Legal Theory Blog

All the theory that fits!


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.

This page is powered by Blogger. Isn't yours?
Tuesday, May 31, 2005
Book Announcement: Rossi on Regulatory Bargaining and Public Law
    Jim Rossi, Regulatory Bargaining and Public Law (Cambridge University Press, 2005), ISBN 0521838924 – available June 1, 2005. In this book, Professor Rossi explores the implications of a bargaining perspective for institutional governance and public law in deregulated industries, such as electric power and telecommunications. Leading media accounts blame deregulated markets for failures in competitive restructuring policies, as with the California electricity deregulation fiasco. However, Professor Rossi argues that governmental institutions, often influenced by private stakeholders, share blame for the defects in deregulated markets. Among the issues address in this book are consumer service obligations, constitutional takings jurisprudence, the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust enforcement, and federalism disputes. Professor Rossi’s book warns against a ‘deference trap’ leading courts to passive roles in conflicts involving political institutions, such as regulatory agencies and states. To address such concerns, Professor Rossi’s book suggests a unified set of default rules to guide courts in the United States and elsewhere as they address the complex issues that will come before them in a deregulatory environment. The first part of the book explores the minimal role that judicial intervention played for much of the twentieth century in public utility industries and how deregulation presents new opportunities and challenges for public law. The second part of the book explores the role of public law in a deregulatory environment, focusing on the positive and negative influences it creates for the behavior of private stakeholders and public institutions in a bargaining-focused political process. Jim Rossi is Harry M. Walborsky Professor of Law and Associate Dean for Research at Florida State University College of Law. Advanced Praise:
      Regulatory Bargaining and Public Law is a must-read for anyone with a serious interest in the modern law of regulation. Rossi analyzes the new forms of regulation – misnamed “deregulation” in the popular press and in much academic work – using techniques originally developed for analyzing contracts. Rossi’s approach yields fresh, new insights. - Matthew Spitzer, University of Southern California School of Law Jim Rossi has thought long and creatively about the role of courts in our evolving deregulated economy. He warns against a “deference trap” leading courts to passive roles in conflicts involving political institutions like regulatory agencies and states. When doctrines like the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust, and federal preemption traditionally signal “hands off” to the courts, a new sensitivity to incentives and the context of institutional bargaining are sorely needed. -Judge Richard D. Cudahy, U.S. Court of Appeals for the 7th Circuit As Professor Rossi shows, the term "deregulation" may be the greatest misnomer in the legal lexicon, for rather than eliminating regulation it replaces one regulatory scheme with a new and even more complex one. Regulatory Bargaining and Public Law analyzes the resulting interactions between regulators, industry, and other groups, demonstrating that these interactions can either further or frustrate the goal of consumer welfare. Public policy analysts, legal scholars, and students of political economy will all find the book an invaluable resource. -Daniel Farber, University of California, Berkeley Jim Rossi's Regulatory Bargaining and Public Law should be on the bookshelf of everyone interested in the regulatory process, antitrust, and public law. Beginning with a historical perspective that stretches back to the 1830s and the Charles River Bridge case, Rossi carries our conception of regulated industry away from traditional neoclassical notions of natural monopoly and rate-of-return regulation to more Coasian ideas that each instance of regulation is a special kind of bargain with the sovereign. That is, rather than taking areas of enterprise out of the market, so to speak, regulation is simply a special case of market bargaining. In the process Rossi explores the consequences of deregulation and other alternatives to traditional cost-of-service rate making. Of particular concern is the divergence of public and private interests that can occur when firms and the interests groups aligned with them try to obtain the best deal that they can through the regulatory bargaining process. This model helps Professor Rossi develop a cogent set of explanations for what went wrong in certain cases of deregulatory failure, such as the California electric power crisis. -Herbert Hovenkamp, University of Iowa

Smith on Disowning Our Past Steven Douglas Smith (University of San Diego School of Law) has posted Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past? on SSRN. Here is the abstract:
    Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that [w]e are a religious people whose institutions presuppose a Supreme Being. What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's Supreme Being assertion be reconciled with the no endorsement prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. Douglas lecture at Gonzaga Law School, addresses those questions.
Everything I read by Smith impresses and enlightens me!

Kamisar on Dickerson Yale Kamisar (University of San Diego - School of Law) has posted Dickerson v. United States: The Case that Disappointed Miranda's Critics - And then its Supporters on SSRN. Here is the abstract:
    It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this paper I want to focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely in violation of Miranda's "prophylactic rules." This terminology has plagued the Miranda doctrine and puzzled and provoked many commentators since then - Justice Rehnquist utilized this label to describe and to diminish Miranda - and he was the first Justice ever to do so - thirty-one years ago.

Galle on Independent Executive Authority to Interpret the Constitution Brian Galle has posted The Justice of Administration: Judicial Responses to Executive Claims of Independent Authority to Interpret the Constitution on SSRN. Here is the abstract:
    There is a growing trend in federal agencies towards explicit consideration of the Constitution, and the principles of justice that it suggests. In controversies ranging from the Justice Department's challenge to the Oregon Death With Dignity Act to IRS regulation of the political activities of non-profits, agencies have come more and more to rely on their own view of what the Constitution requires or implies. Academic commentary almost universally lauds this move toward interpretive autonomy, if not the specific interpretations that the current administration has offered. Advocates of republicanism and cooperative regulation welcome the opportunities for wider public deliberation on constitutional issues that agency interpretation offers. And critics of this Supreme Court on both left and right are eager to find any other authority willing to countenance a different substantive view of rights, whether that be a right to be free of discrimination or a right to life. At the same time, the Court increasingly has suggested that the legitimacy of such interpretations may be in doubt. In City of Boerne v. Flores and similar cases it rejects, almost disdainfully, the notion that Congress might be a worthy interpretive partner in elaborating constitutional norms. And its opinion in a case holding that agency regulations prohibiting disparate impact discrimination are not privately enforceable might be read to imply that there is a serious constitutional doubt whether an agency can exercise the sort of independent constitutional interpretive authority Boerne seems to condemn. Tax practitioners may recall similar doubts about the Service's authority dating back to the controversy over Bob Jones University. This Article strives to explain the sharp divergence between critical consensus and judicial reality, with the aim of finding a way to justify cooperation and republican deliberation to a doubting Court. I argue that existing accounts fail to explain judicial attitudes because they do not consider the unique institutional needs of federal judges. Most significantly, judicial claims to sole authority to interpret the Constitution may be part of the constitutive rhetoric of judging, through which the judiciary builds and entrenches a set of norms for its own behavior. These norms, when internalized by judges, help to distinguish judicial behavior from the ordinary politics that judicial review aspires to limit. I conclude, however, that judicial rhetoric, even in combination with other plausible arguments in favor of exclusivity, is persuasive in at most a small fraction of the constitutional cases that come before courts. I therefore propose a method, based on a survey and synthesis of those arguments, that a court can use in deciding for any given agency interpretation whether the agency's decision is a permissible, complementary elaboration or an impermissible intrusion. I then show how the method offers important insights into, for example, the disputes over disparate impact regulations and the IRS's oversight of non-profit entities.

Book Announcement: Economics for Lawyers
    Economics for Lawyers by Richard A. Ippolito To read the entire book description or a sample chapter, please visit: Whether dealing with contracts, tort actions, or government regulations, lawyers are more likely to be successful if they are conversant in economics. Economics for Lawyers provides the essential tools to understand the economic basis of law. Through rigorous analysis illustrated with simple graphs and a wide range of legal examples, Richard Ippolito focuses on a few key concepts and shows how they play out in numerous applications. Cloth | $65.00 / £41.95 | ISBN: 0-691-12177-X

Call for Papers: Ancient Philosophy in the Contemporary World
    CALL FOR PAPERS "The Value of Ancient Philosophy for the Contemporary World" A Special Issue of PHILOSOPHY IN THE CONTEMPORARY WORLD Special Issue Editor: Robert Metcalf, University of Colorado, Denver Journal Editor: Andrew Fiala, California State University, Fresno How may we retrieve the insights of Greek philosophy for the contemporary world? How have contemporary thinkers appropriated ancient philosophy, and what possibilities are left open for different appropriations? This special issue of the journal, Philosophy in the Contemporary World, will engage these sorts of questions, and will feature contributions from leading scholars in ancient philosophy. In accord with the aims of the journal, essays in response to this call for papers should be written for a wide audience of philosophers who are interested in the various ways that the history of philosophy can be brought to bear on contemporary issues. Essays on any figure/topic in ancient philosophy are welcome, so long as they are 3000-4000 words in length (not including endnotes). This special issue is scheduled for publication early in 2006. Submission Deadline: NOVEMBER 15, 2005 Prepare submission for blind review and attach it as a Word document to an email sent to Include an abstract of 150 words or less.

Monday, May 30, 2005
Onwuachi-Willig on the "Marriage Cure" Angela Onwuachi-Willig (University of California, Davis - School of Law) has posted The Return of the Ring (California Law Review, Vol. 93, 2005) on SSRN. Here is the abstract:
    In 1996, the United States Congress began its imposition of a marital solution to poverty when it enacted the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"). Nearly ten years later, Congress has strengthened its commitment to marriage as a cure for welfare dependency with proposals such as the Personal Responsibility, Work, and Family Promotion Act of 2005. If passed, this bill would provide 1.5 billion dollars for pro-marriage programs and require each state to explain how its welfare program will encourage marriage for single mothers who receive public aid. With these proposals, Congress has continued to construct poverty as a private rather than public problem. These programs, designed to move poor individuals into the husband-wife, normatively heterosexual dyad, are part of a long-term plan for privatizing economic responsibility for children in impoverished households. This Article situates recent welfare debates concerning the Temporary Assistance to Needy Families ("TANF") program, in particular those debates concerning the proposal of the "marriage cure," within a post-colonial context and examines, both historically and currently, how the law of marriage has been used in the United States as a tool for "civilizing" outsiders. Part I analyzes how marriage laws were used in the post-bellum period as a means of minimizing states' economic responsibility to provide for newly-emancipated Blacks, especially former slave children. Part II scrutinizes the racialization of welfare recipients in the United States in recent history and dissects current and proposed TANF marriage-promotion provisions to reveal how marriage and law are again being operated as tools for domesticating welfare queens. Finally, this Article concludes by exploring alternatives to this proposed marriage cure to poverty.

Matasar on the Fall of American Legal Education Richard Allan Matasar (New York Law School) has posted The Rise and Fall of American Legal Education (New York Law School Law Review, Vol. 49 No. 2, 2004-2005) on SSRN. Here is the abstract:
    American legal education has been enormously successful, fueled by high enrollment, high tuition, and a seemingly endless supply of new students. This article suggests that the model is not sustainable over the long run given the current model of education and financing. Other than the handful of highly prestigious or very low cost schools, most institutions face a precarious future. The issue is one of value; prospective students, faculty, and the public look to prestige in making decisions. This leads schools to engage in a race for higher rankings. In the short-run, schools can dress their outward appearance, but doing so fails to improve their actual quality. This failure ultimately places the school in jeopardy if costs continue to rise and job prospects do not keep pace with increased cost. The article concludes that most schools have neither the prestige nor low cost to survive without providing real value to their students. They will fail unless they radically change their business models and adopt new business techniques, including reducing the cycle time to adulthood, diversifying their customer bases, joining international consortia, partnerships, and distance learning projects, and considering mergers, acquisitions, and going out of business sales. The article proposes that schools establish real missions to build better professionals.

Lieberman on Bad Writing Jethro Lieberman (New York Law School - Law) has posted Bad Writing: Some Thoughts on the Abuse of Scholarly Rhetroic (New York Law School Law Review, Vol. 49, pp. 649-664, 2004-2005) on SSRN. Here is the abstract:
    Like most kinds of writing, academic writing rarely shines, but far more often than ordinary writing scholarly prose is murky and impenetrable. This brief jeu d'esprit considers several forms of bad writing, rejecting the claim, increasingly made in academic quarters, that "difficult writing" is necessary to the scholarly enterprise. Bloated, foggy, and enigmatic prose masquerades as profundity that escapes conventional mental grooves. In fact it is useless, unethical, and taken far enough, evil.

Sunday, May 29, 2005
Legal Theory Lexicon: Legal Theory, Jurisprudence, and the Philosophy of Law
    Introduction The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is “jurisprudence” a synonym for “philosophy of law” or are these two overlapping but distinct fields? Is “legal theory” broader or narrower than jurisprudence? And why should we care about this terminology?
    As always, this entry in the Legal Theory Lexicon series is aimed at law students, especially first-year law students with an interest in legal theory.
    Who Cares About Terminology Why should we care about terminology? Who cares what goes under the label “jurisprudence” or “philosophy of law” or “legal theory”? Well, of course, there is a sense in which we shouldn’t care at all. What matters in a deep way is the substance of theorizing about law. On the other hand, these labels are important for a different reason—because their use tells us something about the sociology of the academy. When people argue about what “jurisprudence” really is, the terminological dispute may reflect a conflict over “turf” and “authority.”
    Disciplinary Lines and Theorizing About Law Very broadly speaking, the turf of high-level legal theory is disputed by at least four groups. First and (still) foremost are the academic lawyers, those whose graduate-level training is exclusively (or almost exclusively) in law as it is taught in the legal academy. Second, there are the economists—some of whom are primarily (or exclusively) trained in economics; while others legal economists were trained primarily by law professors. Third, there is the “law and society” movement—broadly defined as the study of law from a social science (but noneconomic) perspective. Law-and-society theorists may have been trained in political science or sociology or criminology, but many may have been trained in the legal academy as well. Fourth, there is the law-and-philosophy movement, with “analytic legal philosophy” as the focal point of a variety of philosophical approaches. Many philosophers of law have formal philosophical training, but some were trained in law or political theory.
    So, what about the turf wars? Those who use the phrase “philosophy of law” tend to be philosophers, while the term “jurisprudence” is more strongly associated with the legal tradition of theorizing about the law, but there is frequently a blurring of the these two terms. From the 1960s on, a single figure had a dominant influence in defining the content of “philosophy of law” courses in philosophy departments and “jurisprudence” courses in the law schools—that figure was H.L.A. Hart. Of course, there were many, many exceptions, but for quite a long time the standard course in both disciplines included as a central, organizing component, an examination of Hart’s ideas, either The Concept of Law, Hart’s great book, or the Hart-Fuller debate in the Harvard Law Review. When I was a student in the 70s and early 80s, I thought that “jurisprudence” and “philosophy of law” were synonymous—and that both were references to analytic philosophy of law in the tradition of Hart and included figures like Dworkin and Raz. One consequence of the “philosophicalization” of jurisprudence was the move to fold moral and political philosophy into jurisprudence. I have a very clear memory of browsing the law shelves of the textbook section of the UCLA bookstore in the late 70s, and discovery John Rawls’s A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia as the texts for the jurisprudence course. I have always assumed that similar courses were offered elsewhere, although I could be wrong about that.
    Philosophy is important as a matter of the sociology of the legal academy, but it is not the only important interdisciplinary influence: economics, political science, and sociology, each of these also has a major influence. Given that the “jurisprudence” course was “captured” by philosophers, how could these other approaches to legal theorizing express their theoretical framework in the law school curriculum. One mode of expression was the alternative theory course—“Law and Economics” and “Law and Society” were the two leading competitors of “Jurisprudence.” Moreover, the tradition of distinctively legal thinking about high legal theory has never died out. American Legal Realism was largely the product of the law schools—although many other disciplines figured in the realist movement. Likewise, Critical Legal Studies was largely a phenomenon of the legal academy. Some jurisprudence or legal theory courses incorporate philosophy of law, law and economics, and law and society into a course that is taught from a distinctively legal point of view.
    What can we say about our three terms—jurisprudence, philosophy of law, and legal theory?
    Jurisprudence My sense is that most Anglo-American legal academics view “jurisprudence” as mostly synonymous with “philosophy of law”. This is not a unanimous view. There is still a lingering sense of “jurisprudence” that encompasses high legal theory of a nonphilosophical sort—the elucidation of legal concepts and normative theory from within the discipline of law. Moreover, in other legal cultures, for example, in Europe and Latin America, my sense is that the move to identify jurisprudence with philosophy of law never really took root.
    Philosophy of Law The meaning of the phrase “philosophy of law” is inevitably tied up in the relationship between the two academic disciplines—philosophy and law. In the United States and the rest of the Anglophone world, “philosophy of law” is a subdiscipline of philosophy, a special branch of what is nowadays frequently called “normative theory.” Of course, there are many different tendencies within academic philosophy generally and the philosophy of law in particular. Still, the dominant approach to philosophy of law in the Anglophone world is represented by “analytic legal philosophy,” which might be defined by the Hart-Dworkin-Raz tradition on the one hand and by the larger Austin-Wittgenstein-Quine-Donaldson-Kripke tradition on the other.
    Coexisting with the analytic tradition in the philosophy of law are many other philosophical approaches. These include Hegelianism, neo-Thomism, Marxism, as well as the contemporary continental philosophical tradition, ranging from Habermas (with close affinities to the analytic tradition) to Foucault and Derrida (with much more tenuous links).
    The philosophy of law covers a lot of ground. An important line of development focuses on the “what is law?” question, but much contemporary legal philosophy is focused on normative questions in specific doctrinal fields. The application of moral and political philosophy to questions in tort and criminal law is an example of this branch of contemporary legal philosophy.
    Legal Theory Legal theory is a much broader and encompassing term, encompassing the philosophy of law and jurisprudence as well as theorizing from a variety of other perspectives, including law and economics and the law and society movement. In my opinion, “legal theory” is currently the best neutral term for referring to legal theorizing, broadly understood. It allows us to avoid the turf wars and sectarian disputes that make the word “jurisprudence” somewhat problematic.
    Conclusion When you start theorizing about law, you are likely to adopt some term or phrase to describe your activity. “I’m doing jurisprudence,” or “I’m a philosopher of law.” I hope that this entry in the Legal Theory Lexicon will help you use these labels with some awareness of their history and the controversies that surround their use.

Saturday, May 28, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends a pair of books, Transformation of American Law, 1780-1860 and The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy, both by Morton J. Horwitz. Here´s a blurb:
    Awarded the Bancroft Prize in American History in 1978, Morton J. Horwitz's The Transformation of American Law, 1780-1860 is considered one of the most significant works ever published in American legal history. Since its publication in 1977, it has become the standard source on early nineteenth century American law. In this monumental book, Morton J. Horwitz offers a sweeping overview of the emergence of our national (and modern) legal system from English and colonial antecedents. He begins with the common law, which emerged during the eighteenth century as the standard doctrine with which to solve disputes in an egalitarian manner. He shows that the turning point in the use of common law came after 1790, when the law was slowly transformed to favor economic growth and development and the courts began to spur economic competition instead of circumscribe it. This new instrumental law would flourish during the nineteenth century as the legal profession and the mercantile elite forged a mutually beneficial alliance to gain wealth and power. Horwitz also demonstrates how the emergence of contract law corresponded to the development of economic and legal institutions of exchange. And he discusses how the rise of the market economy influenced legal practices, how contracts became ways to negate preexisting common law duties, and how (to the benefit of entrepreneurs and commercial groups) the courts were able to overthrow earlier anticommercial legal rules. Previous historical studies have viewed law and policy as an accurate reflection of the needs of an undifferentiated society. In The Transformation of American Law, Horwitz successfully challenges this misconception and shows how in the eighty years after the American Revolution, a major change in law took place in which aspects of social struggle turned to legal channels for resolution. Looking into the distribution of wealth and power during this time, Horwitz finds indeed that the change in legal ideology enabled commercial groups to win a disproportionate amount of wealth and power in American society. An accessible account of the history of law, this is a powerful statement on the great role of the legal system in American economic development.

Download of the Week The Download of the Week is The Perils of Pervasive Legal Instrumentalism by Brian Z. Tamanaha. I love this paper! Here is the abstract:
    In contemporary U.S. legal culture, the law is widely seen as an instrument to serve ends. Many legal theories construe law in instrumental terms (law is an instrument to maximize wealth, law is an instrument of male patriarchy, etc.). Law professors indoctrinate students to reason instrumentally using legal rules and policy arguments. Practicing lawyers manipulate legal rules and processes instrumentally when serving clients. Cause lawyers use litigation as an instrument to bring about social change. Judges increasingly engage in instrumental analysis when deciding cases. Judicial appointments are viewed instrumentally by groups within society dedicated to seating like-minded judges who will render decisions consistent with their preferred ends. Legislation and administrative regulations are seen as empty vessels that can be filled in and applied to achieve whatever ends might be desired. A law that is seen in purely instrumental terms has no integrity onto itself. It is simply a tool - a powerful tool - to be used in pursuit of the tasks or goals at hand. So pervasive is an instrumental view of law today that we seldom recognize that it is relatively new - having become entrenched in the course of the late 19th and 20th Centuries - and we have forgotten how radically different it is from previous understandings of law. In a real sense, we have embarked upon a social experiment of the greatest magnitude, with no predecessors to offer guidance or to warn of pitfalls. There are now plentiful signs that this experiment may be ill-fated. The core thesis of this essay is this: if the law is viewed in instrumental terms in a context of sharp disagreement over the social good, what will follow is a Hobbsean war of all against all that takes place within the legal order over control of the legal apparatus. Opposing groups within society will attempt to seize or co-opt the law in every context possible, and in every way possible, to enlist or wield it on behalf of achieving the ends they desire. Even those groups that might prefer to abstain from seizing the law are forced nevertheless to engage in the contest, if only defensively to keep it out of the hands of their less restrained opponents. Spiraling conflicts will ensue with no evident halting point or termination (short of exhaustion of resources or total victory by one side). This essay, a written version of the inaugural Montesquieu Lecture delivered at the University of Tilburg, liberally mixes intellectual history and rational reconstruction to demonstrate this thesis. The first half of the essay is a historical exploration that begins with non-instrumental views of law and traces the emergence of instrumental views of law; the second half provides a brief survey of contemporary legal instrumentalism in several of the areas set forth above, offering examples and drawing out worrisome implications.
Download it while its hot!

Conference Announcement: The Unity of Reason at St. Andrews
    THE UNITY OF REASON CONFERENCE 18th – 20the June 2005 Department of Moral Philosophy, University of St. Andrews IMPORTANT NOTICE: We ask all people wishing to attend to let us know by June 3rd and, if possible, to send their cheques by then too. There may be a surcharge for later applications. Details of the conference, with conference packages and how to apply, can be found at: SPEAKERS: Michael Bratman (Stanford): ‘Intention, Belief, Practical, Theoretical’ John Broome (Oxford): ‘Rationality and reasoning’ Jonathan Dancy (Reading / UT Austin): ‘Reasons and Rationality’ Stephen Darwall (Michigan): ‘Second-Personal Reasons for Acting: A Fundamental Difference With Theoretical Reason’ Pascal Engel (Sorbonne, Paris): ‘Theoretical Reason First’ Alan Millar (Stirling): ‘How Reasons for Action differ from Reasons for Belief’ John Skorupski (St Andrews): ‘Reasons: Single Form, Plural Truths’ Jens Timmermann (St Andrews): ‘The Unity of Reason: Kantian Perspectives’ Theo von Willigenburg (Erasmus University, Rotterdam): ‘Reasons, Reasoning and Oughtness’ GRADUATE SPEAKERS: Jeppe Andersen (Reading): 'Swimming Upstream - Problems for Smith's Account of the Nature of Reasons' Tony Booth (Durham): 'How to Defend the Unity of Justification' Jamie Dow (St. Andrews): 'What makes a Good Judge? Emotions and the Weighing of Practical and Epistemic Reasons' Antti Kauppinen (Helsinki): 'Practical Reasoning and Self-Knowledge' Conor McHugh (Edinburgh): 'Having a Reason to Believe What You See' Bryony Pierce (Open U): 'Rationality and Ends-Awareness' Robert Pulvertaft (Copenhagen): 'Normative Reasons and Normative Principles' Ezra Macdonald (Bristol): 'Quasi-Realism and the Unity of Reason' If you have any questions about the conference or applications, don’t hesitate to contact us at: CONFERENCE THEME Reasons and rationality are philosophically fundamental concepts. Work done over the last few decades in a variety of areas of philosophy – including epistemology, philosophy of mind and action, rational choice theory and ethics – has made it timely to re-examine the philosophical questions that cluster around them and easier to do so in a rigorous and comprehensive way. The conference will revolve around the following questions: 1. Can a uniform account of reasons (or reasoning) in the (prima facie) three spheres of action, belief, and feeling/evaluation be given? Or are they in important ways diverse? 2. What role if any does 'reason' play (or: do reasons play) in the domain of feeling, as against action and belief? 3. Is one of the spheres dominant? For example: reasoning in all spheres is finally governed by practical reason, so that what there is reason to believe or feel is finally a practical question. Or: reasoning in all spheres is finally governed by theoretical reason, so that the result of reasoning is always a belief concerning fact or value, duty etc. 4. Is 'reason' in some sense one basic faculty, capacity, or competence, or is it a multiform, not very integrated set of competences?

Journal Announcement: New Issue of the Yale Law Journal
    Symposiums Globalization and Distrust Anupam Chander There was a time when the critics of international law denounced it for its irrelevance, its masquerade of power. Now, in the post-ontological era of international law, the critique has shifted. International law is denounced not for its weakness but for its vigor, specifically its transfer of authority from local to international bodies. Critics find a “democratic deficit” in almost all international institutions—from the World Trade Organization to the International Criminal Court to even the World Health Organization. [ MORE ] The Coherentism of Democracy and Distrust Michael C. Dorf John Hart Ely’s justly celebrated Democracy and Distrust aims to reconcile judicial review with the fundamentally democratic character of the American Constitution. Yet taken at face value, the book does not establish that the American Constitution is fundamentally democratic. While pointing to the large number of constitutional provisions that concern the mechanics of government, Ely offers no satisfactory account of why these provisions should be used to infer a master principle to guide interpretation of the document as a whole. [ MORE ] Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics William N. Eskridge Jr. John Hart Ely argued that judicial review is most appropriate when democratic politics has broken down. Professor Eskridge argues that judicial review is also appropriate to lower the stakes of pluralist politics. Stakes get high when the system becomes embroiled in bitter disputes that drive salient, productive groups away from political engagement. [ MORE ] John Hart Ely and the Problem of Gerrymandering: The Lion in Winter Pamela S. Karlan In Democracy and Distrust, John Hart Ely articulated a “participation-oriented, representation-reinforcing approach to judicial review” that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay explores the implications of his work for a central issue of democratic governance: legislative apportionment. [ MORE ] Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy) Charles R. Lawrence III More than ever, urban school systems are segregated by race and class. While a chief cause of this segregation is the flight of white and upper-middle-class black families from predominantly black public schools, there is little discussion of white flight in contemporary education policy debates. Instead, our conversations frame the causes of and remedies for educational inequality in terms of racially neutral private choices. [ MORE ] Comment War and Uncertainty Lori Fisler Damrosch This comment builds on John Hart Ely’s concern in War and Responsibility with Congress’s duty to investigate the factual predicate for going to war in circumstances of uncertainty. Professor Damrosch argues that Congress should exercise its constitutional power to decide to authorize military conflict with the fullest feasible understanding of policy-relevant factual context, but that the contextual investigation Congress should undertake should not be confused with a kind of incident-specific fact-finding that Congress is ill suited to perform. [ MORE ] Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror Jonathan Simon In War and Responsibility, John Hart Ely sought to answer a question that has bedeviled constitutional scholars since the beginning of the Republic: What meaningful checks should be placed on the power of the Executive in wartime? For Ely, the answer was a new and improved version of the War Powers Resolution, a solution entirely in keeping with his support for theories of legal process more generally. [ MORE ] Gideon in White/Gideon in Black: Race and Identity in Lawyering Anthony V. Alfieri Traditionally, poverty lawyers, criminal defenders, and clinical teachers have overlooked John Hart Ely’s theory of judicial review in teaching the lawyering process and in representing impoverished clients and their communities. But the egalitarian themes of Ely’s work on judicial review, reflected in his early contribution to Gideon v. Wainwright and his service as a public defender, resonate deeply with the practice of lawyering for the poor and the disenfranchised. [ MORE ] The Duty To Defend Barbara Allen Babcock Through the lens of history and doctrine, combining personal narrative, memoir, and stump speech, Barbara Babcock recalls John Ely’s contributions to criminal defense. [ MORE ]

Friday, May 27, 2005
Blogging from Granada, Part Three It’s Friday morning in Granada, and I’m sitting in a mostly empty (and huge) auditorium. William Twining, Professor Emeritus at University College, London, is this morning’s speaker, and his talk is entitled “General Jurisprudence and Globalization.” Twining has a distinctive voice among legal theorists; he does legal theory that is high level, abstract, and interesting, but from a distinctively “legal” perspective—bucking the trend towards interdisciplinarity that dominates the American legal academy. I find Twining’s work to be stimulating and refreshing, so I am looking forward to this talk.
Twining begins. His aim, he says, is to revive a “general jurisprudence” for a globalized society. Anglo-American jurisprudence, he suggests, has been “parochial.” But his perspective is itself parochial—reflecting his own immersion in the Angle-American tradition. Jurisprudence is theorizing about the law that is ideological in the nonpejorative sense—linking views about law to the rest of our views about the world. Jurisprudence has a crucial role in the development of law as a healthy discipline. The heritage of Anglo American jurisprudence is parochial in three ways: 1) it has been done within the western legal tradition, 2) it is focused almost exclusively on state law and ignores other forms of law, including religious and transnational systems of legal ordering, and 3) the agenda of Anglo-American jurisprudence is quite limited, ignoring many important issues. The central argument of the paper is that law is becoming more cosmopolitan and jurisprudence needs to face this.
Globalization challenges some of the basic assumptions of contemporary Anglo-American jurisprudence. Twining says he teaches a course on globalization, and in his course, he bans the “G-words,” references to global and globalization, unless the words are justified and defined clearly. He does this because there is a tendency to overuse the word globalization, and to ignore the difference between truly global phenomena and other transnational spheres. Much of transnational law is not global. The global perspective can actually encourage bad theorizing, that seeks to universal phenomena that are actually not universal. He suggests that although theories like Brian Tamanaha’s are valuable, there is a need for more data-driven.
General jurisprudence has a number of different meanings. Twining’s list includes, for example, general as “universal” and general as “abstract.” So if we talk about general jurisprudence, we need to be clear about what we mean. A central issue of a general jurisprudence should be: how useful is it to generalize across different legal cultures. Generality and particularity are relative. A general jurisprudence need not be a “universal” jurisprudence.
Jurisprudence, legal theory, and socio-legal studies have similar but not identical meanings. Some questions, e.g., theories of justice, belong to philosophy of law. Other questions, e.g. the difference between questions of law and fact, are not topics on which philosophers have any special expertise. Twining then discusses the tendency to assimilate jurisprudence and philosophy of law. Brian Leiter, for example, argued that no American legal theorist (Holmes, Pound, etc.) has made a significant contribution to philosophy. Twining maintains that not all of the issues that are important to legal theory are philosophically interesting. The revival of contact between analytic philosophy and jurisprudence inaugurated by H.L.A. Hart has had important beneficial effects. But there has been a growing sense of dissatisfaction with philosophy of law. Two common complaints: (1) legal philosophy has become too detached from legal practice, and (2) legal philosophy is too narrow.
Charges of narrowness can mean several different things. One point is that legal philosophy has been isolated from socio-legal studies and ignored the realist turn to looking at law in action. The method of conceptual analysis, nonetheless, can be useful to socio-legal studies.
Many have argued that legal doctrine needs to be understood in context. Socio-legal studies and analytic jurisprudence have been mutually antagonistic, but recently there are signs of reconciliation. Brian Tamanaha’s use of Hart has been especially important in this regard.
Recently, there have been arguments in favor of a broad conception of law that includes non-state law. This goes beyond the assumption that there are only two kinds of law: municipal and international. The picture of law that focuses only on these two kinds of law is too narrow—it omits religious law, like Islamic Law, for example. Yet these forms of law are important to understanding law in a global context.
Several serious thinkers, including Tamanaha and Glenn, have made the case for taking non-state law seriously. Twining’s paper discusses this in more detail, but he says he will omit those arguments from his oral presentation.
The central point of taking non-state law into account is that they are crucial for understanding legal phenomenon. He suggests that a “master plan” is not appropriate, but he does offer some examples of what a cosmopolitan theory might be like.
Dennis Patterson asks a question: If you believe that the business of philosophy is defining the necessary and sufficient conditions for the application of concepts, then philosophy is the master discipline and there is no room for sociology. But if you believe that metaphysics and conceptual analysis are dead (along the lines suggested by Brian Leiter), then there is no room for philosophy. Is there any middle ground? Twining expresses some skepticism about Leiter’s Quinean naturalism and suggests that Nicola’s Lacey’s work offers a better model. Lacey suggests that questions like judge’s conceptions of their role, modes of institutionalization, and so forth must be taken into account. Twining suggests that he is after a middle ground, but that he does not need a controversial philosophical theory to get it.
The questions continue, but I am not putting down my pen—or rather, powering down my laptop for now! It was a provocative session that I very much enjoyed.

Thursday, May 26, 2005
Formalism and Systems Theory Check out A Defense of Formalism from a Systems Theory Point of View over at Law and Society Weblog. Here´s a taste:
    Legal systems are self-referential and self-replicating systems of communication. (Some writers have referred to such systems as autopoietic, but that term carries too much unnecessary baggage for my taste.) In other words, the elements of a legal system produce the elements of a legal system that produce the elements of a legal system, ad infinitum. In this sense, legal systems are closed. They contain nothing and consist of nothing but legal communication. Everything else, including judges, lawyers, courthouses, jails, minds, brains, the world at large, is emphatically not part of the legal system. That is not to say that the legal system could exist without its environment, of course it couldn't. But the legal system and its environment do not merge. Explaining a legal decision as caused by its environment is similar to explaining thoughts (or other mental states) as caused by the brain. While the mind is structurally coupled to the brain, both operate independently and at no point do their operations merge.

New from Law & Politics Book Review
    ACCESS TO JUSTICE, by Deborah L. Rhode. New York: Oxford University Press, 2004. 265pp. Hardback. £18.50 / $29.95. ISBN: 0-19-514347-7. Reviewed by John Michael Eden and John Paul Ryan.
    CATASTROPHE: RISK AND RESPONSE, by Richard A. Posner. New York; Oxford University Press, 2004. 336pp. Hardback. £16.99/$28.00. ISBN: 0-19-517813-0. Reviewed by Stephen Meinhold.
    HOW LAWYERS LOSE THEIR WAY: A PROFESSION FAILS ITS CREATIVE MINDS, by Jean Stefancic and Richard Delgado. Durham: Duke University Press, 2005. 152pp. Cloth. $69.95. ISBN: 0-8223-3454-2. Paper. $19.95. ISBN: 0-8223-3563-8. Reviewed by Patrick Schmidt.
    THE SUPREME COURT: A CONCISE HISTORY, by Robert W. Langran. New York: Peter Lang, 2004. 149pp. Cloth. €56.00 / £40.00 / $55.95. ISBN: 0-8204-7109-7. Paper. €23.00 / £17.00 / $22.95. ISBN: 0-8204-6162-8. Reviewed by Samuel B. Hoff.
    SEEKING JUSTICES: THE JUDGING OF SUPREME COURT NOMINEES, by Michael Comiskey. Lawrence: University Press of Kansas, 2004. 256pp. Cloth. $40.00. ISBN: 0-7006-1346-3. Paper. $17.95. ISBN: 0-7006-1347-1. Reviewed by Kevin J. McMahon.

Book Announcement: Straightforward by Ayres & Brown
    Straightforward: How to Mobilize Heterosexual Support for Gay Rights Ian Ayres and Jennifer Gerarda Brown To read the entire book description or a sample chapter, please visit: What can straight people do to support gay rights? How much work or sacrifice must allies take on to do their share? Ian Ayres and Jennifer Brown--law professors, activists, husband and wife--propose practical strategies for helping straight men and women advocate for and with the gay community. Cloth | $24.95 / £15.95 | ISBN: 0-691-12134-6

Journal Announcement: New Issue of Theoretical Inquiries in Law
    THEORETICAL INQUIRIES IN LAW is pleased to announce the release of its new issue, Volume 6(2), "Liberty, Equality, Security". You may not be aware that your institution subscribes to this journal, providing you with direct access to these and all past articles. To view papers in this issue, click on links below; full citations and abstracts follow. Visit to learn about the Scholarly Communication Crisis and what The Berkeley Electronic Press is doing to help. Zohar Goshen "Conflicts of Interest in Publicly-Traded and Closely-Held Corporations: A Comparative and Economic Analysis". Yoshiro Miwa and J. Mark Ramseyer "Conflicts of Interest in Japanese Insolvencies: The Problem of Bank Rescues". David Gilo "The Problem of Bank Rescues: A Comment on Miwa and Ramseyer". Edward L. Rubin "Images of Organizations and Consequences of Regulation". Sharon Hannes "Images of Organizations and Interfirm Externalities: A Comment on Rubin". Richard C. Nolan "The Legal Control of Directors' Conflicts of Interest in the United Kingdom: Non-Executive Directors Following the Higgs Report". Fabrizio Cafaggi "Organizational Loyalties and Models of Firms: Governance Design and Standard of Duties". THEORETICAL INQUIRIES IN LAW is an English-language biannual law journal published by the Cegla Center for Interdisciplinary Research of the Law of the Tel Aviv University Faculty of Law ( ). The Journal specializes in the application to legal problems of insights developed in other disciplines, such as moral and political theory, epistemology, social sciences, economics and game theory, probability theory, and cognitive psychology. THEORETICAL INQUIRIES IN LAW ranks in the top 5 for citations and impact in Jurisprudence and Legal Theory according to Washington & Lee Law School's Most Cited Legal Periodicals rankings.

Tom Bell on the US News Rankings Tom Bell has reverse engineered the U.S. News & World Report ranking system. Take a look at this post and this one.

Wednesday, May 25, 2005
More on Formalism and Instrumentalism Check out this post at Law and Society Blog. Here´s a taste:
    In my opinion, the debate between formalism and instrumentalism can fruitfully be recast as the distinction between first and second order observations. The first order observer must by definition assume the normative relevance of the law. From an internal point of view, questions of indeterminacy will appear as issues of construction or interpretation and will be dealt with the tools provided by and immanent to the law. The second order observer, in contrast, has no built-in normative commitment. He or she looks at the law as text, literature, economic phenomenon, sediment of a power struggle, social institution, etc. In most instances, observing the first order observer (and the fact of his or normative commitment) is also a significant part of second order observation. (Strictly speaking, a second order observation is defined as observing another observer. For example, a sociologist observing a judge. But second order observation, at least in my view, is not limited to only observing observers.)

Blogging from Granada, Part Two The second speaker is David Held, whose lecture is entitled, “Principles of Cosmopolitan Order.” He begins with the usual words of appreciation. He then says that he will defend radical democratic cosmopolitanism, Habermas in the middle, and skeptical Westphalianism. Held says that his recent work has focused on globalization, and he now will talk about the principles underlying cosmopolitanism. He says cosmopolitanism is concerned with the “ethical, cultural, and legal basis” of political order in a world in which nation states are still important, but not exclusively. The are not ontologically privileged. States can be judges by their success or failure. States have failed spectacularly.
Held then discusses the Stoic and Kantian roots of cosmopolitanism. The Stoics referred to themselves as “cosmopolitan.” Stoics sought to replace the polis with the cosmos. Humans live both in a local community and a wider community of ideals and aspirations. The second account of cosmopolitanism is found in the Kant’s writings. Kant believed that enlightenment required the free use of public reason and that a right of participation in a cosmopolitan order is required by the idea of unrestrained dialogue.
Held then outlines eight principles of cosmopolitanism:
    1. equal worth and dignity,
    2. active agency,
    3. personal responsibility and accountability,
    4. consent,
    5. collective decision-making about public matters through voting procedures,
    6. inclusiveness and subsidiarity,
    7. avoidance of serious harm,
    8. sustainability.
These principles are interrelated and form a cosmopolitan view. They fall into three clusters. The first cluster, principles one through three, deals with individuals as the subject of moral concern and are responsible for their actions. The second cluster—four to six—form the basis for translation into collective action. The third cluster—seven and eight—provide a basis for prioritization.
Can a bridge be built between individual will and the general will? Cosmopolitan political philosophy does not deny the significance of diversity or the impossibility of unanimity. Cosmopolitanism takes difference seriously & talks about how it can be accommodated.
Held then discusses thick and thin cosmopolitanism. The thick version requires equal concern for all. The thin version limits the scope of equal concern to certain issues. The meaning of the eight principles needs to be worked out. Held calls his perspective “layered.” This approach builds on principles that all might agree to. We start with ideas like equal respect, but specify their meaning through national and transnational public debate.
Where do the principles come from? How are they justified? They are not self-justified. We should distinguish the origins and their justification. The principles are dependent on two metaprinciples: (1) autonomy and (2) impartialist reasoning. Autonomy is at the core—a political, not metaphysical idea, in Rawls’s sense. It builds on the idea of the citizen as a free and equal person. Autonomy is the core of the idea of democratic citizenship and the basis for the idea of consent and self-determination. The meta principle of autonomy is the basis of the first seven principles. The language of autonomy generates a commitment to the idea that all persons should be equally free—with equal liberty to pursue interests without undue interference. There are certain languages the nurture equality dignity and others that seek to ignore it.
Testing the generalizability of claims and interests involves “reasoning from the point of view of others.” The impartiality thesis says that the court of appeal for judging moral standards is one of which no particular individual or group has special standards. A number of particular tests can be used. Are all points of view considered? Would the outcome be accepted irrespective of social position? This does not result in a simple deductive proof. Rather it is a heuristic for testing candidate principles of morality. The tests are concerned with “reasonable rejectability”—always testable in dialogue.
Impartialist reasoning is a basis for disclosing non-generalizable principles. Principles of deception or coercion cannot meet the test of impartiality.
Impartialist reasoning has a decisive critical role. Something more positive can be set out. It can be argued that individual collective social arrangements that generate serious harm—unmet needs—cannot be justified impartially.
Together autonomy and impartialist reasoning provide the grounds of cosmopolitan thought. The first gives us the individual as the subject of cosmopolitan concern. It provides us reasons to help establish agreement on reasonable terms. The second abstracts from power relationships to disclose the conditions of just cooperation.
Cosmopolitan law refers to a domain of law different in kind from the law of states. Kant interpreted it as the basis for articulating the equality of persons in a universal community. Kant’s right to be heard in dialogue is power. Held understands it more broadly. Cosmopolitan law entrenches the eight principles. If they were entrenched as the basis of cosmopolitan law, the conditions of the cosmopolitan regulation of public life could be set down.
We have taken some steps, e.g. the UN declaration, but this is currently weak. The post-45 world order is at stake again, in the rise of the hegemonic project. That project, says Held, is both illegitimate and a failure. Held argues that “realism” is the new fantasy. Realism does not take into account interdependence. Cosmopolitanism is the new realism—the practical way to address the new global problems.
Current practice suggests a model for global citizenship. Individuals can be citizens of local, national, and regional associations—e.g., citizen of Scotland, the UK, and the EU. This points towards the state “withering away.” In a world of overlapping communities of fate, individuals would be citizens of local communities and regional and global networks. This would embrace the diverse forms of power and authority that already transcend national borders. Cosmopolitanism is the basis in political philosophy for living in a global age.
Held was remarkably clear and lucid—an excellent talk.

Blogging from Granada, Part One It’s Monday morning in Granada, Spain. I’m sitting through the tradition opening ceremonies of the World Congress for the Philosophy of Law and Social Philosophy—the biannual meeting of IVR and, for better or worse, the only real worldwide forum for high legal theory and legal philosophy.
The first substantive speaker this morning will be Jürgen Habermas—the great German political philosopher and social theorist. I first encountered Habermas’s work as a student in the 70s: I remember devouring several of his early books—thirty years later I still can do a fair job or recapitulating the arguments of Legitimation Crisis & Knowledge and Human Interest—and when I was a law student I wrote a paper for Gunter Frankenberg that developed a theory of the freedom of expression from Habermas’s Theory of Communicative Action. In the 1990s, Habermas became intensely interested in legal theory—writing a largish volume on legal theory. Today, Habermas’s topic is “The Kantian Project of the Constitutionalization of International Law, Does it Still Have a Chance?”.
The speeches have come to an end—finally!
Jürgen Habermas takes the stage. I’ve seen Habermas speak only a few times, at Harvard University when he visited Rawls’s political philosophy seminar in the early 80s, at a world Congress in Bologna a few years ago, and most recently at the University of San Diego, where Habermas gave a lecture as part of the Kyoto Prize activities. Habermas is a notoriously difficult speaker to understand—he has a mild speech impediment and, although the substance of his English is superb, his delivery is not entirely fluent. Despite this, Habermas has a commanding presence—won through the force of intellect and ideas—and audiences are always transfixed even if they are also perplexed. As always, these are just my notes—which record my impressions and not the actual text of Habermas’s talk.
He begins by briefly reviewing the history of the United Nations and then mentions the recent efforts to reform the UN. Then Habermas turns to Kant and introduces Kant’s idea of a ‘cosmopolitan condition’ which Habermas identifies as a step beyond international law, which is concerned only with nation-states. Kant conceived of a choice between “world republic” or “commonwealth of nations.” That is, Kant thought there were only two alternatives for international order—nation states with minimal international law or world government. (Habermas is going to try to show that there is a third way—involving international order that is more substantial than that posited by Westphalian realism but short of world government.) Habermas turns to the modern ideas that allow us to see that Kant’s two choices are not the only ones. We can now see the assumptions that underlay his conception of the choice. First, we now have the idea of federalism or “divided sovereignty.” Second, whereas Kant thought of a constitute as creating a government, we now have an alternative idea—a constitution that is not solely the constitution of a state. A constitution that constrains an existing state, breaking the link between a state and democratic citizenship. Third, Kant may also have based the dualism of “world republic” and “league of nations” on the improbability of a constitutional revolution. We see constitutionalization as a long term process, in which constitutional regulation emerges gradually in stages or degrees.
Habermas summarizes the three ideas: (1) federalism, (2) the new idea of a regulatory constitution, and (3) the idea of gradual constitutionalization implemented by governments rather than a popular revolutions.
Habermas then turns to a discussion of the means by which a new international constitutional order might emerge, discussing among other topics, the idea of constitutional law made at a supernational level—the EU provides a model of how this can work. States can act as “members of international organizations” and not just as the free agents of the realist theory of international order. The nation-state system recognized only one kind of entity (the “nation state”) with two kinds of policy—foreign and domestic. There are now supernational entities, such as the UN, with power to act in well-defined fields, i.e. securing peace and protecting human rights. New mechanisms for the coordination of nation states and NGOs are also emerging to do with particular issues—trade, the environment, international finance, etc. These arrangements, however, do not provide a framework for “international will formation” or the mechanism for the enforcement of international norms. With the exception of the United States, there are no viable actors to enforce such norms.
Historically, Habermas argues that with the process of decolonization, an international community of nation states arose. National states are comparatively young (on a world wide basis), and they are currently the most powerful actors in the international sphere. Nation states form regional alliances and engage in international cooperation, but these are comparatively weak. The EU has achieved the status of “laying claim” of growing into the role of global actor. But the EU will only do this if it achieves political integration that will enable it to claim democratic legitimacy.
Habermas then turns to the idea of the legitimation deficit. As international actors do more, they outgrown their sources of democratic legitimacy. Even if the UN does reform itself, this will not create the kind of connection between the UN and the nation state that would confer legitimacy. Ever since the development of international law has followed the logic of human rights, the emergence of international legal order has been more legal than political. The protection of human rights through fair procedures can be legitimate.
The neoliberal response to these problems is to see democratic legitimacy as the wrong model. Rather, legitimacy is provided by the excellence of the decision making process. The legitimacy of the international system of markets and states is presumed. This neoliberal approach has not met with democratic consensus. The shift from political mechanisms to market mechanisms would rob future generations of the ability to change these decisions.
I’ve only captured a small fraction of Habermas’s lecture (which, as usual, was a bit difficult to follow. Hopefully, we will get a published version!

Tuesday, May 24, 2005
Lawson on the Deans Check out Gary Lawson´s guest post, Deans and Judicial Independence, on the Right Coast. Here´s a taste:
    On May 10, 2005, a gaggle of law deans sent a letter to Congress complaining about criticism of the judiciary. In particular, the deans were hot and bothered by intimations that judges might suffer consequences, and perhaps even impeachment proceedings, as a result of their decisions. The letter’s conclusion regarding the constitutional power of Congress to discipline rogue federal judges was that “[r]ecent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers . . . . [I]t is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings.” The letter’s argument in support of this conclusion about the constitutional power of Congress to discipline rogue federal judges was that “[r]ecent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers . . . . [I]t is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings.” No, wait -- that was the conclusion. No, wait -- that was the argument. No, wait -- that was the conclusion . . . .

Some Prelinary Thoughts on the ¨Nuclear Option¨ Compromise I´m blogging from an Internet Cafe in Granada, Spain, and just got the news about the Senate´s compromise on the Nuclear Option. I have a few preliminary thoughts. First, one effect of the compromise is to increase the power of a few moderate Republicans over the next Supreme Court nomination. Why is this true, given the fact that the number of votes required for confirmation, 51, is the same as the number of votes required to confirm, also 51? My guess is that the political costs of voting against the nuclear option are different from the costs of voting against a nominee. The former vote is fuzzier and plays better with the majority of voters; the latter vote is clear and is suicide with the Republican base. Second, the compromise reflects the discomfort of many Senators with changes in the norms of the Senate. I think two norms were in play. One norm disfavored ¨veto filibusters¨ of judicial nominees: a veto filibuster is a filibuster through the end of the term that kills a nomination. The second norm was that the rules themselves should only be changed in conformity with the rules. Although some versions of the nuclear option were rule compliant, the specific version being advocated would have involved a rule change that would have required the nuclear option in order to pass. That would have been unprecedented. That´s about all I´m capable of with severe jetlag and two classes of very fine spanish wine!

Conference Announcement: ECAP
    If you would like to attend ECAP 5 please register before the 1st of June. ECAP 5: Fifth European Congress for Analytic Philosophy 27-31 August 2005, Faculdade de Letras, Universidade de Lisboa Please check the congress website for details about registration and accommodation. ECAP-congresses are organized every three years by the European Society for Analytic Philosophy, ESAP. The Society organizes these congresses to further contacts and collaboration amongst European analytic philosophers. João Branquinho Department of Philosophy Faculdade de Letras de Lisboa Alameda da Universidade 1600-214 Lisboa Portugal URL

Conference Announcement: Political Studies in Belfarst
    Political Studies Association of Ireland (PSAI) Annual Conference 2005 21 to 23 October 2005 Belfast, United Kingdom We encourage papers on a wide range of topics, including but not limited to, the politics of the Republic of Ireland and Northern Ireland. Panels will include: Elections and voting in Northern Ireland Elections and voting in the Republic of Ireland Psychological models of political behaviour Right wing political parties The impact of the EU on Irish politics Ireland and the international world Developments in political theory Multiculturalism and minority rights Habermas, democracy and participation Public policy and politics Corruption and scandals in politics Ireland and the international world The influence of the media on political life Enquiries: Web address:

Conference Reminder: Society for Applied Philosophy at Oxford
    Registration is closing soon for the: Society for Applied Philosophy: International Congress 2005 Applied Philosophy 25 Years On: Problems and Prospects St Anne's College, Oxford 1 - 3 July Keynote Speakers: Allen Buchanan (Duke) Rethinking Ethics Hubert L. Dreyfus (Berkeley) The Current Relevance of Kierkegaard's Critique of the Public Sphere Frances Myrna Kamm (Harvard) Just War Jeff McMahan (Rutgers) Infanticide Alan Wertheimer (Vermont) Exploitation in Clinical Research Will Barrett (University of Melbourne) The Moral Basis of Public Policy on Gambling Presidential Address: Baroness Onora O'Neill M.A., Ph.D. (Harvard), C.B.E., F.B.A., FMedSci (Newnham College Cambridge) Informed Consent and Genetic Data Registration Deadline: Friday 3rd June 05 (limited availability) Conference Website: ___________________________ Jon Cameron Society for Applied Philosophy Department of Philosophy University of Aberdeen AB24 3UB Email: Web:

Monday, May 23, 2005
Tamanaha on Legal Instrumentalism Brian Z. Tamanaha (St. John's University - School of Law) has posted The Perils of Pervasive Legal Instrumentalism (Montesquieu Lecture Series, Tilburg University, Vol. 1, 2005) on SSRN. Here is the abstract:
    In contemporary U.S. legal culture, the law is widely seen as an instrument to serve ends. Many legal theories construe law in instrumental terms (law is an instrument to maximize wealth, law is an instrument of male patriarchy, etc.). Law professors indoctrinate students to reason instrumentally using legal rules and policy arguments. Practicing lawyers manipulate legal rules and processes instrumentally when serving clients. Cause lawyers use litigation as an instrument to bring about social change. Judges increasingly engage in instrumental analysis when deciding cases. Judicial appointments are viewed instrumentally by groups within society dedicated to seating like-minded judges who will render decisions consistent with their preferred ends. Legislation and administrative regulations are seen as empty vessels that can be filled in and applied to achieve whatever ends might be desired. A law that is seen in purely instrumental terms has no integrity onto itself. It is simply a tool - a powerful tool - to be used in pursuit of the tasks or goals at hand. So pervasive is an instrumental view of law today that we seldom recognize that it is relatively new - having become entrenched in the course of the late 19th and 20th Centuries - and we have forgotten how radically different it is from previous understandings of law. In a real sense, we have embarked upon a social experiment of the greatest magnitude, with no predecessors to offer guidance or to warn of pitfalls. There are now plentiful signs that this experiment may be ill-fated. The core thesis of this essay is this: if the law is viewed in instrumental terms in a context of sharp disagreement over the social good, what will follow is a Hobbsean war of all against all that takes place within the legal order over control of the legal apparatus. Opposing groups within society will attempt to seize or co-opt the law in every context possible, and in every way possible, to enlist or wield it on behalf of achieving the ends they desire. Even those groups that might prefer to abstain from seizing the law are forced nevertheless to engage in the contest, if only defensively to keep it out of the hands of their less restrained opponents. Spiraling conflicts will ensue with no evident halting point or termination (short of exhaustion of resources or total victory by one side). This essay, a written version of the inaugural Montesquieu Lecture delivered at the University of Tilburg, liberally mixes intellectual history and rational reconstruction to demonstrate this thesis. The first half of the essay is a historical exploration that begins with non-instrumental views of law and traces the emergence of instrumental views of law; the second half provides a brief survey of contemporary legal instrumentalism in several of the areas set forth above, offering examples and drawing out worrisome implications.
Highly recommended!

Maroney on a Taxonomy of Law and Emotion Terry A. Maroney (NYU) has posted Law and Emotion: A Proposed Taxonomy of an Emerging Field (Law and Human Behavior, 2006) on SSRN. Here is the abstract:
    Many scholars - from fields as diverse as psychology, law, philosophy, and neuroscience - have begun to study the intersection of emotion and law. I describe that scholarship's development; propose that it is organized along six interrelated but theoretically distinct foci; and suggest directions for future research. The notion that reason and emotion are cleanly separable - and that law admits only of the former - is deeply engrained, though it recently has come under attack. Law and emotion scholarship proceeds from the beliefs that emotion may be specifically studied, that it is relevant to law, and that its legal relevance is deserving of close scrutiny. It is organized around the following six approaches: Emotion-centered: Analyze how a particular emotion is, could be, or should be reflected in law. Emotional phenomenon: Describe a mechanism by which emotion is experienced, processed, or expressed, and analyze how that phenomenon is, could be, or should be reflected in law. Emotion theory: Adopt a particular theory (or theories) of the emotions and analyze how that theory is, could be, or should be reflected in law. Legal doctrine: Analyze how emotion is, could be, or should be reflected in a particular area of legal doctrine. Theory of law: Analyze the theories of emotion embedded or reflected within a theoretical approach to the law. Legal actor: Examine how a legal actor's performance of her function is, could be, or should be influenced by emotion. Any given study within the law-and-emotion rubric will have its primary grounding in at least one of these approaches, but should strive to attend to each. Thus, it should identify which emotion(s) it takes as its focus; distinguish between those emotions and implicated emotion-driven phenomena; explore relevant and competing theories of those emotions' origin, purpose, or functioning; limit itself to a particular type of legal doctrine or legal determination; expose any underlying theories of law; and make clear which legal actors are implicated. Directions for future research include greater attention to: non-criminal law; positive emotions; a wider variety of emotion theories and theories of law; and a broader range of legal actors. Cross-disciplinary collaboration will be particularly useful in this endeavor.

Balkin on Lochner Jack Balkin has posted Wrong the Day it Was Decided: Lochner and Constitutional Historicism (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
    Until quite recently Lochner v. New York and Plessy v. Ferguson were canonical examples of how courts should not decide constitutional questions -- both were generally considered not only wrong, but wrong the day they were decided. Although Plessy remains anti-canonical in this sense, for an increasing number of legal thinkers, Lochner no longer does. This essay, written for the 100th anniversary of Lochner v. New York, explains why Lochner's canonical status has altered, and how changing views of Lochner are connected to (or driven by) contemporary theories of legitimate constitutional change. It also explores the connections between contemporary attitudes about Lochner and constitutional ethos-the stories that Americans tell each other about who we are, where we have come from, and what we stand for. In analyzing these questions, the essay employs an approach called constitutional historicism, which holds that the conventions determining what is a good or bad legal argument about the Constitution, what is a plausible legal claim and what is off-the-wall, change over time in response to changing social, political, and historical conditions. The essay concludes by considering to what extent constitutional historicism might help constitutional theory.
Everything by Balkin is worth a read!

Sunday, May 22, 2005
The Calendar & Conference Blogging I'm on my way to the XXII World Congress of Philosophy of Law and Social Philosophy--link here. The calendar will be very spotty this week--the North American workshop season is mostly over. I will make sure to get up a post on the Oxford Jurisprudence Discussion Group and I will be blogging from the World Congress. There will be a fairly long delay between this post and the next one--sometime on Monday when I arrive in London.
If you are regular reader of the Legal Theory Lexicon, there will be a new series of entries--starting with today's entry on Formalism and Instrumentalism (see immediately below) and continuing throughout the Summer.
See you in Granda!

Legal Theory Lexicon: Formalism and Instrumentalism
    Introduction American law students learn about formalism instrumentalism early on—although those particular terms may not be introduced. Many law students hunger for “black letter law,” for legal rules that can be applied to the facts in a more or less determinate fashion. But in most law school classrooms, this hunger is not satisfied. Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for good legal rules. Some emphasize good consequences—perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice.
    In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize gay sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text is not much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state.
    But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.
    In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory.
    Legal Formalism What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following
      Legal formalism? That’s “mechanical jurisprudence,” when a judge decides a case without thinking about the consequences or the purpose of the rule.
    In other words, “legal formalism” is sometimes used as pejorative label for unthinking and unintelligent legal reasoning.
    We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:
    • Judges should apply the law and not make it.

    • There are legal rules that constrain what legal actors may lawfully do.

    • There is a difference between following the law and doing what you think is best.

    • Judges should decide cases in accord with the text of the applicable constitutional or statutory provision or with the holding of controlling precedents.
    This list go on and on, but you get the general idea. The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not). That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:
      1. The law consists of rules.
      2. Legal rules can be meaningful.
      3. Legal rules can be applied to particular facts.
      4. Some actions accord with meaningful legal rules; other actions do not.
      5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement.
    Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.
    Legal Instrumentalism Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.
    The Realist Critique of Legal Formalism It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Ideology does the work; legal formalism dresses it up so that it looks pretty.
    The Modern Revival of Legal Formalism Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be.
    Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents.
    Conclusion The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie.
    Related Entries

Saturday, May 21, 2005
Lipshaw on Solum on Siegel Jeff Lipshaw has some interesting responses to my comments on The Polymorphic Principle and the Judicial Role in Statutory Interpretation by Jonathan Siegel (which is the Download of the Week--see below). I've added them to the original post, either click here or scroll down to Thursday, May 19.

Paul Ricoeur The great French philosopher, Paul Ricoeur, has died at the age of 92. For a wonderful picture, visit this website. In the late 70s, I studied with Guy Wauthy, a former student of Ricoeur's and came to have an appreciation for this humane and interesting thinker. Here is a news report--I'm sure more will follow. Here's a brief excerpt:
    French philosopher Paul Ricoeur, a greatly influential thinker on both sides of the Atlantic, has died at the age of 92, his friend and fellow philosopher Olivier Abel said on Saturday. * * * In France, he held positions at the Sorbonne University in Paris and during the 1960s at the newly-founded University of Nanterre, where he was criticized as an ally of the government during the student protests of that decade. In 1967, he left France for the United States where he would teach at the University of Chicago for 15 years, as well as at Yale and Columbia. His cross-cultural career led to two of his most enduring works: "The Rule of Metaphor" and the three volume "Time and Narrative." Ricoeur is also known for his two volumes on the philosophy of the will entitled "Freedom and Nature: The Voluntary and the Involuntary."

Legal Theory Bookworm The Legal Theory Bookworm recommends Supreme Court Decision-Making: New Institutionalist Approaches edited by Cornell W. Clayton & Howard Gillman. Here is a blurb:
    What influences decisions of the U.S. Supreme Court? For decades social scientists focused on the ideology of individual justices. Supreme Court Decision Making moves beyond this focus by exploring how justices are influenced by the distinctive features of courts as institutions and their place in the political system. Drawing on interpretive-historical institutionalism as well as rational choice theory, a group of leading scholars consider such factors as the influence of jurisprudence, the unique characteristics of supreme courts, the dynamics of coalition building, and the effects of social movements. The volume's distinguished contributors and broad range make it essential reading for those interested either in the Supreme Court or the nature of institutional politics. Original essays contributed by Lawrence Baum, Paul Brace, Elizabeth Bussiere, Cornell Clayton, Sue Davis, Charles Epp, Lee Epstein, Howard Gillman, Melinda Gann Hall, Ronald Kahn, Jack Knight, Forrest Maltzman, David O'Brien, Jeffrey Segal, Charles Sheldon, James Spriggs II, and Paul Wahlbeck.
And you might also look at The Supreme Court in American Politics: New Institutionalist Interpretations, also edited by Clayton & Gillan.

Download of the Week The Download of the Week is The Polymorphic Principle and the Judicial Role in Statutory Interpretation by Jonathan Siegel. Here is the abstract:
    The Supreme Court's statutory interpretation cases present an ongoing clash between mechanical, textualist, rule-based interpretive methods that seek to limit the role of judicial choice and more flexible methods that call upon courts to exercise intelligent judgment. In the recent case of Clark v. Martinez, 125 S. Ct. 716 (2005), the mechanical view of judging prevailed. The Court applied a purported canon of statutory construction that requires that a single phrase in a single statutory provision must always have a single meaning. The Court said that any other interpretive approach would be novel and dangerous. The Court is wrong on both counts. This Article first demonstrates that numerous cases have applied what the Article calls the polymorphic principle that a single phrase in a single statutory provision may have multiple meanings. The Article then uses this question as a window into larger issues of statutory construction and the proper judicial role in our system of government. The article suggests that Martinez cannot be understood independently of its author, Justice Scalia. The case represents a stage in his long-term campaign to limit judicial choice. The article attempts to show that a mechanical view of the judicial role is inappropriate. The Constitution permits the degree of judicial choice necessary to implement the polymorphic principle. Moreover, Justice Scalia's rule does not eliminate judicial choice but only gives the illusion of doing so. Indeed, it has the ironic effect of magnifying the judicial role in statutory interpretation. For these reasons, the Article advocates that courts continue to exercise their appropriate role of making judicious choices in statutory interpretation, a role that will involve continued use of the polymorphic principle in appropriate cases.
Download it while its hot!

Friday, May 20, 2005
Friday Calendar
    Oxford Globalisation & Sustainable Development Law Group, Sustainable Development Law Lectures: Prof. Myron Frankman (Canada): “In the Spirit of Keynes: A Unitary Approach to Sustainable Development”.

Lawrence on the Freedom of Autonomy Michael Anthony Lawrence (Michigan State University College of Law) has posted Reviving a Natural Right: The Freedom of Autonomy Amendment on SSRN. Here is the abstract:
    America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman's right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack. Whatever became of the ideal that represented the very foundation of the Founders' and Framers' political theory - "free[ing] the individual from the oppressive misuse of power, [and] from the tyranny of the state?" How can it be that Tocqueville's warning of a "wholly new species of oppression…, [where] the democratic government, acting in response to the will of the majority, … create[s] a society with a network of … [rules] that none can escape," has indeed come to pass in modern-day America? This essay explores the historical foundations of the individual right of equality and free choice on matters of natural private concern (collectively,"freedom of autonomy") in America, looks at several present-day applications, and concludes that nothing short of a constitutional amendment will suffice to revive this most basic right from an overbearing government. Now is the time for change in America.

Conkle on Indirect Funding & Establishment Daniel O. Conkle (Indiana University School of Law) has posted Indirect Funding and the Establishment Clause: Rehnquist's Triumphant Vision of Neutrality and Private Choice (THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press) on SSRN. Here is the abstract:
    In a series of majority opinions over the course of his career on the Supreme Court, Chief Justice Rehnquist has successfully championed a relaxed approach to the Establishment Clause in the context of voucher programs and other types of "indirect" funding. Under this approach, "neutral" programs of "private choice" are virtually immune from constitutional challenge. This paper explains how Rehnquist has achieved this result even though a solid majority of the Court rejects his general approach to the Establishment Clause. Rehnquist's general approach to the Establishment Clause would give the states broad leeway to deal with religion as they see fit. That view has not prevailed. But Rehnquist has secured the support of a narrow majority for a relaxed and deferential approach in the context of indirect funding. He has done so by crafting opinions that bracket his distinctive general approach to the Establishment Clause and that work within the framework of prevailing Establishment Clause tests and values. Through his success in this context, Rehnquist has partially achieved his broader goal, a limited reading of the Establishment Clause. At the same time, he also has furthered his overarching constitutional vision: reading the Bill of Rights narrowly and thereby enhancing the power and discretion of the states. This paper will be published as a chapter in The Rehnquist Legacy, a book recounting and analyzing Rehnquist's jurisprudence in a variety of substantive areas.