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, December 31, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Hegel: Elements of the Philosophy of Right by Georg Wilhelm Fredrich Hegel. A classic! As an undergraduate, I took a graduate seminar on Hegel's philosophy of right with Josh Cohen. It is an immensely rich text--one that deserves serious attention from legal theorists. Here's a blurb:
Download of the Week The Download of the Week is Contract as Statute by Stephen J. Choi and G. Mitu Gulati. Here's the abstract & you can scroll down to Friday for some comments:
Breyer beats out Scalia Check out So, Guy Walks Up to the Bar, and Scalia Says... in today's New York Times. Here's a taste:
Friday, December 30, 2005
Choi & Gulati on Contract as Statute Stephen J. Choi and G. Mitu Gulati (New York University - School of Law and Georgetown University Law Center) have uploaded Contract as Statute to SSRN. Here is the abstract:
Thai on Justice Stevens Joseph T. Thai (University of Oklahoma - College of Law) has uploaded John Paul Stevens (Encyclopedia of American Civil Liberties, Routledge, 2006) to SSRN. Here is the abstract:
Thursday, December 29, 2005
Call for Papers: Computers, Freedom, & Privacy
Anand on Sarbox & Corporate Governance Anita I. Anand (Yale Law School) has posted An Analysis of Enabling vs. Mandatory Corporate Governance Structures Post Sarbanes-Oxley on SSRN. Here is the abstract:
Perez on Linkage & the WTO Oren Perez (Bar-Ilan University, Faculty of Law) has posted Multiple Regimes, Issue Linkage and International Cooperation: Exploring the Role of the WTO (University of Pennsylvania Journal of International Economic Law, Spring 2006) on SSRN. Here is the abstract:
Mootz on Neitzsche Francis Joseph Mootz III (Pennsylvania State University - The Dickinson School of Law) has posted Responding to Nietzsche: The Constructive Power of Destruktion (Law, Culture and the Humanities, 2006) on SSRN. Here is the abstract:
Wednesday, December 28, 2005
Concerence Announcment: European Socio-Legal Conference
Duncan on Remorseless Children Martha Grace Duncan (Emory University - School of Law) has posted 'So Young And So Untender' Remorseless Children and the Expectations of the Law (Columbia Law Review, Vol. 102, p. 1469, 2002) on SSRN. Here is the abstract:
Richman, Weinstock and Mehta on Rockingham County v. Luten Bridge Co. Barak D. Richman , Jordi Weinstock and Jason Mehta (Duke University School of Law , Duke University - School of Law and Harvard University - Harvard Law School) have posted A Bridge, a Tax Revolt, and the Struggle to Industrialize: The Story and Legacy of Rockingham County v. Luten Bridge Co. on SSRN. Here is the abstract:
Rosenfeld on Derrida's Ethical Turn, Terrorism, and Enlightenment Michel Rosenfeld (Cardozo Law School) has posted Derrida’s Ethical Turn and America: Looking Back from the Crossroads of Global Terrorism and the Enlightenment (Cardozo Law Review, Vol. 27, 2006) on SSRN. Here is the abstract:
Goldberg on Wood v. Lucy, Lady Duff-Gordon Victor P. Goldberg (Columbia Law School) has posted Reading Wood v. Lucy, Lady Duff-Gordon with Help from the Kewpie Dolls on SSRN. Here is the abstract:
Tuesday, December 27, 2005
Berman on the End of Conflicts Harold Berman (Emory University - School of Law) has posted Is Conflict of Laws Becoming Passe? An Historical Response (BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY ZUM 70. GEBURTSTAG, Hans-Eric Rasmussen-Bonne, Richard Freer, Wolfgang Lüke, Wolfgang Weitnauer, eds., Verlag Recht und Wirtschaft GmbH, 2005) on SSRN. Here is the abstract:
Gervais on IP, Trade, & Development Daniel J. Gervais (University of Ottawa - Common Law) has posted Intellectual Property, Trade & Development: The State of Play (Fordham Law Review, Vol. 74, pp. 505-535, 2005) on SSRN. Here is the abstract:
Haynes on Prosecuting Traffickers Dina Francesca Haynes (University of Nevada, Las Vegas - William S. Boyd School of Law) has posted Used, Abused, Arrested and Deported: Extending Immigration Benefits to Protect the Victims of Trafficking and Secure the Prosecution of Traffickers (Human Rights Quarterly, Vol. 26, No. 2, May 2004) on SSRN. Here is the abstract:
Roberts on Jurisdiction Stripping Caprice L. Roberts (West Virginia University College of Law) has posted Jurisdiction Stripping in Three Acts - Three String Serenade (Villanova Law Review, Vol. 51, 2006) on SSRN. Here is the abstract:
Monday, December 26, 2005
Weekend Update On Saturday, the Legal Theory Bookworm recommended Democratic Autonomy: Public Reasoning about the Ends of Policy by Henry Richardson, and the Download of the Week was Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis by Peter H. Huang. On Sunday, the Legal Theory Lexicon entry was on Originalism.
Best wishes to everyone for a joyous holiday season!
Meehan on Patentable Subject Matter Dr. Michael Meehan (Stanford Law School) has posted The Handiwork of Nature: Patentable Subject Matter and Laboratory Corporation v. Metabolite Labs on SSRN. Here is the abstract:
Green on Subsidies & Environmental Norms Andrew James Green (University of Toronto - Faculty of Law) has posted You Can't Pay Them Enough: Subsidies, Environmental Law and Social Norms (Harvard Environmental Law Review, Vol. 30, No. 2) on SSRN. Here is the abstract:
Oestreicher-Singer and Sundararajan on Valuing Digital Rights Gal Oestreicher-Singer and Arun Sundararajan (New York University - Leonard N. Stern School of Business and New York University - Leonard N. Stern School of Business) have posted Are Digital Rights Valuable? Theory and Evidence from eBook Pricing on SSRN. Here is the abstract:
Basheer on Baazee Shamnad M. Basheer (University of Oxford - Oxford Intellectual Property Research Centre (OIPRC)) has posted Baazee, Bajaj, and Bailing out the Law (BAAZEE, BAJAJ, AND BAILING OUT THE LAW, Economic Times, February 5, 2005) on SSRN. Here is the abstract:
Sunday, December 25, 2005
Legal Theory Lexicon: Originalism
The Originalist Revival No one scholar or judge can deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. At various points in time, both sides have claimed the upper hand, but at the level of theory, the case for originalism has always been contested.
Originalism is not an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan's nomination of Robert Bork (an avowed originalist) was one key moment--with his defeat by the democrats seen as a political rejection of originalism. The current Supreme Court has at least three members who seem strongly influenced by originalist constitutional theory--Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas.
The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. Two developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court--We the People: Foundations, published in 1991. Second, Randy Barnett (along with Richard Epstein, the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists. Ackerman and Barnett represent two trends in originalist thinking: (1) the political orientation of originalism has broadened from conservatives to liberals and libertarians, and (2) the theoretical structure of originalism has morphed and diversified from the early emphasis on "the original intentions of the framers." After the publication of Paul Brest's Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is more likely to hear pronouncements that "we are all originalists, now."
Original Intentions Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as "intentions," e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality--leading to the conclusion that segregation is unconstitutional--or at a very particular level--in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the "separate but equal" principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles.
Yet another challenge to original-intent originalism was posed by Jefferson Powell's famous article, The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell's critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating if Powell's historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers' resistance to originalism were quite powerful. Especially important was the idea that "secret intentions" or "hidden agendas" had no legitimate role to play in constitutional meaning. In the end, however, Powell's article actually had the effect of turning originalism in a new direction--from original intention to original meaning.
Original Meaning The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.
The concept of original meaning originalism in its modern incarnation has been attributed to Justice Scalia, who is reported to have introduced the idea in a series of lectures in the 1980s; his essay, Originalism, The Lesser Evil, published in 1989, focuses on "original understanding" rather than "original intent." The idea has also been traced to a brief mention in Robert Bork's The Tempting of America, but Bork did not develop the idea extensively. Original-meaning originalism was develped more extensively by Justice Scalia in his opening essay in A Matter of Interpretation. Although the distinction between original meaning and original intent can be found in a variety of early contemporary sources including an article by Robert Clinton in 1987, the systematic development of original-meaning originalism is a relatively recent phenomenon. Original meaning originalism receives its most comprehensive explication and defense in Randy E. Barnett's new book, Restoring the Lost Constitution: The Presumption of Liberty--a systematic development of the original meaning approach and critique of the original intention theory.
Regime Theory Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted.
Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s.
Originalism and Precedent Whither originalism? Given the ups and downs of originalism over the past three decades, making long-term predictions seems perilous indeed. But I will make one prediction about the future of originalism. We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent--both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Already, originalists of various stripes are beginning to debate the role of precedent in an originalist constitutional jurisprudence. Given the conferences and papers that are already in the works, I think that I can confidently predict that the debate over originalism and stare decisis will be the next big thing in the roller-coaster ride of originalist constitutional theory.
Bibliography This very selective bibliography includes some of the articles that have been influential in the ongoing debates over originalism.
Saturday, December 24, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Democratic Autonomy: Public Reasoning about the Ends of Policy by Henry Richardson. Here's a blurb:
Download of the Week The Download of the Week is Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis by Peter H. Huang. Here is the abstract:
Friday, December 23, 2005
Macklin on the Safe Third Country Agreement Audrey Macklin (University of Toronto - Faculty of Law) has posted Disappearing Refugees: Reflections on the Canada-US Safe Third Country Agreement (Columbia Human Rights Law Review Vol. 36, pp. 365-426, 2005) on SSRN. Here is the abstract:
Horwitz on Blogs and the Law Paul Horwitz (Southwestern University School of Law) has posted Or of the [Blog] on SSRN. Here is the abstract:
Donohue & Wolfers on Empirical Evidence in the Death Penalty Debate John J. Donohue III and Justin Wolfers (Yale Law School and University of Pennsylvania - Business & Public Policy Department) have posted Uses and Abuses of Empirical Evidence in the Death Penalty Debate (Stanford Law Review, Vol. 58, December 2005) on SSRN. Here is the abstract:
Maillard on the Pocahontas Exception Kevin Noble Maillard (Syracuse University College of Law) has posted The Pocahontas Exception: American Indians and Exceptionalism in Antimiscegenation Law on SSRN. Here is the abstract:
Thursday, December 22, 2005
Koplow on Lethal Weapons David A. Koplow (Georgetown University Law Center) has posted Tangled up in Khaki and Blue: Lethal and Non-Lethal Weapons in Recent Confrontations (Georgetown Journal of International Law, Vol. 36, p. 703, 2005) on SSRN. Here is the abstract:
Gibbons & Grabau on Linguistic Minorities Llewellyn Joseph Gibbons and Charles M. Grabau (University of Toledo - College of Law and Independent) has posted Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation (New England Law Review, Vol. 30, No. 227, 1996) on SSRN. Here is the abstract:
Drobac on Adolescent Consent Jennifer Ann Drobac (Indiana University School of Law - Indianapolis) has posted 'Developing Capacity': Adolescent 'Consent' at Work, at Law, and in the Sciences of the Mind (Journal of Juvenile Law & Policy, Vol. 10, No. 1, 2006) on SSRN. Here is the abstract:
Huang on Cost-Benefit Analyhsis in Financial Regulation Peter H. Huang (Temple University - James E. Beasley School of Law) has posted Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis on SSRN. Here is the abstract:
Wednesday, December 21, 2005
Hatcher on Anime Online Jordan S. Hatcher (University of Texas at Austin) has posted Of Otaku and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law (Sript-ed, Vol. 2, No. 4, 2005) on SSRN. Here is the abstract:
GIbbons on Naughty Bytes Llewellyn Joseph Gibbons (University of Toledo - College of Law) has posted Digital Bowlderizing: Removing the Naughty Bytes (Michigan State Law Review, Vol. 167, 2005) on SSRN. Here is the abstract:
Shepherd on Fee Shifting George B. Shepherd (Emory University School of Law) has posted The Impacts of the European Rule for Fee-Shifting on Litigation Behavior (BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY ZUM 70. BEBURTSTAG, Hans-Eric Rasmussen-Bonne, Richard Freer, Wolfgang Luke and Wolfgang Weitnauer, eds., Verlag Recht und Wirtschaft GmbH, 2005) on SSRN. Here is the abstract:
Call for Papers: Action, Ethics, and Responsibility
Tuesday, December 20, 2005
H.L.A. Hart Fellowships at Oxford
Call for Papers: Philosophy & Cognitive Science
Monday, December 19, 2005
Call for Papers: Comparative Law Work in Progress