think, if would-be dissenters had enough votes to control the outcome of a decisionmaking process, they wouldn't be "dissenters" anymore. "Dissenting by deciding" seems like a contradiction in terms. The main reason we overlook the possibility of dissenting by deciding is that we tend to conceive of democratic bodies as unitary. Where decisionmaking power is disaggregated - as with juries, school committees, or local governments - global minorities can constitute local majorities. Disaggregated institutions can thus allow dissenters to decide, to act on behalf of the polity. One example of dissenting by deciding occurred when San Francisco spent several weeks marrying gay and lesbian couples. The principle embodied in San Francisco's decision was no different than the argument found in editorials, judicial dissents, and ongoing public debates. What was different was the form dissent took. Dissenting by deciding can also take place when a school board mandates the teaching of creationism or a jury engages in nullification. These decisionmakers subscribe to the same set of commitments held by individuals whom we would unthinkingly term "dissenters." But they express disagreement not through conventional means, but by offering a real-life instantiation of their views. Dissenting by deciding, then, should be understood as an alternative strategy for institutionalizing channels for dissent within the democratic process. But because dissent has not been conceptualized in these terms, scholars have not given adequate thought to which form of dissent is preferable, and when. This paper takes a first step in that direction. The payoff for thinking about dissent in the terms proposed here is a more comprehensive set of categories for thinking about how best to institutionalize it.

Posted by Lawrence Solum at 3/31/2005 03:24:00 AM

Solove on Dworkin Daniel J. Solove (George Washington University Law School) has posted Postures of Judging: An Exploration of Judicial Decisionmaking (Cardozo Studies in Law & Literature, Vol. 90, p. 173, 1997) on SSRN. Here is the abstract:

This article pits Ronald Dworkin against Fyodor Dostoyevsky. The article critiques Ronald Dworkin's answer to the question of fit: how judges reconcile general legal rules with particular situations. Dworkin's heavy focus on legal principles under-emphasizes the importance of facts in judicial decisionmaking. Exploring how judges approach the question of fit from a more literary perspective, the article examines the posture of a judge - a judge's physical and temporal position in relation to the cases she adjudicates, a position which affects the level of generality with which a judge perceives the facts of a case and directly influences a judge's toleration of imprecision in fit between general propositions and concrete cases. Postures provide a descriptive account of aspects of our legal experience that Dworkin’s principled jurisprudence cannot explain. The article focuses on Fyodor Dostoyevsky's The Brothers Karamazov to illustrate how a multiplicity of similar yet distinct postures are shaped and how they relate to each other. An examination of Dostoyevsky's novel demonstrates deficiencies in Dworkin's theories and illustrates how literature can answer questions that Dworkin's jurisprudence cannot.

Posted by Lawrence Solum at 3/31/2005 03:22:00 AM

Coffee on a Theory of Corporate Scandals John C. Coffee Jr. (Columbia Law School) has posted A Theory of Corporate Scandals: Why the U.S. and Europe Differ on SSRN. Here is the abstract:

A wave of financial irregularity broke out in the United States in 2001-2002, culminating in the Sarbanes-Oxley Act of 2002. A worldwide stock market bubble burst over this same period, with the actual market decline on a percentage basis being somewhat more severe in Europe. Yet, no corresponding wave of financial scandals involving a similar level of companies broke out in Europe. Indeed, those scandals that did arise in Europe often had American roots (e.g., Vivendi, Ahold, Adecco, etc.). Given the higher level of public and private enforcement in the United States for securities fraud, this contrast seems perplexing. What explains this contrast? This paper submits that different kinds of scandals characterize different systems of corporate governance. In particular, dispersed ownership systems of governance are prone to the forms of earnings management that erupted in the United States, but concentrated ownership systems are much less vulnerable. Instead, the characteristic scandal in concentrated ownership economics is the appropriation of private benefits of control. Here, Parmalat is the representative scandal, just as Enron and WorldCom are the iconic examples of fraud in dispersed ownership regimes. Is this difference meaningful? This article suggests that this difference in the likely source of, and motive for, financial misconduct has implications both for the utility of gatekeepers as reputational intermediaries and for design of legal controls to protect public shareholders. What works in one system will likely not work (at least as well) in the other. The difficulty in achieving auditor independence in a corporation with a controlling shareholder may also imply that minority shareholders in concentrated ownership economies should directly select their own gatekeepers.

Posted by Lawrence Solum at 3/31/2005 03:22:00 AM

Guzelian on Scientific Free Speech Christopher P. Guzelian (Northwestern University - School of Law) has posted Scientific Free Speech on SSRN. Here is the abstract:

Audiences frequently mistake speakers' viewpoints (non-scientific speech) or authority-based opinions (scientific speech not justified by scientific knowledge) as Evidence-Based conclusions (scientific speech justified by scientific knowledge). It logically follows from settled free speech theory and fundamental tort and criminal principles ("Kiodynamic" principles) that misleading authority-based (scientific) opinions causing legally cognizable harms are punishable in tort or criminal law unless: (1) traditional tort or criminal defenses apply; or (2) the speaker has carefully standardized legislative authorization to mislead. The First Amendment may also afford a private organization a presumption that its members have assumed the risk of being misled by organizational opinions. This essay further contends that: (1) current evidentiary standards controlling expert witness testimony cannot distinguish whether a relevant scientific proposition is presently known to be a fact, a falsehood, or an uncertainty, regardless of which gatekeeper rule (Daubert, Frye, or Havner) controls. These standards assure that misleading opinions, but not necessarily Evidence-Based conclusions, reach the fact-finder in every case where dueling experts both testify; (2) current renditions of the adversarial expert witness system are therefore impermissible under Kiodynamic tort and criminal law principles, and violate the First Amendment if used specifically to resolve scientific free speech controversies; (3) state and federal governance (including the judiciary) must be restructured, so that Evidence-Based Logic (EBL) is the exclusive basis for governmental declarations of scientific knowledge.

Posted by Lawrence Solum at 3/31/2005 03:21:00 AM

Conference Announcement: The Capability Approach

5th International Conference on the Capability Approach

To submit an application to have a paper considered for inclusion in the conference, please click here.

Posted by Lawrence Solum at 3/31/2005 03:18:00 AM

LoPucki on Multinational Bankruptcy Lynn M. LoPucki (University of California, Los Angeles - School of Law) has posted Global and Out of Control (American Bankruptcy Law Journal, Vol. 79, June 2005) on SSRN. Here is the abstract:

Multinational bankruptcy cases have tremendous potential for forum shopping because changing forum country also changes the law that will determine the debtor's remedies and the creditors' priorities. That potential has been held in check by the multinational companies' need that the courts of other countries recognize the decree of the forum court. Thus, the need for recognition is the lynchpin that holds forum shopping largely in check. Many of the world's leading bankruptcy professionals are now seeking to eliminate the recognition requirement by adopting "universalist" laws and regulations. This paper briefly describes three such efforts. First, the European Union has adopted a regulation, effective in 2002, requiring EU countries to recognize multinational bankruptcies filed in the debtor's "home country" (provided that country is in the EU). Second, UNCITRAL has promulgated, and the U.S. is about to adopt, a Model Law that encourages recognition of multinational bankruptcies filed in the debtor's "home country." Third, the American Law Institute has promulgated "Principles of Cooperation in Transnational Insolvency Cases" that, when combined with the Model Law, make recognition of home country multinational bankruptcies effectively mandatory. This paper was initially published as Chapter 8 of Courting Failure: How Competition for Big Cases Is Corrupting the Bankruptcy Courts (2005). Other chapters of the book describe forum shopping and court competition in and to the U.S. This paper describes rampant forum shopping and court competition in European Union cases since the adoption of the regulation. It predicts that worldwide rampant forum shopping and court competition will result from the adoption of the Model Law, and explains how that will occur. Universalist bankruptcy laws lead to forum shopping because multinational companies do not have "home countries" in any meaningful sense and, to the extent that they do, they can easily change them to gain legal advantage over their creditors. The paper speculates that some "universalists" are deliberately seeking to throw the international bankruptcy system into chaos in order to force countries to rapidly harmonize their laws (which will reduce the incentives for forum shopping). What the Universalists have not anticipated, however, is the potential for a "race to the bottom" as courts and countries compete for the multibillion dollar business of multinational bankruptcy.

Posted by Lawrence Solum at 3/31/2005 02:58:00 AM

Wednesday, March 30, 2005

Sunstein & Vermeule on a Moral Requirement for Capital Punishment Cass R. Sunstein and Adrian Vermeule (University of Chicago Law School and University of Chicago Law School) have posted Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs on SSRN. Here is the abstract:

Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment - potential error, irreversibility, arbitrariness, and racial skew - do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat "statistical lives" with the seriousness that they deserve.I am reminded of a perhaps apocryphal story about Tom Nagel (the NYU philosopher). When asked how many lives it took to justify the killing of an innocent, Nagle supposedly said, "17"--intending to demonstrate the absurdity of the question. I wonder about the claim that "government is a special kind of moral agent"--yes, special--but government only acts through individuals, who may have special roles, but are ordinary agents. Highly recommended!
Update: For more, including criticism of Sunstein & Vermeule, scroll up or surf here.

Posted by Lawrence Solum at 3/30/2005 03:38:00 PM

Patterson on Dworkin Dennis Patterson has posted Dworkin on the Semantics of Legal and Political Concepts on SSRN. Here is the abstract:

In a recent comment on H.L.A. Hart's 'Postscript' to The Concept of Law, Ronald Dworkin claims that the meaning of legal and political concepts may be understood by analogy to the meaning of natural kind concepts like tiger, gold and water. This article questions the efficacy of Dworkin's claims by challenging the use of natural kinds as the basis for a semantic theory of legal and political concepts. Additionally, even if there are natural kinds, Dworkin's arguments for their efficacy in jurisprudence are problematic and unpersuasive. One problem for Dworkin is that his embrace of natural kinds undermines the "fit" side of his fit/justification model of adjudication. Finally, because in matters of value there is no methodological equivalent to the scientific method, there is little hope of finding hidden essences to explain the meaning of legal and political concepts.Don't miss this! I always learn from Patterson. Highly recommended!

Posted by Lawrence Solum at 3/30/2005 10:18:00 AM

McCann on Nutritional Labeling Michael McCann has posted Comparing Legal, Economic, and Legislative Approaches to Nutritional Labeling of Fast Food Items on SSRN. Here is the abstract:

This article explores four theoretical approaches to the nutritional labeling of fast food items: 1) The Voluntary Agreement Model; 2) The Free Market/Light Menu Model; 3) The Litigation Model; and 4) The Legislative Model. These models are explored in the context of the increasing frequency at which Americans consume fast food, the surging percentage of Americans who are overweight, and the recognition that more than half of all obesity-related costs are borne by taxpayers and employers. Related analysis also pertains to an application of Consumer Choice Theory to food choice. After concluding that the first three models are likely deficient in redressing related concerns, this article recommends that fast food restaurants generate full nutritional disclosure for items aimed at children 14 and under; that such disclosure replicate the format established by the Nutrition Labeling and Education Act; and that it be available at the point-of-sale.

Posted by Lawrence Solum at 3/30/2005 10:04:00 AM

SSRN Rankings of Tax Faculty Check out this post on TaxProf Blog. Louis Kaplow is Number One. And if you missed it, here is the link (registration required) to the SSRN ranking of law faculty by downloads in the last twelve months.

Posted by Lawrence Solum at 3/30/2005 12:02:00 AM

Tuesday, March 29, 2005

Hadfield on the 9/11 Compensation Fund Gillian Hadfield (The Law School, University of Southern California) has posted The September 11th Victim Compensation Fund: An Unprecedented Experiment in American Democracy (THE FUTURE OF TERRORISM RISK INSURANCE, Defense Research Institute (DRI), 2005) on SSRN. Here is the abstract:

September 11th laid bare the foundations not only of the Twin Towers in downtown Manhattan but also of American ambivalence about a central democratic institution, the civil justice system. American democracy is built on the idea that ordinary individuals can participate in governance, taking action to ensure the laws are followed by activating and indeed to some extent directing the power of the state through the judicial branch. American businesses have relied on the availability of the courts to resolve their disputes about how their losses caused by the terrorist attacks should be distributed. But Congress sought to divert non-business entities out of the courts, rushing to provide an alternative source of compensation which it would make available to those who waived their right to litigate their disputes with those who may have contributed to their losses. In collapsing the compensation (actually insurance, for compensation implies a payment from one who caused an injury to a person harmed by that injury) function of the civil justice system with its democratic function - requiring access to one be purchased through disavowal of the other - Congress contributed to the erosion of democratic commitment to litigation as an important means by which the 'rule of law' is honored. The VCF was, as the Special Master concluded, a generous expression of shared loss by the American public and served well, as the RAND study concluded, to fill the gaps in other sources of social insurance. But by tying access to that insurance to the waiver of civil litigation, the VCF went farther than it had to and farther than it should have. The problems with civil litigation - its extraordinary cost, complexity and slowness - are real, and require real solutions. But closing off the courts is not among the solutions a democratic society should entertain. Congress had the opportunity, and still does, to devise a democratic response to the problems of civil litigation. An alternative in cases of mass tragedy such as September 11th could well provide both for democratic commitments and a reasonable and contained process. Reasonably just substitutes for civil actions should, perhaps constitutionally must, provide a substitute not only for the money plaintiffs might recover through this means, but also for the opportunity civil litigation gives ordinary citizens to participate in the institutions that give meaning to the rule of law.

Posted by Lawrence Solum at 3/29/2005 01:18:00 PM

Marmor on Textualism Andrei Marmor (University of Southern California - Law School) has posted The Immorality of Textualism (Loyola Law Review, 2005) on SSRN. Here is the abstract:

In this short essay I argue that textualism, as a doctrine of statutory interpretation, is inherently deceptive and therefore immoral. Textualism is typically presented by its adherents as an interpretive practice that is motivated by respect for democracy and respect for the authority of the legislature. But in fact, textualism's preoccupation with ordinary meaning and literal application of statutes is motivated by constraining the legislature's ability to pursue broad regulatory policies. Authorities do not want to be understood literally. Authorities purport to govern, and governance requires cooperation in the spirit of its goals, not strict adherence to the letter of its directives.A provocative thesis, given the difficulties in providing evidence for the true motivations, not of "textualism," which has none, but of its proponents, on the bench and in the academcy.

Posted by Lawrence Solum at 3/29/2005 01:17:00 PM

Conference Announcement: Principles of Association in British History at Chicago

or Víctor M. Muñiz-Fraticelli at . Co-sponsors: The Chicago Center for Democracy, the Committee on Social Thought, the Center for Gender Studies, and the Department of Political Science at the University of Chicago. Conference Schedule: 8:30 - 8:45: Opening Remarks 8:45 - 10:30: Panel 1. Politics and Association Samuel Fleischacker, University of Illinois at Chicago "Face-to-face Relationships in Adam Smith: Some Political Implications" Michael Goode, University of Illinois at Chicago “Peace Shall Move Mountains: An Examination of Seventeenth Century Quaker Pacifism and the 1660 Declaration" Thomas Weber, University of Chicago “Principles of Association in Oxford Colleges between c. 1880 and 1914” 10:45 - 12:30: Panel 2. Identity and Pluralism Avigail Eisenberg, University of British Columbia "Mindful Neglect: Identity Politics in Liberal and Democratic Traditions" Jacob Levy, University of Chicago “British Pluralism, Liberalism, and Medievalism" Jane Silloway, Northwestern University “Rewriting the Reformation” (Lunch Break) 2:00 - 3:45: Panel 3. Marriage, Sexuality, and the Family Mary Anne Case, University of Chicago Law School "The Role of the State in Marriage and in the Business Corporation" Mary L. Shanley, Vassar College "'Marriage Contract and Social Contract' Revisited: Persistent Dilemmas for Liberal Theory" Hristomir Stanev, University of Chicago “Wayward Sexuality and Domestic Instability in Thomas Dekker’s City Comedies” 4:00 - 5:45 : Panel 4. The Sovereign and its Subjects Robert McJimsey, Colorado College "Founding the Stuart Monarchy: Honor and Virtue at the Court of James I" Victor M. Muniz-Fraticelli, University of Chicago “‘On Resistance and Rebellion in Shakespeare" Dana Rovang, University of Chicago “The Head of the King: Madness, Passion and Sovereignty in Late-Eighteenth Century England” 5:45 - 6:00: Closing Remarks

Posted by Lawrence Solum at 3/29/2005 01:11:00 PM

Bodie on the Future of the Casebook Matthew T. Bodie (Hofstra University - School of Law) has posted The Future of the Casebook: An Argument for an Open-Source Approach on SSRN. Here is the abstract:

Despite dramatic technological change, the thick, attractively-bound casebook remains ensconced as the written centerpiece of legal education. That will soon change - but its replacement has not been established. This paper argues that the legal academy should take this opportunity to implement an "open source" approach to future course materials. Guided by analysis and examples of commons-based peer production such as open source software, professors could establish electronic commons casebooks with a myriad of materials for every course. These joint databases would unshackle individual creativity while engendering collaboration on levels previously impossible. Although there may be concerns that such a project would not draw any interest, or might be swamped by too much interest, the successes of other peer-production projects demonstrate that such concerns are generally unwarranted or manageable. Copyright ultimately poses the biggest difficulty, but even that barrier can be circumvented to greater and lesser degrees. Although as yet an untried experiment, an open source approach has the potential to open a new era in legal pedagogy.

Posted by Lawrence Solum at 3/29/2005 10:59:00 AM

Monday, March 28, 2005

Pildes on the 2003 Supreme Court Term Rick Pildes (NYU) has posted The Constitutionalization of Democratic Politics - The Supreme Court, 2003 Term (Harvard Law Review, Vol. 118, No. 29, 2004) on SSRN. Here is the abstract:

Around the world, courts in the last two decades have increasingly extended constitutional law to oversee the basic structure of democracy itself. This development constitutes a significant transformation in the object of constitutional law - a shift from the conventional individual rights and anti-discrimination focus and toward judicial engagement with the institutions and processes of democratic politics. Whether resolving disputed Presidential elections, evaluating the design of representative institutions, determining the role of political parties, assessing the financing of elections, or even managing the transition from authoritarian to democratic regimes, courts and constitutional law have now become central actors in organizing the way democracy is practiced. The first aim of this Foreword is to make this transformation fully visible. The Foreword focuses primarily on the United States Supreme Court, where these developments are most pronounced. The Foreword then turns to assessing this new frontier of constitutional law; the Foreword argues that, thus far, courts have done both too little and too much in the way they have constitutionalized the essential structures of democracy. Courts have been insufficiently responsive to the tendency of those holding political power to structure the ground rules of democracy to entrench themselves more deeply in power. At the same time, courts have inappropriately constitutionalized, without sufficient justification, the broad rights of politics - to vote, to speak, to associate - in ways that wrongly limit the ability of democracies to experiment with new ways of organizing democratic politics. Given the disaffection with current forms of democracy expressed in many mature democracies today, this judicial tendency to constitutionalize existing democratic arrangements and freeze them in place threatens the ability of democracies to revise themselves. As courts enter this new domain, the Foreword offers a theoretical and doctrinal framework that defines the role constitutional law ought to play - more expansive in some contexts, less expansive in others - in overseeing the structure of democracy. The Foreword then applies this framework to a number of specific issues: partisan gerrymandering; the representation of diverse groups in political bodies; the legal regulation of political parties; the role of independent bodies to oversee election practices; and campaign financing.I take special pleasure in recommending Pildes's elegant and interesting foreward to the Supreme Court issue of the Harvard Law Review.

Posted by Lawrence Solum at 3/28/2005 02:27:00 PM

Monday Calendar

"Using the Veil of Ignorance to Ensure Justice in Class Actions: A Rawlsian Approach to Adequacy of Representation"

In both federal and state practice, judges must certify class actions for the class actions to proceed, and must approve class settlements for those class settlements to have any legal effect.1 Judges may or may not make explicit findings regarding the adequacy of representation class members received, but even where then are no explicit findings, judicial certification of a class and approval of a class settlement arguably implies a finding of adequacy of representation.2 Why then should class members ever be able to challenge the settlement in subsequent actions? Why should they not be bound to the settlement if a court explicitly, or even just implicitly, has held that they were adequately represented in the process that produced the settlement? To answer that question, we must first unpack the concept of “adequate representation.” Adequacy of representation in the class context cannot mean what it means in non class litigation – that the lawyer faithfully attend to the client ’s interest, advise the client of the various options available to her, and give her the opportunity to make the ultimate decisions about whether to accept or reject a settlement offer. In the non-class-action litigation context, the client is actually present, or at least could be if she so chooses. It seems reasonable, therefore, that the law hold her to the choices she made even if those choices result in different consequences from those that she anticipated.4 In the class action context, the client –the class members or at least almost all of them – are not present ; indeed, many class members are never even aware of the existence of the class litigation to which they are, in theory, a party. They are represented only virtually, by means of class representatives. And since class representatives are almost always nominal actors,5 the absent class members are in truth represented only by class counsel, acting, typically, with minimal or no real client input.

I read an earlier version of the paper, which is highly recommended!

Patent Porfolios

This article presents a new theory of patent value, responding to growing empirical evidence that the traditional appropriability premise of patents is fundamentally incomplete in the modern innovation environment. We find that for patents, the whole is greater than the sum of its parts: the true value of patents lies not in their individual worth, but in their aggregation into a collection of related patents, a patent portfolio. The patent portfolio theory thus explains what is known as "the patent paradox": in recent years patent intensity—patents obtained per research and development dollar—has risen dramatically even as the expected value of individual patents has diminished. We find the benefits of patent portfolios to be so significant as to suggest that firms' patenting decisions are essentially unrelated to the expected value of individual patents; because patent portfolios simultaneously increase both the scale and the diversity of available marketplace protections for innovations, firms will typically seek to obtain a large quantity of related patents, rather than evaluating their actual worth. The result—which we find widely recognized in commercial circles—is that the modern patenting environment exhibits (and requires) a high-volume, portfolio-based approach that is at odds with scholars' traditional assumptions. The implications of the patent portfolio theory are important and widespread. First, the explanatory power of the theory allows resolution of not only the patent paradox, but many of the otherwise-puzzling observable patterns in the modern patenting environment—such as firm-size differences in patent intensity and litigation rates. Second, the patent portfolio theory neatly complements the prior theories that have sought to explain modern patent value, strengthening their relationship with the reality of patenting behavior—and confirming that the value of patents has expanded beyond traditionalist notions. Third, the patent portfolio theory allows a number of important predictive insights into future trends in the patent system, allowing policymakers and scholars to frame their inquiry within a range of likely outcomes. In our analysis, the patent portfolio theory does not suggest a better, brighter future for the patent system, but does build a foundation for the important academic and policy-related work that springs from this initial treatment.

Posted by Lawrence Solum at 3/28/2005 08:13:00 AM

Leiter on the Hermeneutics of Suspicion Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted The Hermeneutics of Suspicion: Recovering Marx, Nietzsche, and Freud (Brian Leiter, THE FUTURE OF PHILOSOPHY, Clarendon Press, pp. 74-105, 2004). Here is the abstract:

Paul Ricoeur famously dubbed that great triumvirate of late nineteenth - and early twentieth-century thought - Marx, Nietzsche, and Freud - "the school of suspicion," by which he meant those thinkers who taught us to regard with suspicion our conscious understandings and experience, whether the deliverances of ordinary psychological introspection about one's desires ("I really want to be rich!"), or the moral categories political leaders and ordinary citizens apply to themselves and the social world they inhabit ("an inheritance tax is an immoral death tax!"). "Beneath" or "behind" the surface lay causal forces that explained the conscious phenomena precisely because they laid bare the true meaning of those phenomena: I don't really want lots of money, I want the love I never got as a child; survivors have no moral claim on an inheritance, but it is in the interests of the ruling classes that we believe they do; and so on. Recent years have been, in now familiar ways, unkind to Marx and Freud. Yet instead of a frontal assault on the critiques of the explanatory programs of Marx and Freud, the defense of their legacy in the English-speaking world has gradually fallen to those I will call moralizing interpreters of their thought. The moralizing readers de-emphasize (or simply reject) the explanatory and causal claims in the work of Marx and Freud, and try to marry more-or-less Marxian and Freudian ideas to various themes in normative ethics and political philosophy. Explanation of phenomena is abandoned in favor of the more traditional philosophical enterprise of justification, whether of the just distribution of resources or the possibility of morality's authority. So, for example, G.A. Cohen, the most influential of English-language Marx interpreters in recent decades, has declared that "Marxism has lost much or most of its [empirical] carapace, its hard shell of supposed fact" and that, as a result, "Marxists...are increasingly impelled into normative political philosophy." (Under the influence of Habermas, the Marxist tradition has taken a similar turn on the Continent.) Similarly, a leading moral philosopher notes that, "Just when philosophers of science thought they had buried Freud for the last time, he has quietly reappeared in the writings of moral philosophers" and goes on to claim that "Freud's theory of the superego provides a valuable psychological model for various aspects of [Kant's] Categorical Imperative." On these new renderings, Marx and Freud command our attention because they are really just complements (or correctives) to Rawls or Korsgaard, really just normative theorists who can be made to join in a contemporary dialogue about equality and the authority of morality. Nietzsche, too, has been transformed by moralizing interpreters, though in a somewhat different way. The crucial development here has been the retreat from the natural reading of Nietzsche as a philosopher engaged in an attack on morality -a reading first articulated by the Danish scholar Georg Brandes more than a century ago - in favor of a reading which presents Nietzsche as fundamentally concerned with questions of truth and knowledge: the moralistic scruples of interpreters are satisfied by treating Nietzsche as concerned with something else, something less morally alarming than a "revaluation of values." I shall argue that, in fact, all three of the great practitioners of the hermeneutics of suspicion have suffered at the hands of moralizing interpreters who have resisted the essentially naturalistic thrust of their conception of philosophical practice. As a matter of both textual exegesis and intellectual importance, Marx, Nietzsche, and Freud are best read as primarily naturalistic thinkers, that is thinkers who view philosophical inquiry as continuous with a sound empirical understanding of the natural world and the causal forces operative in it. When one understands conscious life naturalistically, in terms of its real causes, one contributes at the same time to a critique of the contents of consciousness: that, in short, is the essence of a hermeneutics of suspicion.Also, Leiter has posted a revised version of his Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence.

Posted by Lawrence Solum at 3/28/2005 08:00:00 AM

Zacharias on Lawyer Assistance Programming Fred C. Zacharias (University of San Diego School of Law) has posted A Word of Caution for Lawyer Assistance Programming (Georgetown Journal of Legal Ethics, Vol. 18, 2005) on SSRN. Here is the abstract:

With increasing awareness of the problem of substance abuse in the legal profession has come the natural desire to develop responses. Formal bar-sponsored "lawyer assistance" programs have sprouted throughout the United States. Many of these programs have been accompanied by rules that permit lawyers to seek help on a confidential basis. There is a very real tension between the functions of the bar in assisting lawyers in reforming their behavior, or seeking help for their addiction, and in protecting clients against lawyer misconduct. This tension has ramifications for the programs and rules bar organizations may wish to institute, for the principles that should govern administrators of lawyer assistance and bar disciplinary programs, and for the emphasis bar associations may wish to adopt for their activities. The goal of this brief comment is to identify a few of the issues that each state and local bar association should address before reaching any conclusions regarding the appropriateness of particular forms of lawyer assistance.

Posted by Lawrence Solum at 3/28/2005 08:00:00 AM

Arewa on Sampling Olufunmilayo Arewa (Case Western Reserve University - School of Law) has posted From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context on SSRN. Here is the abstract:

Tremendous controversy exists today about legal treatment of hip hop music. Having just reached its thirtieth birthday, hip hop is now the second most popular type of music in the United States and an important musical and cultural force globally. The advent of hip hop has raised serious copyright law concerns. At the core of such concerns is the issue of sampling, or the use of pieces of existing recorded music within hip hop works, which has been deemed in some instances to constitute copyright infringement. Professor Arewa discusses issues that arise in the application of copyright to music generally as well as historical and cultural aspects of the hip hop debate. In discussions of music, particularly in the legal field, hip hop is considered within a tradition that values independent and autonomous authorship of musical works and that consequently reflects pervasive romantic author discourse. Within such discussions, the manner of music production of great masters of the European classical tradition may be seen as a model of musical production against which musical forms such as hip hop are often at least implicitly measured. The image of the classical tradition embedded in such discussions is, however, inaccurate and distorted. The classical music tradition is an invented tradition that was largely constructed in the nineteenth century and that no longer operates as an active tradition to which new works are being added in any quantity. Actual practice within the classical tradition varies significantly from the idealized imagery of this tradition evident in legal discourse about music. The image of the classical tradition is important because through characterizations of this tradition, hip hop musical production is distinguished from other methods of making music in a number of ways through the use of a series of implicit and explicit dichotomies. In looking at this classical tradition historically, however, it is clear that much continuity underlies the production of music generally, particularly in relation to musical borrowing, which was common in the European classical tradition in actuality as opposed to its constructed history. The varied uses of musical borrowing suggest that more careful consideration needs to be given to the extent to which copying and borrowing have been and can be a source of innovation within music and by extension elsewhere. Recognition of such borrowing needs to be incorporated into existing copyright frameworks as a basis for the development of commercial practices and liability rule based legal structures for treatment of music, including hip hop, which uses existing works in its creation.

Posted by Lawrence Solum at 3/28/2005 07:18:00 AM

Sunday, March 27, 2005

Legal Theory Calendar

Sunday, March 27

Conference, The Nuremberg Trials: A Reappraisal and Their Legacy

Monday, March 28

"Using the Veil of Ignorance to Ensure Justice in Class Actions: A Rawlsian Approach to Adequacy of Representation"

I read an earlier version of the paper, which is highly recommended!

Patent Porfolios

Tuesday, March 29

Wednesday, March 30

Thursday, March 31

"Accidents of the Great Society"

Its Not the Thought that Counts

In an oft-quoted passage, Justice Holmes asserts that “even a dog distinguishes between being stumbled over and being kicked.” According to Fred Schauer, Holmes overestimates dogs. Perhaps Holmes is wrong about people too. The passage appears to suggest that it is the intention of the actor that matters to the determination of what sort of action takes place. The actor’s intention has the power to transform the action from an instance of kicking to an instance of tripping. And because we assume that kicking is, generally speaking, morally wrong while tripping is, generally speaking, not morally wrong, this transformation is important. But this common understanding of the meaning of that passage may be mistaken. After all, Holmes only needs to bother with the assertion that even a dog can discern the kick from the trip unless it matters what the recipient is likely to take the action to be. The logic of the passage actually works as follows: If even a dog knows the difference, then a fortiori a person can be expected to know as well. Holmes therefore concedes that the way an action is likely to be perceived matters to the determination of what sort of action it is and how we ought to judge that action. The contrary claim –that intention matters – plays a central role in Equal Protection doctrine and commentary. While that doctrine is admittedly complex and contradictory and has generated significant commentary and controversy, nonetheless it is probably fair to say that the intention of the state actor in enacting a law or policy continues to play an important role in the determination of whether that law or policy violates Equal Protection. Moreover, there are two important ways in which intention is taken to matter. First, intention may matter because it is the actor’s intention that determines the nature of the action itself – is it kicking or tripping, for example. Second, intention may matter to the determination of the legal permissibility of the action once defined. In Equal Protection law, is it the thought that counts?

Who Should Govern Who Governs

If in a democracy the people have the authority to choose their representatives, then it would seem to follow that they should have the authority to choose the procedures by which they choose their representatives. Yet in nearly all democracies the procedures that govern elections have been established by officials or representatives themselves. Legislatures, courts and commissions rather than popular initiatives or constitutional conventions created and continue to control the electoral process in most democracies. Until recently, attempts to change any electoral system were rare and rarely succeeded. But in the past decade, electoral reform has been gaining a place on the political agenda in many democracies. In the 1990s, many newly emerging democracies designed their own systems, and nine established democracies made far-reaching changes in their existing systems. Although many of these reforms have been carried out by elites, usually in reaction to contingent political circumstances rather than in the service of a plan for improving the system itself, citizens themselves have increasingly demanded, and in some cases won, a significant role in the process of reform. The question of who should choose the electoral system—and more specifically what role citizens should play in that choice—is thus timely. Posing it also creates an opportunity to raise some issues in democratic theory that have been often neglected. In this paper, I construct a theoretical justification for popular participation in the choice of electoral systems, and consider several objections to such participation. To give the objections (and the replies) institutional content, I draw on the experience of a current case— the British Columbia Citizens’ Assembly on Electoral Reform. The institution of the Assembly represents the first time in history (as far as I know) that any democracy has enlisted ordinary citizens in this way to change an electoral system.

The symposium is about class actions that advance claims for conspiracy, such as price-fixing, bid-rigging and market share manipulation.

Friday, April 1

Virtue Ethics vs. Kantian Ethics

This conference examines virtue ethics, Kantian ethics, their past and present, their differences, and their respective strengths and weaknesses.

Virtue Jurisprudence: An Aretaic Theory of Law

"Patent Portfolios"

Posted by Lawrence Solum at 3/27/2005 08:24:00 PM

Legal Theory Lexicon: Hohfeld

Introduction

Why?

Fundamental Legal Conceptions

Types of Rights and Correlative Duties

Four Types of Rights

Claim Rights

claim

duty

Liberty Rights

liberty

no claim

Authority Rights

authority

liability

Immunity Rights

immunity

disability (no authority)

Moral and Legal Rights

legal

moral

Conclusion

Posted by Lawrence Solum at 3/27/2005 11:54:00 AM

Gerhardt on the Constitutionality of a Judicial Filibuster Over at ACS Blog, there is a post entitled Gerhardt on the "The Constitutionality of the Filibuster", which analyzes a recent piece by Michael Gerhardt in Constitutional Commentary. Here is a taste:

[T]he filibuster is best understood as a classic example of a non-reviewable, legislative constitutional judgment. It is also a practice that has the same claim to constitutionality as many counter-majoritarian practices within the Senate, including the committee structure and unanimous consent requirements. The Constitution permits all of these practices, though it does not mandate any of them. These practices define the Senate’s uniqueness as a political institution, particularly its historic commitments to various objectives--respecting the equality of its membership and to minority viewpoints; encouraging compromise on especially divisive matters; and facilitating stability, order, and collegiality in the long run. The principal checks on these practices, including the filibuster, are political. They include the Senate Rules, the need to maintain collegiality within the institution, and the political accountability of senators for their support for, or opposition to, filibusters.

Posted by Lawrence Solum at 3/27/2005 11:44:00 AM

Jacobs on Life Tenure for Judges Over at Townhall.com, Paul Jacob has an op/ed entitled Benching the judges. Here is taste:

Calls for a limit on judicial terms are long overdue. One of the best proposals is House Joint Resolution 55, a constitutional amendment introduced by Texas Rep. John Culberson (R-Houston), that would require federal district court judges to be retained every 10 years by both the state legislature and the governor where the judge serves. That strengthens federalism by interconnecting the federal courts with state governments, which are closer to the people. Yet this amendment is going nowhere in Congress. The problem is obvious: we can hardly expect an out-of-control Congress to help us bring the judiciary under control. Instead, in keeping with Alexis de Tocqueville's view of the states as "laboratories of democracy," bringing the judiciary under control must start closer to home. State judges have exhibited similarly bad behavior and, through the initiative process and more accessible legislators and elections, voters can do something about it.In the piece, Jacob quotes me as follows:

"The way we got into this mess begins with a judiciary that is already politicized," University of San Diego law professor Lawrence B. Solum says. "Lifetime tenure looks like a pretty silly idea if it is being used to safeguard the power of judges who have been thoroughly politicized." The quote is accurate, but a bit out of context--especially when used to support an end to lifetime tenure. Here is the conclusion of the paragraph:

Principle One: judges should be selected on the basis of their possession of the judicial virtues, and especially the virtue of justice--fidelity to the rule of law. Principle Two: each party should agree to allow the nominees of the other party to come to a floor vote, and Senators should vote to confirm--unless there is good evidence that the nominee lacks the constituent elements of good judicial character.

My original post, quoted by Jacob, was Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.

Posted by Lawrence Solum at 3/27/2005 11:22:00 AM

Saturday, March 26, 2005

Saturday Calendar

Conference, Default Rules in Private and Public Law

Posted by Lawrence Solum at 3/26/2005 10:36:00 AM

Legal Theory Bookworm The Legal Theory Bookworm recommends The Law as It Could Be by Owen Fiss. Here is a brief description:

The Law As It Could Be gathers Fiss's most important work on procedure, adjudication and public reason, introduced by the author and including contextual introductions for each piece—some of which are among the most cited in Twentieth Century legal studies. Fiss surveys the legal terrain between the landmark cases of Brown v. Board of Education and Bush v. Gore to reclaim the legal legacy of the Civil Rights Movement. He argues forcefully for a vision of judges as instruments of public reason and of the courts as a means of shaping society in the image of the Constitution. In building his argument, Fiss attends to topics as diverse as the use of the injunction to restructure social institutions; how law and economics have misunderstood the role of the judge; why the movement seeking alternatives to adjudication fails to serve the public interest; and why Bush v. Gore was not the constitutional crisis some would have us believe. In so doing, Fiss reveals a vision of adjudication that vindicates the public reason on which Brown v. Board of Education was founded.And follow this link for a review.

Posted by Lawrence Solum at 3/26/2005 10:09:00 AM

Download of the Week The Download of the Week is Analytical Jurisprudence versus Descriptive Sociology Revisited by Nicola Lacey. Here is a taste:

In this essay, I want to revisit the protracted, inconclusive and sometimes unedifying debate prompted by Hart’s famous claim in the Preface to The Concept of Law that the book might be regarded as a contribution not only to analytical jurisprudence but also to descriptive sociology. Drawing on my work on Hart’s biography, I shall review his own reflections on the claim, the arguments in legal theory to which his claim gave rise, and the reasons for thinking that the structure of his own theory prevented him from following through on the insights from which his claim proceeded. My motivation is not, however, primarily that of the biographer or intellectual historian. Rather, this general interpretive question about Hart connects with some long-standing interests which have informed my own work in jurisprudence and criminal law theory. So, while bearing in mind Freud’s view of the biographer’s relationship with his or her subject as ‘a heady brew of Oedipal triumph and sibling rivalry’(!), I shall use my engagement with Hart’s biography and intellectual legacy as the jumping off point for a further examination of the relationship between what have come to be called ‘internal’ and ‘external’ approaches to legal theory, and about the relative contributions of philosophy, history and the social sciences to our systematic understanding of the nature of law. Are legal philosophers justified in regarding sociological legal theorists as playing an entirely different game or, to put the question in Kornhauser’s terms, does it make sense to seek a theory of the ‘legal order’ independent of a theory of the ‘legal regime’? My argument will proceed in three stages. First, I shall examine Hart’s original claim, interpreting it in the light of the archival materials – particularly Hart’s working notebooks – which were available to me as his biographer. I shall then consider the role of this dual ambition in Hart’s later development of his own theory of law. In this section I shall argue that structural features of Hart’s theory, as well as his insistence on the primacy (or even on the exclusive relevance) of philosophical method to jurisprudence, prevented him from building on his original insight that a theory of law might be taken as a genuine contribution to sociology. Ironically, Hart’s emphatic recapitulation of the essentially descriptive nature of his legal theory in the posthumously published Postscript took him, if anything, further from his original insight, and underlines the rather limited extent to which his theory built up its promise of a social or institutional theory capable of illuminating the ways in which the conception of law reflected in usage ‘depend[s] on social context’. Yet, after decades of a mutual lack of interest (tinged on both sides with a whiff of contempt), the productive dialogue between philosophical and socio-legal theory glimpsed in the Preface has, I shall argue, now begun to flourish. Today, Hart’s original insight is more widely appreciated, perhaps as a result of the increasingly stark contrast between his style of legal philosophy and the more abstract and technical style of some of his positivist successors. In the second section of the paper, I shall consider the relationship between Hart’s idea that legal theory had to do with both analytical jurisprudence and descriptive sociology and what might be called the project of ‘special’ as opposed to ‘general’ jurisprudence. The revival of a philosophically sophisticated special jurisprudence – a mode of conceptual analysis very different from the arid jurisprudential pondering on concepts such as ownership and possession which he skillfully lampooned in ‘Definition and Theory in Jurisprudence’ – is generally considered to be one of Hart’s most important long-term contributions to the field. And while it is most often associated with his normative work – notably Punishment and Responsibility – the vast monument of Causation in the Law, as well as the interplay of the normative and the analytic in this aspect of Hart’s work, testify to the relevance of this special jurisprudence to his analytical project. In suggesting that here, too, there was an implicit (and incompletely realised) social dimension to Hart’s work, I am moving beyond any claim of his own. But I shall argue that the claim in the Preface is of great relevance to his analysis of legal concepts such as causation, intention or negligence, and of higher level concepts such as responsibility which he argued to underpin these legal concepts. Indeed, I shall suggest that it may be easier to get a clear view of the mutual dependence of analytic/conceptual and social/institutional aspects of legal theory through a discussion of ‘micro’ than of ‘macro’ legal theory. In the final section of the paper, I shall develop the argument of the second section through three case studies within special jurisprudence, each of them the subject of Hart’s work. First, I shall consider the idea of causation in legal discourse; second, the idea of responsibility in criminal law; and finally the idea of corporate personality and responsibility. Through the case studies, I shall argue that a full understanding of legal concepts (and, by extension, legal rules, principles, doctrines) can only be attained by supplementing philosophical analysis with a study of the social institutions and contexts in which those concepts, rules and arrangements are embedded. Accordingly, my argument will be that if legal theorists want to escape the sort of isolation or irrelevance risked by a view of jurisprudence as autonomous, we had better abandon Hart’s insistence that philosophy is its exclusive disciplinary resource. In conclusion, I shall suggest that a view of ‘internal’ and ‘external’ jurisprudence as mutually dependent would be more intellectually satisfactory than the philosophical imperialism which currently characterises the field.Lacey just gave this paper as the Annual Leon Green '15 Lecture in Jurisprudence--in connection with Texas's excellent law and philosophy program. I just finished reading this paper again. (I'd seen an earlier version.) Highly recommended! Download it while its hot!

Posted by Lawrence Solum at 3/26/2005 10:02:00 AM

Friday, March 25, 2005

Brown on Representation and Accuracy in Criminal Adjudication Darryl K. Brown (Washington and Lee University - School of Law) has posted The Decline of Defense Counsel and the Rise of Accuracy In Criminal Adjudication on SSRN. Here is the abstract:

With respect to truth-finding, American criminal procedure governs adjudication in considerable detail but investigation relatively little. Strong regulation of adjudication, in theory, maximizes accuracy despite weak investigative regulation because adjudication checks investigation. Yet adjudication - which occurs through bargaining much more often than trials - is a weak guarantor of accuracy for many reasons, one of which is the systemic weakening of adversarial process achieved by legislative under-funding of indigent defense. Despite these weaknesses, new means to improve fact-finding in criminal justice - most prominently, DNA analysis - recently have made accuracy a higher priority by making errors harder to conceal. We now see early signs of a new model for criminal justice, a system that depends less on adversarial process and more on practices that look familiar to administrative and inquisitorial settings. This shift holds much promise. The accuracy-enhancing function of defense attorneys - scrutinizing the reliability of state evidence and presenting evidence the state ignored - can be in significant ways supplanted by other mechanisms, many of which are more politically sustainable. The emerging practices diminish adjudication's role and moderate its adversarial features. New investigation-stage practices take the place of weak incentives arising from trials and bargaining. Executive and judicial actors are beginning to supplement weak defense counsel in aiding accuracy, and they have some advantages over adversarial lawyering. Adjudication is becoming a relatively less important procedural stage for truth finding as investigation becomes more so. Adjudication is weaker than we thought, but investigation is, in some compensatory ways, growing stronger as it also grows less adversarial.

Posted by Lawrence Solum at 3/25/2005 02:36:00 PM

SSRN Top 1,000 Law Authors Follow this link (registration required), for SSRN's ranking of authors from the legal academy by recent downloads. Number one is Lucian Bebchuk of Harvard.

Posted by Lawrence Solum at 3/25/2005 10:05:00 AM

Friday Calendar

Here is a link to her paper.

Conference, Default Rules in Private and Public Law

Posted by Lawrence Solum at 3/25/2005 10:05:00 AM

Fellowship Announcement

2005 OLIVE W. GARVEY FELLOWSHIPS COMPETITION Top Essays To Be Awarded $2,500 (College Students) or $10,000 (Untenured Professors) http://www.independent.org/students/garvey/ The Independent Institute is pleased to announce the 2005 Olive W. Garvey Fellowship Competition. Cash prizes will be awarded to outstanding college students -- and untenured "junior" faculty -- from around the world through a competitive essay contest. Held biennially, the Garvey Fellowship is intended to encourage and reward scholarship pertaining to the meaning and significance of economic and personal liberties. The specific essay topic changes with each contest. This essay topic for 2005 Garvey Competition is taken from a quotation by Nobel-laureate economist and social philosopher Friedrich A. Hayek (1899-1992): "The great aim of the struggle for liberty has been equality before the law." A panel of three judges will look for the best essays related to Hayek's quotation -- original essays distinguished by their clarity, rigor, and eloquence. The essays need not be technical or demonstrate hyper-specialized scholarship, although they should be serious in content, tone, and style. Founded in 1974, the Garvey Fellowship has attracted thousands of young scholars, many of whom have subsequently become noted academicians, journalists, and business leaders. Beginning in 2003, the Garvey Fellowships also offers awards in a separate category for junior faculty members (untenured). STUDENT DIVISION: College students up to the age of 35: First Prize: $2,500 Second Prize: $1,500 Third prize: $1,000 FACULTY DIVISION: Junior faculty members up to the age of 35 and not yet tenured: First Prize: $10,000 Second Prize: $5,000 Third Prize: $1,500 ELIGIBILITY: Student Division: Any student 35 years or younger enrolled at a recognized college or university anywhere in the world. Junior Faculty Division: Untenured college or university teachers, Assistant Professor or higher, 35 years or younger. LENGTH (double-spaced typescript): Student essays must not exceed 3,000 words. Teacher essays must be 5,000 to 8,000 words long. DEADLINE: May 1, 2005

Posted by Lawrence Solum at 3/25/2005 09:46:00 AM

Wendel on Legal Ethics & the Separation Thesis W. Bradley Wendel (Cornell Law School) has posted Legal Ethics and the Separation of Law and Morals on SSRN. Here is the abstract:

This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity. The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers' defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.

Posted by Lawrence Solum at 3/25/2005 09:40:00 AM

Dent on Racial Trust George W. Dent, Jr. (Case Western Reserve Law School) has posted Race, Trust, Altruism and Reciprocity (Richmond Law Review, Vol. 39, May 2005) on SSRN. Here is the abstract:

Trust, altruism and reciprocity are attracting growing attention from scholars. Interest began with psychological experiments showing that people often are altruistic, trust others, and reciprocate the benevolence of others far more than economic models of "rational" human selfishness predict. These findings inspired social scientists to discover what factors promote or hinder cooperation. Legal scholars have employed this learning to determine how the law does or could facilitate or discourage cooperation in many contexts, including business transactions and the workplace. The influence of race on cooperation has been studied in specific areas, but so far no one has considered how the new learning might improve race relations and racial equality. This article makes an initial effort to do so. Trust in others is essential to human interaction, especially in dealings too complex for the parties’ rights and duties to be detailed in writing. Trust grows when each side's contribution is reciprocated by the other's, but not if reciprocity is withheld, and trust shrinks rapidly if one party abuses the other's trust by acting opportunistically. People often eschew gain and help the needy, but altruism also dwindles if the recipients do not seem truly needy, or do not try to help themselves, or if others who could help refuse to do so and "free ride" on those who are altruistic. The dearth of racial trust in America is dramatically manifested in the separation so often chosen by both blacks and whites. Distrust blocks cooperation and altruism between the races and obstructs efforts to solve virtually every social problem. Part I of this article reviews the learning about trust, altruism and reciprocity. Part II applies this knowledge to better understand racial division and inequality in America and why many policies and positions do not ameliorate these ills and indeed may exacerbate them. Part III discusses our goals in race relations. Part IV prescribes principles to foster interracial trust. Part V proposes some specific steps to reduce racial inequality while building trust.

Posted by Lawrence Solum at 3/25/2005 09:38:00 AM

Thursday, March 24, 2005

Thursday Calendar: Updated

Posted by Lawrence Solum at 3/24/2005 01:11:00 PM

The Economist on the Grokster Case Check out Grokster and StreamCast face the music over at Economist.com. Here is a taste:

The music business should have stuck by Thomas Edison’s technology if it wanted to avoid the threat of piracy. His wax cylinders could record a performance but could not be reproduced; that became possible only with the invention of the flat-disc record some years later. On Tuesday March 29th, America’s Supreme Court will begin to hear testimony in a case brought by the big entertainment companies that is intended to stop the illegal downloading of copyright-protected music and film. The industry’s target is the peer-to-peer (P2P) technology that allows the swapping of files directly over the internet. The defendants in the case are two firms that make file-sharing software: StreamCast Networks and Grokster.

Posted by Lawrence Solum at 3/24/2005 01:05:00 PM

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