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.
Wednesday, August 31, 2005
Fleischer on Deal Structure Branding Victor Fleischer (University of California, Los Angeles - School of Law) has posted Brand New Deal: The Google IPO and the Branding Effect of Corporate Deal Structures on SSRN. Here is the abstract:
Fondacaro, Slobogin and Cross on Due Process in Juvenile Justice Mark R. Fondacaro , Christopher Slobogin and Tricia Cross (University of Florida, Levin College of Law , University of Florida, Levin College of Law and Arnold & Porter) have posted Reconceptualizing Due Process in Juvenile Justice: Contributions from Law and Social Science on SSRN. Here is the abstract:
Monday, August 29, 2005
Prize Announcement: The Dennis Leslie Mahoney Prize in Legal Theory
Chen on Phagism Jim Chen (University of Minnesota Law School) has posted The Phages of American Law (UC Davis Law Review, Vol. 36, p. 455, 2003) on SSRN. Here is the abstract:
Ginsburg on Technological Measures Jane C. Ginsburg (Columbia Law School) has posted Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations and the US Experience (Columbia Public Law Research paper No. 05-93) on SSRN. Here is the abstract:
Magarian on Substantive Due Process and Nonpolitical Speech Gregory P. Magarian (Villanova University School of Law) has posted Substantive Due Process as a Source of Constitutional Protection for Nonpolitical Speech (Minnesota Law Review, Vol. 90) on SSRN. Here is the abstract:
Mortensen on Xenotransplantation Melanie J. Mortensen has posted In the Shadow of Doctor Moreau: A Contextual Reading of the Proposed Canadian Standard for Xenotransplantation (University of Ottawa Law & Technology Journal, Vol. 2, No. 1, p. 37, 2005) on SSRN. Here is the abstract:
Madison on Social Software Michael J. Madison (University of Pittsburgh School of Law) has posted Social Software, Groups, and Law on SSRN. Here is the abstract:
New from Law & Politics Book Review
REGULATING PROCUREMENT: UNDERSTANDING THE ENDS AND MEANS OF PUBLIC PROCURMENT REGULATION, by Peter Trepte. Oxford: Oxford University Press, 2004. 428pp. Hardback. £65.00 / $135.00. ISBN: 0-19-826775-4. Reviewed by Robert M. Howard.
LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE, by Cass R. Sunstein. New York: Cambridge University Press, 2005. 246pp. Hardback. £40.00/$65.00. ISBN: 0521848237. Paperback. £15.99/$23.00. ISBN: 0521615127. Reviewed by Sanford Levinson. Be sure to read this one!
RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE, by Wojciech Sadurski. Dordrecht, The Netherlands: Kluwer Academic Publishers, 2005. 377pp. Hardcover. $199.00 / €150,00 / £104.00. ISBN: 1-4020-3006-1. Reviewed by Lynn M. Maurer.
RELIGION ON TRIAL: HOW THE SUPREME COURT TRENDS THREATEN FREEDOM OF CONSCIENCE IN AMERICA, by Phillip E. Hammond, David W. Machacek, and Eric Michael Mazur. Walnut Creek, California: AltraMira Press, 2004. 160pp. Paper. $19.95. ISBN: 0-7591-0601-0. Cloth. $65.00. ISBN: 0-7591-0600-2. Reviewed by Mark C. Modak-Truran.
Sunday, August 28, 2005
The Politics of Federal Judicial Selection David Law and I have posted a new paper on SSRN: Pivotal Politics, Appointments Gridlock, and the Nuclear Option. Comments would be very welcome! Here is the abstract:
Black & Caron on Raking Law Schools Bernard S. Black and Paul L. Caron (University of Texas at Austin - School of Law and University of Cincinnati College of Law) have posted Ranking Law Schools: Using SSRN to Measure Scholarly Performance (Indiana Law Journal, Vol. 81, 2005, Symposium on The Next Generation of Law School Rankings) on SSRN. Here is the abstract:
Krent on the Continuity Principle Harold J. Krent (Chicago-Kent College of Law) has posted The Continuity Principle, Administrative Constraint, and the Fourth Amendment on SSRN. Here is the abstract:
Chen on Biopiracy Jim Chen (University of Minnesota Law School) has posted There's No Such Thing as Biopiracy ... And It's a Good Thing Too (McGeorge Law Review, Vol. 36, 2005) on SSRN. Here is the abstract:
Smith on Barnett Douglas G. Smith has posted Does the Constitution Embody a Presumption of Liberty? (University of Illinois Law Review, No. 1, 2005) on SSRN. Here is the abstract:
Legal Theory Calendar
Legal Theory Lexicon: Ex Ante/Ex Post If I had to select only one theoretical tool for a first-year law student to master, it would be the ex post/ex ante distinction. (Of course, this is cheating, because there is a lot packed into the distinction.) The terminology comes from law and economics, and here is the basic idea:
Why is the distinction between ex ante and ex post so important? Because it marks an important theoretical divide between consequentialist and deontological approaches to legal theory. Consequentialists, we might say, simply don't care about the question whether A has violated the rights of B, for their own sake. Rather, a consequentialist cares about the consequences of attaching liability to those who act like A did. Ex ante, is a strict liability rule or a negligence rule more efficient? Deontologists, on the other hand, care very much about who has acted rightly and wrongly. In tort law, for example, corrective justice theories of tort are associated with the ex post perspective. A should be liable to B, only if A has acted wrongly.
If you are a first-year law student, you might make a habit of asking yourself questions like the following:
Will the rule produce good consequences (as compared to the alternatives) from an ex ante perspective?
Friday, August 26, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Divided by God: America's Church-State Problem--and What We Should Do About It by Noah Feldman. Here is a blurb:
Download of the Week The Download of the Week is Detection Avoidance by Chris Sanchirico. Here is the abstract:
Thursday, August 25, 2005
Citation Networks I strongly recommend that you take a quick look at The wisdom of Hercules, a short piece in the Economist on modeling and analysis of Supreme Court decisions and their citation networks. Here is a taste:
Steinman on Celotext Adam Steinman (University of Cincinnati - College of Law) has posted The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy on SSRN. Here is the abstract:
Chen on Coffee Jim Chen (University of Minnesota Law School) has posted Around the World in Eighty Centiliters (Minnesota Journal of International Law, Vol. 15, p. 11, 2006) on SSRN. Here is the abstract:
RIles & Jean-Klein on Anthropology & Human Rights Annelise Riles and Iris E.F. Jean-Klein (Cornell University - School of Law and Edinburgh University) have posted Introducing Discipline: Anthropology and Human Rights Administrations (Political and Legal Anthropology Review, Fall 2005) on SSRN. Here is the abstract:
Klemperer on Bidding Markets Paul Klemperer (University of Oxford - Department of Economics) has posted Bidding Markets on SSRN. Here is the abstract:
Conference Announcement: Lawyers & Wars
Rappaport on Stevens Over at The Right Coast, Mike Rappaport has a post entitled Justice Stevens, Judicial Restraint, and Spin. Here's a taste:
Commentary on Lipkin Over at Law & Society Blog, check out What Harm in Same-Sex Marriage? which comments on Robert J. Lipkin's The Harm of Same-Sex Marriage: Real or Imagined?.
Purdy on Waste Jedediah Purdy (Duke) has posted The American Transformation of Waste Doctrine: A Pluralist Interpretation on SSRN. Here is the abstract:
Wednesday, August 24, 2005
Chen on Biodiverstiy Jim Chen (University of Minnesota Law School) has posted Biodiversity and Biotechnology: A Misunderstood Relation (Michigan State Law Review, Vol. 51, 2005) on SSRN. Here is the abstract:
Bandes on the Lessons of Capturing the Friedmans Susan Bandes (DePaul University College of Law) has posted The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial, and Due Process (Law, Culture and the Humanities, Forthcoming) on SSRN. Here is the abstract:
Spencer on Personal Jurisdiction A. Benjamin Spencer (University of Richmond School of Law ) has posted Jurisdiction to Adjudicate: A Revised Analysis (University of Chicago Law Review, Vol. 73, Spring 2006) on SSRN. Here is the abstract:
Brown, Touchton & Whitford on Polarization & Corruption David Brown , Michael Touchton and Andrew B. Whitford (University of Colorado at Boulder - Department of Political Science , University of Colorado at Boulder - Department of Political Science and University of Georgia - Department of Public Administration and Policy) have posted Political Polarization as a Constraint on Government: Evidence from Corruption on SSRN. Here is the abstract:
Lipkin on the Harm of Same-Sex Marriage Robert Justin Lipkin has posted The Harm of Same-Sex Marriage: Real or Imagined? on SSRN. Here is the abstract:
Purdy on a Freedom-Promoting Approach to Property Jedediah Purdy (Duke) has posted A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates on SSRN. Here is the abstract:
Drahozal on Arbitration Costs & Contingent Fee Contracts Christopher R. Drahozal (University of Kansas School of Law) has posted Arbitration Costs and Contingent Fee Contracts on SSRN . Here is the abstract:
Czarnezki & Ford on Legal Interpretation Jason J. Czarnezki and William K. Ford (Marquette University - Law School and University of Chicago - Law School) have posted The Phantom Philosophy? An Empirical Investigation of Legal Interpretation on SSRN. Here is the abstract:
Beny on Diversity in Elite American Law Firms Laura N. Beny (University of Michigan at Ann Arbor Law School) has posted Reflections on The Diversity-Performance Nexus among Elite American Law Firms: Toward a Theory of a Diversity Norm on SSRN. Here is the abstract:
Chen on the Iowa Utilties Board Litigation Jim Chen (University of Minnesota Law School) has posted TELRIC in Turmoil, Telecommunications in Transition: A Note on the Iowa Utilities Board Litigation (Wake Forest Law Review, Vol. 33, p. 51, 1998) on SSRN. Here is the abstract:
Tuesday, August 23, 2005
Colburn on Restoring Wildlife Habitat Jamison Colburn (Western New England College School of Law) has posted Localism's Ecology: Protecting and Restoring Wildlife Habitat in the Suburban Nation on SSRN. Here is the abstract:
Skovsgaard and Giovannoni on Critical Decisions & Constitutional Rules Toke Skovsgaard Aidt and Francesco Giovannoni (University of Cambridge - Faculty of Economics and Politics and University of Bristol - Department of Economics) have posted Critical Decisions and Constitutional Rules on SSRN. Here is the abstract:
Brooks on the Corporate Tax Kimberley Brooks (University of British Columbia - Faculty of Law) has posted Learning to Live with an Imperfect Tax: A Defence of the Corporate Tax (University of British Columbia Law Review, Vol. 36, p. 621, 2003) on SSRN. Here is the abstract:
Stuntz on Criminal Justice William J. Stuntz (Harvard Law School) has posted The Political Constitution of Criminal Justice on SSRN. Here is the abstract:
Anabtawi is Skeptical About Increasing Shareholder Power Iman Anabtawi (University of California, Los Angeles - School of Law) has posted Some Skepticism about Increasing Shareholder Power on SSRN. Here is the abstract:
Monday, August 22, 2005
Junior Scholars Workshop at the Conglomorate Check this out:
Rappaport on an Amendment to Overrule Kelo Michael Rappaport posts Overruling Kelo on The Right Coast. Here is a taste:
Bernstein on Berger-Twerski on Daubert David Bernstein (George Mason) has posted Learning the Wrong Lessons from 'An American Tragedy': A Critique of the Berger-Twerski Informed Choice Proposal on SSRN. Here is the abstract:
Leitzel on Vice Regulation James A. Leitzel (University of Chicago) has posted From Harm to Robustness: A Principled Approach to Vice Regulation on SSRN. Here is the abstract:
Korobkin on Rankings Russell B. Korobkin (University of California, Los Angeles - School of Law) has posted Harnessing the Positive Power of Rankings: A Response to Posner and Sunstein on SSRN. Here is the abstract:
Anderson on Negotiating Sex Michelle J. Anderson (Villanova University School of Law) has posted Negotiating Sex (Southern California Law Review, Vol. 41, p. 101, 2005) on SSRN. Here is the abstract:
Sanchirico on Detection avoidance Chris William Sanchirico (University of Pennsylvania Law School) has posted Detection Avoidance on SSRN. Here is the abstract:
Sunday, August 21, 2005
Conference Announcement: Comparative Intellectual Property at Ottawa
Saturday, August 20, 2005
Conference Announcement: The Jurisprudence of Justice Stevens