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.
Saturday, July 30, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends The Puzzle of Judicial Behavior by Lawrence Baum. Here is a blurb:
Download of the Week The Download of the Week is Exclusionary Amenities in Residential Communities by Lior Strahilevitz. Here is the abstract:
Friday, July 29, 2005
Andrus on Wikis, Blogs, and Intelligence D. Calvin Andrus (Central Intelligence Agency) has posted The Wiki and the Blog: Toward a Complex Adaptive Intelligence Community on SSRN. Here is the abstract:
Baron on Baker v. State Charles Hillel Baron (Boston College - Law School) has posted Baker v. State and the Promise of the New Judicial Federalism (Boston College Law Review, Vol. 43, pp. 125-158, 2001) on SSRN. Here is the abstract:
Langer on Managerial Juding in International Criminal Courts Maximo Langer (University of California, Los Angeles - School of Law) has posted The Rise of Managerial Judging in International Criminal Law (American Journal of Comparative Law, Vol. 53, January 2006) on SSRN. Here is the abstract:
Lenard & Rubin on Data Security-Breach Notification Requirements Thomas M. Lenard and Paul H. Rubin (Progress & Freedom Foundation - General and Emory University School of Law) have posted An Economic Analysis of Notification Requirements for Data Security Breaches on SSRN. Here is the abstract:
Goodrich Goes Postal Peter Goodrich (Yeshiva University - Cardozo Law School) has posted The Posthumous Life of the Postal Rule Requiem and Revival of Adams v. Lindsell (FEMINIST PERSPECTIVES ON CONTRACT LAW, London: Glasshouse Press, 2005) on SSRN. Here is the abstract:
Klick & Stratman on Senior Prescription-Drug Price Sensitivity Jonathan Klick and Thomas Stratmann (Florida State University College of Law and George Mason University, Buchanan Center Political Economy) have posted How Sensitive Are Seniors to the Price of Prescription Drugs? on SSRN. Here is the abstract:
Thursday, July 28, 2005
Bartow on Women & Secondary Copyright Liability Ann Bartow (University of South Carolina - School of Law) has posted Women in the Web of Secondary Copyright Liability and Internet Filtering. Here is the abstract:
Goodrich on Satirical Legal Studies Peter Goodrich (Yeshiva University - Cardozo Law School) has posted Satirical Legal Studies: From the Legists to the Lizard (Michigan Law Review, Vol. 103, p. 307, 2004) on SSRN. Here is the abstract:
Klick & Stratmann on Diabetes Treatment & Moral Hazard Jonathan Klick and Thomas Stratmann (Florida State University College of Law and George Mason University, Buchanan Center Political Economy) have posted Diabetes Treatments and Moral Hazard on SSRN. Here is the abstract:
Lee on a European SEC Ruben Lee (Oxford Finance Group) has posted Politics and the Creation of a European SEC: The Optimal UK Strategy - Constructive Inconsistency on SSRN. Here is the abstract:
Call for Papers:
Whether moral judgments consist in cognitive or non-cognitive states, what is the content of those states?
What explains their connection to motivation?
What is the essential difference between beliefs and desires?
Are moral judgments judgments about reasons?
What is it to act on reasons?
How do reasons function in the explanation of action?
What is the relationship between reasons and rationality?
What kind of authority do moral and reasons judgments have for the agent and why?
Does rationality demand that one is motivated accordingly? What is the relationship vbetween autonomy and acting on such judgments?
Is the focus on the psychological a good way to put the basic questions of metaethics? Can it shed new light on classic problems, such as the Frege-Geach challenge and the alleged queerness of moral properties?
Conference Announcement: Pain and Death: Politics, Aesthetics and Legalities at Canberra
Wednesday, July 27, 2005
Romana on Sarbox Roberta Romano (Yale Law School) has posted The Sarbanes-Oxley Act and the Making of Quack Corporate Governance (Yale Law Journal, June 2005) on SSRN. Here is the abstract:
Baron on Law & Literature Jane B. Baron (Temple University School of Law) has posted The Rhetoric of Law and Literature (Cardozo Law Review, Vol. 26, p. 2273, 2005) on SSRN. Here is the abstract:
Harcourt on on Prediction and Punishing Bernard E. Harcourt (University of Chicago - Law School) has posted Against Prediction: Sentencing, Policing, and Punishing in an Actuarial Age on SSRN. Here is the abstract:
Garoupa on Optimal Enforcement Technology Nuno Garoupa (New University of Lisbon - Faculdade de Economia) has posted On the Optimal Choice of Enforcement Technology: An Efficiency Explanation of the ECHR. Here is the abstract:
Daughety & Reinganum on Quality Signaling Andrew F. Daughety and Jennifer F. Reinganum (Vanderbilt University - Department of Economics and Vanderbilt University - Department of Economics) have posted Imperfect Competition and Quality Signaling on SSRN. Here is the abstract:
Tuesday, July 26, 2005
Garnett on Conversations With Catholicism Richard W. Garnett (Notre Dame Law School) has posted American Conversations With(in) Catholicism (Michigan Law Review, Vol. 102, p. 1191, May 2004) on SSRN. Here is the abstract:
Lyons on Double Effect in Constitutional Law Edward C. Lyons (Ave Maria School of Law) has posted In Incognito: The Principle of Double Effect in American Constitutional Law (Florida Law Review, Vol. 57, No. 3, pp. 469-563, 2005) on SSRN. Here is the abstract:
Monday, July 25, 2005
McCaffery on Hybrid Income & Consumption Taxes Edward J. McCaffery (University of Southern California - Law School) has posted Good Hybrids/Bad Hybrids (Tax Notes, June 27, pp. 1699-1709, June 2005) on SSRN. Here is the abstract:
Strahilevitz on Exclusionary Amenities Lior Strahilevitz (University of Chicago Law School) has posted Exclusionary Amenities in Residential Communities on SSRN. Here is the abstract:
Bragues on Rorty George Bragues (University of Guelph-Humber) has posted Richard Rorty's Postmodern Case for Liberal Democracy: A Critique (Humanitas, Forthcoming) on SSRN. Here is the abstract:
Armour on Who Should Make Corporate Law John Armour (Faculty of Law, University of Cambridge) has posted Who Should Make Corporate Law? EC Legislation versus Regulatory Competition (Current Legal Problems, Vol. 48, 2005) on SSRN. Here is the abstract:
Saturday, July 23, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Justice in Plainclothes by Lawrence G. Sager. Here is a blurb:
Dowload of the Week The Download of the Week is Legal Realism as Theory of Law by Michael Steven Green. Here is the abstract:
Another Highly Recommended for Law's Aim in Law's Empire by John Gardner.
Rappaport Quibbles with a Quibble Mike Rappaport replies to my post criticizing a recent Wall Street Journal article.
Friday, July 22, 2005
Green on Legal Realism Michael Steven Green (George Mason University - School of Law) has posted Legal Realism as Theory of Law (William & Mary Law Review, Vol. 46, pp. 1915-2000, 2005) on SSRN. Here is the abstract:
Bernstein on Bolling David E. Bernstein (George Mason University - School of Law) has posted Bolling, Equal Protection, Due Process, and Lochnerphobia on SSRN. Here is the abstract:
Perez on Institutionalizing Inconsistency Oren Perez (Bar-Ilan University, Faculty of Law) has posted The Institutionalization of Inconsistency: From Fluid Concepts to Random Walk (PARADOXES AND INCONSISTENCIES IN LAW, O. Perez and G. Teubner, eds., Oxford: Hart Publishing, 2005/6) on SSRN. Here is the abstract:
Lobel & Lowenstein on Symbolism in Foreign Policy & International Law Jules Lobel and George Loewenstein (University of Pittsburgh School of Law and Carnegie Mellon University - Department of Social and Decision Sciences) have posted Emote Control: the Substitution of Symbol for Substance in Foreign Policy and International Law (Chicago Kent Law Review, Vol. 80, July 2005) on SSRN. Here is the abstract:
Thursday, July 21, 2005
Quibbles There is a generally quite good article on the front page of today's Wall Street Journal entitled In Re Judge Roberts: Question Of 'Originalism' Looms Large by Jess Bravin, but I have a theoretical quibble or two:
Quibble Two: Everyone Interprets "In Light of Evolving Standrads of Decency" Here is the passage:
Quibble Three: Examples Must be Explained Here is the passage:
Leib on Contract Types and Contract Theories Ethan Leib has posted On Collaboration, Organizations, and Conciliation in the General Theory of Contract on SSRN. Here is the absract:
Choper on the Political Question Doctrine Jesse H. Choper (University of California, Berkeley - School of Law (Boalt Hall)) has posted The Political Question Doctrine: Suggested Criteria (Duke Law Journal, Forthcoming) on SSRN. Here is the abstract:
Sany on the Separation Barrier Cases Yuval Shany (Law School, College of Management Academic Studies) has posted Capacities and Inadequacies: A Look at the Two Separation Barrier Cases (Israel Law Review, Vol. 38, pp. 230-246, 2005) on SSRN. Here is the abstract:
Sedley on the Future of Human Rights Stephen Sedley (The Royal Courts of Justice - England and Wales) has posted The Rocks or the Open Sea: Where is the Human Rights Act Heading? (Journal of Law and Society, Vol. 32, No. 1, pp. 3-17, March 2005) on SSRN. Here is the abstract:
Roberts Won't "Bork" Himself in Public I've been reviewing John Robert's opinions and other legal writings since the nomination was announced. There are some clues to his views about legal theory--more on that in the weeks to come--but I already have one firm prediction: Roberts won't "Bork" himself in public. Robert Bork's public persona--his character and manner of self-presentation--were shaped by his academic career. The academic life shapes character and behavior in ways that have the potential for both good and ill. Serious academics are encouraged to "spout off"--to express their opinions and ideas. Law professors are used to an environment of intellectual inequality--the paradigm teaching experience is Socratic dialogue in a first-year classroom. "Bork" has become a verb--we talk about someone getting "Borked," referring to the intense and partisan atmosphere of his confirmation process. But I should like to suggest that Bork "Borked" himself--that he said far too much about ideas that were appropriate for the seminar room but out-of-place in the hearing room. But John Roberts is no Robert Bork. His temperment and personal style have been shaped by the experience of high-level legal practice, including the exacting crucible of Supreme Court advocacy. That experience encourages humility, self-restraint, and caution about the expression of ideas. Do not expect John Roberts to be goaded into expressing dogmatic opinions about particular issues or high constitutional theory. Do not expect Roberts to articulate controversial views about originalism or any other "ism." In other words, do not expect John Roberts to "Bork" himself. Of course, there are others who will attempt to "Bork" John Roberts--to draw controversial and political contentious implications from his writings and opinions. But if we set aside the controversial positions, he took in written briefs--as we should, it is already becoming clear that it will be very difficult to "Bork" Roberts on the basis of his judicial opinions or articles. What John Roberts has written in his own voice reflects the character shaped by his life as a lawyer. Roberts hasn't "Borked" himself yet. Don't expect it to happen soon.
Ethics of Blogging Survey Some months ago, I participated in a survey on the ethics of blogging. You can view the results here. Here is a taste from the analysis, which focuses in part on the distinction between "personal" and "non-personal" bloggers:
Update: And check out this post by Larry Ribstein.
Wednesday, July 20, 2005
Barnett on Roberts Check out Randy Barnett's Who is John Roberts? Who knows? as the Conspiracy. Here's a taste:
Lipshaw on the Duty Not to Enforce a Promise The always interesting Jeff Lipshaw has posted Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise on SSRN. Here is the abstract:
Farrelly on Left-Libertarianism Colin Farrelly has posted Should the Left Embrace Left-Libertarianism on SSRN. Here is a taste:
Guiora on Counter-Terrorism & the Rule of Law Amos N. Guiora (Case Western Reserve University School of Law) has posted Counter-terrorism and the Rule of Law on SSRN. Here is the abstract:
Tuesday, July 19, 2005
Debate on Judicial Review in Dissent Check this out! It begins with:
Burgess-Jackson on Fish Keith Burgess-Jackson takes Stanley Fish to task for failing to acknowledge the distinction between "speakers meaning" and "sentence meaning". Here's a taste:
Update: See also Mike Rappaport's post here and this post by Jim Lindgren.
John G. Roberts, Jr. . . . is reportedly President Bush's nominee. Here is his out-of-date bio from Westlaw:
Link for Gardner's Paper My apologies for omitting the link to John Gardner's paper. (Scroll down for an excerpt.) Here's the link: Law's Aim in Law's Empire.
Streumer Reviews Audi On Notre Dame Philosophical Reviews, Bart Streumer, Fitzwilliam College, Cambridge University, reviews Robert Audi, The Good in the Right: A Theory of Intuition and Intrinsic Value. Here is a taste:
"International Justice" Entry Posted on the Stanford Encyclopedia of Philosophy Michael Plake has posted International Justice on the Stanford Encyclopaedia of Philosophy. Here is a taste:
Davenport Review Religion and the Liberal Polity On Notre Dame Philosophical Reviews, John J. Davenport, Fordham University, reviews Religion and the Liberal Polity, Terence Cuneo, ed., Religion and the Liberal Polity, University of Notre Dame Press, 2005, 280pp, $22.00 (pbk), ISBN 0268022895. Here is a taste:
Monday, July 18, 2005
Guiora on Targeted Killing Amos N. Guiora (Case Western Reserve University School of Law) has posted Targeted Killing as Active Self-Defense (Case Western Reserve Journal of International Law, Vol. 36, p. 319, 2004) on SSRN. Here is the abstract:
Gardner on Law's Aim John Gardner (Oxford) has posted Law's Aim in Law's Empire. Gardner is deep, interesting, sophisticated, and works from a perspective that is very much his own. Here is a taste from the introduction of the paper:
Ronald Dworkin belongs to a long tradition of writers who hold, by contrast, that law has some purpose that is both unifying and distinctive. His book Law’s Empire is an unusual contribution to this tradition in that it stands for the view that law must have a unifying-and-distinctive purpose, but it does not commit itself to a final view on what this purpose is.3 In chapter 3 of Law’s Empire, Dworkin provisionally attributes a purpose to law in order to ‘organize[ ] further argument about law’s character’.4 Even if he has this purpose wrong, he argues, some unifying-and-distinctive purpose for law must be relied upon if arguments about the nature of law are to get off the ground. We need ‘a statement of the central concept of [our] institution that will allow [us] to see our arguments … as arguments over rival conceptions of that concept.’5 To furnish such a ‘conceptual statement’6 in the case of law, he says, we must find ‘the most abstract and fundamental point of legal practice’.7 For law is an ‘interpretive enterprise’8 and this means that those who are interested in finding out what (else) is true about law have to begin by taking an ‘interpretive attitude’ to their subject. This in turn means starting from the assumption that law ‘has some point’ that sets it apart and brings it together it as the particular interpretive enterprise that it is.