Legal Theory Blog |
|
 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? (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 
|
Wednesday, November 30, 2005
Scruton Interview Check out The Joy of Conservatism: An Interview with Roger Scruton (Part I) over at Right Reason. Here's a taste:
Markel on Executing the Innocent Check out Innocents Lost by Dan Markel on Slate. Here's a taste:
Seidman on the Israeli Supreme Court, the Palestinian Uprising, and Administrative Review Guy I. Seidman (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Judicial Administrative Review in Times of Discontent: The Israel Supreme Court and the Palestinian Uprising (Israel Affairs, Forthcoming) on SSRN. Here is the abstract:
Frischmann on Demsetzian Copyright Brett M. Frischmann (Loyola University of Chicago, Law School) has posted Evaluating the Demsetzian Trend in Copyright Law on SSRN. Here is the abstract:
Curran on Comparative Law & Language Vivian Grosswald Curran (University of Pittsburgh - School of Law) has posted Comparative Law and Language (OXFORD HANDBOOK OF COMPARATIVE LAW, Reinhard Zimmermann and Mathias Reimann, eds., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
Tuesday, November 29, 2005
Utset on Time-Inconsistent Misconduct Manuel A. Utset (University of Utah - S.J. Quinney College of Law) has posted A Model of Time-Inconsistent Misconduct: The Case of Lawyer Misconduct (74 Fordham L. Rev. __ (2005) (forthcoming)) on SSRN. Here is the abstract:
Blumm, Dunning, and Reed on Public Trust Michael C. Blumm , Harrison Dunning and Scott W. Reed (Lewis & Clark Law School , University of California, Davis and Stanford Law School) have posted Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794 (Ecology Law Quarterly 461, Vol. 24, No. 3, 1997) on SSRN. Here is the abstract:
Call for Papers: Pramatism in Granada
Monday, November 28, 2005
Hasen on the Future of Election Law Election law guru Rick Hasen has posted No Exit? The Roberts Court and the Future of Election Law on SSRN. Here is the abstract:
Sunday, November 27, 2005
Legal Theory Lexicon: Fact and Value
Hume on Deriving an Is from an Ought The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "is" from an "ought." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:
Conclusion: Therefore, the United States ought to withdraw from Iraq.
Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy. Conclusion: Therefore, the United States ought to withdraw from Iraq. G.E. Moore on the Naturalistic Fallacy The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-called naturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition. The Entanglement of Fact and Value It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what the distinction between thick and thin ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thick ethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?" Anyone who believes there is a sharp line that separates the realm of facts from the realm of values must produce an account of thick ethical terms, because such terms seem to straddle the line. Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law! If thick moral terms establish the entanglement of facts and values, that is only one step towards an adequate account of the fact-value distinction. For the purposes of law students with an interest in legal theory, awareness of the issues is probably sufficient. If you develop a deep interest in the foundations of normative jurisprudence, you will want to pursue these topics in much greater depth. Conclusion Arguments about what the law should be are normative; normative legal theory might be considered a particular branch of political and moral philosophy. So legal theorists need to be aware of the fact/value distinction. As a rule of thumb, be wary of arguments that seem to confuse facts and values or to derives oughts from ises. If you do decide to cross the line, then be aware of the criticisms that may come your way! Saturday, November 26, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Arguing Marbury V. Madison, edited by Mark V. Tushnet. Here is a blurb:
Download of the Week The Download of the Week is James Madison's Celebrated Report of 1800: The Transformation of the Tenth Amendment by Kurt Lash. Here is the abstract:
Friday, November 25, 2005
Friday Calendar
Oxford Centre for Competition Law & Policy: Edward Flippen, US Electric Deregulation after California, Enron, and the Worst Blackout in US History Ristroph on Proportionality as Limit on Government Power Alice Ristroph (University of Utah - S.J. Quinney College of Law) has posted Proportionality as a Principle of Limited Government (Duke Law Journal, Vol. 55, 2005) on SSRN. Here is the abstract:
Nicolas on the Number of Justices on the Supreme Court Peter Nicolas (University of Washington School of Law) has posted Nine, of Course: A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court (New York University Journal of Law & Liberty, Forthcoming) on SSRN. Here is the abstract:
Piomelli on Collaborative Lawyering Ascanio Piomelli (University of California, Hastings College of the Law) has posted The Democratic Roots of Collaborative Lawyering on SSRN. Here is the abstract:
French on the Problem of the Future Susan Fletcher French (University of California, Los Angeles - School of Law) has posted Perpetual Trusts, Conservation Servitudes, and the Problem of the Future on SSRN. Here is the abstract:
Symposium Announcement: International Law & the State of the Constitution at Columbia
Thursday, November 24, 2005
Thursday Calendar
Oxford Public International Law Discussion Group: Thomas Skouteris, 'The New Tribunalism': Liberal Sensibilities in the Age of Adjudication Oxford Financial Law Discussion Group: Professor Niamh Moloney, "The Hedge Fund Challenge as a Test Case for EC Securities Regulation" University College, London, Centre for Law and the Environment and the Journal of Environmental Law: The Hon. Sir Francis Jacobs, ‘The European Court of Justice and the Environment: What Role for the Court in a Global Drama?’ University College, London, Current Legal Problems Lecture: Professor Jeremy Phillips (UCL), ‘How to Win at Monopoly: Applying Game Theory to the Enforcement of Intellectual Property Rights’ Thanksgiving This Thanksgiving, I would like to thank the many teachers and mentors who have enabled and enriched my life as teacher, scholar, and thinker.
Thanks to Congressman Brad Sherman, my best friend in 8th grade, who convinced me to join the Mark Keppel High School Debate Team. Thanks to Jewel Bridges, my high school debate coach, who really had no idea what to do with me. Thanks to Marilyn Young, who played a recording of Larry Tribe in the final round of the college national debate championships. At age 14, when I learned that Tribe was then a young professor at Harvard Law School, I decided that I wanted to be a law professor--a lucky if somewhat improbable dream. Thanks to Mr. Katz, my high school American History teacher, who had 16 and 17 year olds reading classic articles from history and political science about constitutional history. I took it for granted. Thanks to Geoff Goodman, Dennis Winston, and King Schofield, to John DeBross, John Wallen, and Lee Garrison, to Donn Parson, David Zarefsky, James Unger, and Lee Polk, to Jay Hurst and David Kent, and many many others on the "national circuit." I learned so much. Thanks to Rogers Albritton--the best teacher I've ever had. Thanks to Warren Quinn, Gregory Kavka, and Jean Hampton. Warren, Greg, and Jean were extraordinary philosophers, associated with the UCLA philosophy department in the late 70s and early 80s. All three are now gone, long before their times. Each of them encouraged me when I needed encouragement. Thanks to Philippa Foot--I use something I learned from Philippa almost every day of my professional life. Thanks to John Rawls, who was generous beyond all reason. He set the standard to which I aspire. Thanks to Frank Michelman and Lea Brilmayer. First year contracts: Lea taught the first semester; Frank taught the second. Perhaps some of my readers will be able to guess that there was quite a contrast. Ex ante versus ex post, anyone? Thanks to Andy Kaufman, Charles Nesson, Charles Fried, Roberto Unger, Lloyd Weinreb, Louis Kaplow, Arthur Miller, and David Westfall. Most especially, thanks to Steve Marzen, from whom I learned the law. And to Archibald Cox--who single-nandedly provided a window into what was best about legal education in another era. Shiffrin on Bollinger on Academic Freedom Check out Steve Shiffrin's Bollinger, Academic Freedom, and Tolerance on Left2Right. Here's a taste:
Wednesday, November 23, 2005
Wednesday Calendar
Philosophy of Education (London): Mitja Sardoc (IOE), Liberal Civic Education Re-examined Northwestern Law & Economics: Kathy Spier, Professor of Law and Professor of Management and Strategy, Northwestern University, "Strategic Judgment Proofing" University Collgege, London, International Law Association: Dr Matthew Craven, SOAS; Catriona Drew, SOAS; Dr Susan Marks, Cambridge University; Dr Gerry Simpson, LSE, ‘The Empire Strikes Back? Colonialism, empire, self-determination and international law’ Lash on Madison's Tenth Amendment Kurt Lash (Loyola, Los Angeles) has posted James Madison's Celebrated Report of 1800: The Transformation of the Tenth Amendment (forthcoming George Washington Law Review) on SSRN. Here is the abstract:
Lazarus on Deliberative Democracy & Environmental Law Richard James Lazarus (Georgetown University Law Center) has posted Congressional Descent: The Demise of Deliberative Democracy in Environmental Law (Georgetown Law Journal, Vol 94, No. 2, Forthcoming) on SSRN. Here is the abstract:
Call for Papers: "Making Ethics Visible"
Program Announcement: PhD in Information, Communication, and the Social Sciences
Tuesday, November 22, 2005
Tuesday Calendar
NYU Colloquium in Law, Economics & Politics: Richard Pildes (New York University School of Law) with Daryl Levinson (Harvard Law School), "Separation of Parties, Not Powers" Oxford Human Rights Discussion Group: Kate Hofmeyr and Tarunabh Khaitan, Judicial Enforcement of Positive Rights in India and South Africa: A Comparative Perspective Oxford EC Law Discussion Group: Pavlos Eleftheriadis, The Idea of a European Constitution Oxford Intellectual Property Research Centre: Henry Carr, Intellectual Property in the New Millennium: Claims & Shapes: New Boundaries in IP Law Tauber on the Bill of Rights in the Territories Alan Tauber (University of South Carolina) has posted The Empire Forgotten: The Application of the Bill of Rights to U.S. Territories on SSRN. Here is the abstract:
Professional Suicide? Updated and Moved to the Top of the Blog Check out Attack of the Career-Killing Blogs by Robert S. Boynton on Slate. A taste:
Tussey on File Sharing Deborah S. Tussey (Oklahoma City University School of Law) has posted Music at the Edge of Chaos: A Complex Systems Perspective on File Sharing (Loyola University Chicago Law Journal, 2005) on SSRN. Here is the abstract:
Bateup on Constitutional Dialogue Christine Bateup (New York University - School of Law) has posted The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue (71 Brooklyn Law Review, 2006) on SSRN. Here is the abstract:
Lazarus on Natural Laws, Human Nature, and Environmental Law Richard James Lazarus (Georgetown University Law Center) has posted Human Nature, the Laws of Nature, and the Nature of Environmental Law (Virginia Environmental Law Journal, Vol. 24, No. 3, Forthcoming) on SSRN. Here is the abstract:
Epstein & Segal on the Dynamics of Supreme Court Ideology The Washington Post has a nifty op/ed, Changing Room The Court's Dynamics Have a Way of Altering a Justice's Approach to the Law by Lee Epstein and Jeffrey A. Segal
Monday, November 21, 2005
Monday Calendar
Columbia Legal Theory Workshop: Abner Greene of Fordham Law School, Excerpts from "Against Obligation:A Theory of Permeable Sovereignty" Columbia Law & Economics: Louis Kaplow, Harvard Law School, "Taxation of Families" Georgetown Environmental Research Workshop: Professor J.B. Ruhl, Florida State University School of Law, "The Effects of Wetlands Mitigation Banking On Humans--A Case Study of Ecosystem Services Policy Failure" Aristotelian Society, London: Antony Duff, Answering for Crime. If you are interested in criminal law theory, don't miss a chance to hear Duff! Oxford Centre for Socio-Legal Studies: Dr Matthew Gibney, Security, Citizenship and the Law: regulating boundaries: Beyond the bounds of responsibility : Western States and measures to prevent the entry of refugees UCLA Law: Dennis Ventry, Visiting Scholar in Taxation, UCLA School of Law, Program in Business Law & Policy, For Richer, For Poorer: How Tax Policymakers have Protected and Punished American Families, 1913-2005 University of Texas Law: Albert Yoon, Northwestern University, "Offer-of-Judgment Rules and Civil Litigation: An Empirical Study of Automobile Insurance Litigation in the East" Call for Papers: BSET 2006
Sunday, November 20, 2005
Legal Theory Calendar
Columbia Legal Theory Workshop: Abner Greene of Fordham Law School, Excerpts from "Against Obligation:A Theory of Permeable Sovereignty" Columbia Law & Economics: Louis Kaplow, Harvard Law School, "Taxation of Families" Georgetown Environmental Research Workshop: Professor J.B. Ruhl, Florida State University School of Law, "The Effects of Wetlands Mitigation Banking On Humans--A Case Study of Ecosystem Services Policy Failure" Aristotelian Society, London: Antony Duff, Answering for Crime. If you are interested in criminal law theory, don't miss a chance to hear Duff! Oxford Centre for Socio-Legal Studies: Dr Matthew Gibney, Security, Citizenship and the Law: regulating boundaries: Beyond the bounds of responsibility : Western States and measures to prevent the entry of refugees UCLA Law: Dennis Ventry, Visiting Scholar in Taxation, UCLA School of Law, Program in Business Law & Policy, For Richer, For Poorer: How Tax Policymakers have Protected and Punished American Families, 1913-2005 University of Texas Law: Albert Yoon, Northwestern University, "Offer-of-Judgment Rules and Civil Litigation: An Empirical Study of Automobile Insurance Litigation in the East"
NYU Colloquium in Law, Economics & Politics: Richard Pildes (New York University School of Law) with Daryl Levinson (Harvard Law School), "Separation of Parties, Not Powers" Oxford Human Rights Discussion Group: Kate Hofmeyr and Tarunabh Khaitan, Judicial Enforcement of Positive Rights in India and South Africa: A Comparative Perspective Oxford EC Law Discussion Group: Pavlos Eleftheriadis, The Idea of a European Constitution Oxford Intellectual Property Research Centre: Henry Carr, Intellectual Property in the New Millennium: Claims & Shapes: New Boundaries in IP Law
Philosophy of Education (London): Mitja Sardoc (IOE), Liberal Civic Education Re-examined Northwestern Law & Economics: Kathy Spier, Professor of Law and Professor of Management and Strategy, Northwestern University, "Strategic Judgment Proofing" University Collgege, London, International Law Association: Dr Matthew Craven, SOAS; Catriona Drew, SOAS; Dr Susan Marks, Cambridge University; Dr Gerry Simpson, LSE, ‘The Empire Strikes Back? Colonialism, empire, self-determination and international law’
Oxford Public International Law Discussion Group: Thomas Skouteris, 'The New Tribunalism': Liberal Sensibilities in the Age of Adjudication Oxford Financial Law Discussion Group: Professor Niamh Moloney, "The Hedge Fund Challenge as a Test Case for EC Securities Regulation" University College, London, Centre for Law and the Environment and the Journal of Environmental Law: The Hon. Sir Francis Jacobs, ‘The European Court of Justice and the Environment: What Role for the Court in a Global Drama?’ University College, London, Current Legal Problems Lecture: Professor Jeremy Phillips (UCL), ‘How to Win at Monopoly: Applying Game Theory to the Enforcement of Intellectual Property Rights’
Oxford Centre for Competition Law & Policy: Edward Flippen, US Electric Deregulation after California, Enron, and the Worst Blackout in US History Legal Theory Lexicon: Conduct Rules and Decision Rules
Example? Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content. But how can we excuse ignorance of the law without altering the conduct rule? One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the intentional content is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law. Saturday, November 19, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Sandra Day O'Connor : How the First Woman on the Supreme Court Became Its Most Influential Justice by Joan Biskupic. Here's a blurb:
Download of the Week The Download of the Week is Information Asymmetries and the Rights to Exclude by Lior Strahilevitz. Here is the abstract:
Friday, November 18, 2005
Leiter on Hiring Tactics Read Brian Leiter's post A New Hiring Tactic: Reader Reaction Sought. Here is ataste:
Friday Calendar
Washington University: Conference on the Rehnquist Court & the First Amendment Fordlam Law: EXPLORING THE LIMITS: Recent Challenges to the Scope of IP Law. UCLA Law: David M. Driesen, Angela R. Cooney Professor, Syracuse University College of Law, "Regulatory Reform: The New Lochnerism?" Columbia Law School: Conference, Shareholder Democracy: Its Promises and Perils. University of Georgia Law: Jedediah S. Purdy (Duke University), The American Transformation of Waste Doctrine: A Pluralist Interpretation University of Texas Law: Seth Chandler, University of Houston, "The Network Structure of the Law" Villanova Law: Marc Galanter, University of Wisconsin Law School University of Toronto: Conference, The Supreme Court of Canada and the General Anti-Avoidance Rule: Tax Avoidance after Canada Trustco and Mathew National Tax Association (Miami, FL): 98th Annual Conference on Taxation. Lipshaw on "Rational Frogs" Jeff Lipshaw has posted a draft of Reason, Self-Deception and Rational Frogs: Reconciling Comprehension and Responsibility in Law and Business Ethics on SSRN. Here is the abstract:
McGowan on Open Source Check out There's no such thing as free software (And it's a good thing, too) by David McGowan on First Monday. Here's a taste:
Lazarus on Property Rights in the Supreme Court Richard James Lazarus (Georgetown University Law Center) has posted The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court on SSRN. Here is the abstract:
Blumm & Ritchie on Ownership of Wildlife Michael C. Blumm and Lucus Ritchie (Lewis & Clark Law School and Lewis & Clark College - Law School) have posted The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife (Environmental Law, Vol. 35, No. 4, 2005) on SSRN. Here is the abstract:
Jacobi on Medicaid John Jacobi (Seton Hall School of Law) has posted Dangerous Times for Medicaid on SSRN. Here is the abstract:
|