Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 10/01/2002 01/01/2003 - 02/01/2003 02/01/2003 - 03/01/2003 03/01/2003 - 04/01/2003 04/01/2003 - 05/01/2003 05/01/2003 - 06/01/2003 06/01/2003 - 07/01/2003 07/01/2003 - 08/01/2003 08/01/2003 - 09/01/2003 09/01/2003 - 10/01/2003 10/01/2003 - 11/01/2003 11/01/2003 - 12/01/2003 12/01/2003 - 01/01/2004 01/01/2004 - 02/01/2004 02/01/2004 - 03/01/2004 03/01/2004 - 04/01/2004 04/01/2004 - 05/01/2004 05/01/2004 - 06/01/2004 06/01/2004 - 07/01/2004 07/01/2004 - 08/01/2004 08/01/2004 - 09/01/2004 09/01/2004 - 10/01/2004 10/01/2004 - 11/01/2004 11/01/2004 - 12/01/2004 12/01/2004 - 01/01/2005 01/01/2005 - 02/01/2005 02/01/2005 - 03/01/2005 03/01/2005 - 04/01/2005 04/01/2005 - 05/01/2005 05/01/2005 - 06/01/2005 06/01/2005 - 07/01/2005 07/01/2005 - 08/01/2005 08/01/2005 - 09/01/2005 09/01/2005 - 10/01/2005 10/01/2005 - 11/01/2005 11/01/2005 - 12/01/2005 12/01/2005 - 01/01/2006 01/01/2006 - 02/01/2006 02/01/2006 - 03/01/2006 03/01/2006 - 04/01/2006 04/01/2006 - 05/01/2006 05/01/2006 - 06/01/2006 06/01/2006 - 07/01/2006 07/01/2006 - 08/01/2006 03/01/2011 - 04/01/2011 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Berkeley) eScholarship Repository +Law and Politics Book Reviews +Metapsychology Book Reviews +Notre Dame Philosophical Review +Online Papers in Philosophy +PoliticalTheory.info +SSRN Most Recent Uploads More Blogs of Interest --Althouse (Ann Althouse) --Asymmetrical Information (Jane Galt) --bIPlog (Group Blog) --The Blawg Review (Group Blog) --Brad DeLong --The Buck Stops Here (Stuart Buck) --Copyfight (Group Blog) --A Copyfighter's Musings (Derek Slater) --The Curmudgeonly Clerk --Daniel Drezner --Discriminations (John and Jessie Rosenberg) --Eastmania (Wayne Eastman) --EveTushnet.com (Eve Tushnet) --Freespace (Timothy Sandefur) --Furdlog Frank Field --Ideoblog (Larry Ribstein) --The Importance Of (Ernest Miller) --The Indiana Law Blog (Marcia J. 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Berkeley) --NYU Colloquium in Legal, Political and Social Philosophy --Oxford Jurisprudence Discussion Group --Oxford Legal Philosophy --Oxford Centre for Ethics & Philosophy of Law --Queen's University Belfast Forlum for Law and Philosophy --Rutgers Institute for Law and Philosophy --UCLA Legal Theory Workshop --University of Pennsylvania Institute for Law and Philosophy --University College London: Colloquium in Legal and Social Philosophy --University of Chicago Law And Philosophy Workshops --University of Chicago: John M. Olin Program in Law and Economics Workshop --University of San Diego Institute for Law and Philosophy --University of Texas Law and Philosophy Program --Yale Law School: Legal Theory Workshop Links to Law School Workshops +Australian National University Faculty Events +Boston University +Buffalo +Columbia Center for Law and Economic Studies +Florida State +Fordham +George Mason +George Washington--IP Workshop Series +Georgetown Colloquium on Intellectual Property & Technology Law +Georgetown Law Workshops +Georgetown Law and Economics Workshop +Georgetown Law & Economics Workshop Series +Hofstra +University of Illinois +Lewis & Clark +Loyola Marymount +New York University +NYU Legal History Colloquium +Northwestern Law Colloquium +Oxford Law Events +Rutgers, Camden +Stanford Center for Internet & Society +Stanford Law School Olin Series +UCLA Colloquium +UCLA Legal History Workshop +UCLA Tax Policy --University of Chicago: John M. Olin Program in Law and Economics Workshop +University of Michigan Law and Economics +University of San Diego Colloquium Series +University of Texas Colloquium Series +Vanderbilt Scholarly Programs & Events Calendar +Villanova +Washington & Lee Faculty Workshops +Yale Law, Economics & Organizations Workshop Calendars & Events +Aristotelian Society +British Society for Ethical Theory +Conference Alerts +Events in Analytic Philosophy in Europe (and Overseas Countries) +The Philosophical Calendar +Philosophy Now Calendar +Political Science Online Upcoming Conferences +SSRN Professional Announcements Other Programs --Australian National University, Research School of Social Science, Philosophy Seminars --Boston University Philosophy Colloquia --Brown University Philosoophy Upcoming Events George Mason Workshop in Philosophy, Politics, and Economics --Harvard University, Philosophy Colloquia --MIT Philosophy Colloquia --New York University, Philosophy Events --Oxford: Events at the Faculty of Philosophy --Princeton University: Philosophy Department Talks --Princeton University: Political Philosophy Colloquium --Princeton University: Public Law Colloquium --Princeton University: Seminar in Law and Public Affairs --Tulane Philosophy and Center for Ethics & Public Affairs Seminars --University College, London: Political Theory Seminars --University of Arizona Philosophy Colloquia --University of Bristol Philosophy Research Seminars --University of California at Berkeley Philosophy Events --University of California at San Diego Philosophy Colloquia --University of Chicago Political Theory Workshop --University of London, School of Advanced Study, Philosophy Programme --University of Manchester Politics & Philosophy Research Seminars --University of Melbourne Philosophy Events --University of North Carolina: Philosophy Speakers --University of Pennsylvania: Philosophy Colloquiua --University of Pittsburgh Philosophy Calendar --Yale Philosophy Department Talks Some Legal Theorist Homepages --Robert Alexy (Christian Albrechts University Kiel) --Randy Barnett (BU) --Brian Bix (Minnesota) --Jules Coleman(Yale Law & Philosophy) --Ronald Dworkin(NYU & University College) --John Finnis(Oxford and Notre Dame) --John Gardner (Oxford) --Brian Leiter (Texas) --Micahel Moore (Illinois) --Dennis Patterson (Rutgers, Camden) --Stephen Perry (NYU) --Richard Posner (University of Chicago & USCA7) --Joseph Raz (Oxford and Columbia) --Jeremy Waldron (Columbia More to come! Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Tuesday, February 28, 2006
Board Turnovers & New Volume Submissions I am very pleased (and relieved) to report that Kaimi Wenger is collecting information about law review board transitions and dates for submissions for next year's volumes at Concurring Opinions. Follow this link! Tuesday Calendar
Georgetown Colloquium on Constitutional Theory: Steven Teles (government, Center for the Study of American Politics, Yale University), Parallel Paths: The Evolution of the Conservative Legal Movement Georgetown Law: Kathy Zeiler Lewis & Clark Law: Julian Ku, Associate Professor of Law, Hofstra Gubernatorial Foreign Policy. Oxford Human Rights Discussion Group: Caoilfhionn Gallagher, Proportionality in Practice University of Pennsylvania, Tax Policy Workshop: Lily Batchelder, Refundable Credits Yale Legal History: DANIEL ERNST, Georgetown University Law Center, "The Corporate Law Firm in the Liberal State: Legal Divisions in New Deal and Wartime Washington" Loyola University Chicago: Steven Ramirez (Washburn Law School), "Corporate Governance and Race" Monday, February 27, 2006
Lateral Hiring Report Dan Filler is doing data collection on lateral hiring over at Concurring Opinions. Here is the link: Law School Lateral Hiring Report Entry Level Hiring Report The appointments season is winding down, and once again, I will compile an entry-level hiring report. I am interested in all entry-level tenure-track hires at American law schools. Click here to view last year's report. This time around, I am trying to collect the following data elements:
If you are a job candidate, please pass along the email address of the appointments committee chair, so I can find out about other hires. The data element, "pre-tenure track legal academic posititon," is intended to encompass VAPs, Fellowships, and other full-time positions that are intended to lead to a full-time academic job. Email information to me at lsolum@gmail.com Thanks! Update: Reports are already rolling in! Thanks. I'll post an interim report once I have data on a significant number of schools and hires. Adler & Sanchirico on Inequality and Uncertainty Matthew D. Adler & Chris William Sanchirico (Penn Law) have posted Inequality and Uncertainty: Theory and Legal Applications on SSRN. Here is the abstract:
Graetz & Warren on Income Tax Discrimination & European Integration Michael J. Graetz and Alvin C. Warren Jr. (Yale Law School and Harvard University - Harvard Law School) have posted Income Tax Discrimination and the Political and Economic Integration of Europe (Yale Law Journal, April 2006) on SSRN. Here is the abstract:
Wiegand on Conflicts Restatements Shirley Wiegand (Marquette University - Law School) has posted Fifty Conflict of Laws 'Restatements': Merging Judicial Discretion and Legislative Endorsement (Louisiana Law Review, Vol. 65, No. 1, 2005) on SSRN. Here is the abstract:
Weiss on Enforceable Social Clauses Marley S. Weiss (University of Maryland - School of Law) has posted Architectural Digest for International Trade and Labor Law: Regional Free Trade Agreements and Minimum Criteria for Enforceable Social Clauses on SSRN. Here is the abstract:
Bank on Dividens & Tax Policy Steven A. Bank (University of California, Los Angeles - School of Law) has posted Dividends and Tax Policy in the Long Run on SSRN. Here is the abstract:
Sunday, February 26, 2006
Legal Theory Calendar
Georgetown Law & Philosophy: Norman Finkel (Psychology, Georgetown) Yale Workshop Theory & Policy: DALTON CONLEY, Sociology, New York University, Family Background and Race over the Life Course Hofstra Law: Suzanne Goldberg, Rutgers School of Law – Newark, “Constitutional Adjudication, Civil Rights, and Social Change” London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Nicola Knight (Michigan), On some aspects of the psychology of normativity NYU Law: Clay Gillette. UCLA Law: Ann Southworth, "Social Backgrounds and Characteristics of Prominent Lawyers of the Conservative Coalition: Sources of Conflict and Cohesion" University of Alabama Law: Rob Atkinson, Florida State University of Texas Law: Alex Stein (Cardozo), "Ambiguity Aversion and the Criminal Process"
Georgetown Colloquium on Constitutional Theory: Steven Teles (government, Center for the Study of American Politics, Yale University), Parallel Paths: The Evolution of the Conservative Legal Movement Georgetown Law: Kathy Zeiler Lewis & Clark Law: Julian Ku, Associate Professor of Law, Hofstra Gubernatorial Foreign Policy. Oxford Human Rights Discussion Group: Caoilfhionn Gallagher, Proportionality in Practice University of Pennsylvania, Tax Policy Workshop: Lily Batchelder, Refundable Credits Yale Legal History: DANIEL ERNST, Georgetown University Law Center, "The Corporate Law Firm in the Liberal State: Legal Divisions in New Deal and Wartime Washington" Loyola University Chicago: Steven Ramirez (Washburn Law School), "Corporate Governance and Race"
NYU Legal History: Bernadette Meyler, Assistant Professor, Cornell Law School, "Towards a Common Law Originalism” UCLA Legal History Workshop: Risa Goluboff, University of Virginia School of Law, « Back, The Lost Origins of Modern Civil Rights University of Georgia Law: Michael Wells (UGA): "Sociological Legitimacy" in the Supreme Court University of Toronto, Tax Law & Policy Workshops: Reuven Avi-Yonah, University of Michigan The Three Goals of Taxation. Villanova Law: Milton Regan, Georgetown University Law Center UC Hastings: Judge Loren Smith, US Court of Federal Claims, Life, Liberty, and (Whose) Property? with commentary by Prof. Bhagwat, UC Hastings.
Boston University Law: Henry Smith (Visiting Professor of Law, Harvard Law School and Professor of Law & Cognitive Science, Yale Law School), "Modularity in Intellectual Property" Brooklyn Law: Daniel Greenwood, Visiting Professor of Law, Brooklyn Law School, Are Shareholders Entitled to the Residual? Florida State Law: Jill Fisch, Fordham University School of Law Fordham Law: Sonia K. Katyal, Associate Professor of Law, Fordham University School of Law, "Trademark Intersectionality" UC Berkeley Center for Law and Technology & Berkeley Center for Law, Business and the Economy: Symposium on Legal and Policy Issues in Stem Cell Research UC Berkeley, Kadish Center: Hans Sluga, Professor of Philosophy, University of California, Berkeley, The Care of the Common NYU Colloquium on Tax Policy and Public Finance: Joseph Bankman, Stanford Law School, and David Weisbach, University of Chicago Law School, “The Superiority of an Ideal Consumption Tax Over an Ideal Income Tax.” Northwestern Tax Series: Calvin H. Johnson, Andrews & Kurth Centennial Professor, University of Texas at Austin "Tales From the KPMG Skunk Works: The Basis-Shift or Defective-Redemption Shelter" Oxford Jurispurdence Discussion Group: Juan Cruz Parcero, Reasons to Justify Rights Oxford Public International Law Discussion Group: Judge Allan Rosas, International Law in the European Court of Justice Stanford Law & Economics: Marcel Kahan (New York University Law School), "Hedge Funds in Corporate Governance and Corporate Control" University College, London, Current Legal Problems Lecture: Mindy Chen-Wishart, (Merton College Oxford), ‘Undue Influence: Vindicating Relationships of Influence’ University of North Dakota, Indian Law Center: Philip S. (Sam) Deloria, "Indians in Legal Education"
Boston College: Martha L. Minow, Harvard Law School Georgetown Law & Economics: Scott Baker, University of North Carolina School of Law, "Incomplete Contracts in a Complete Contracts World" (with K. Krawiec) Loyola, Los Angeles: Roger C. Park, Distinguished Professor of Law, UC Hastings College of the Law, "The Utility of Cross-Examination" Notre Dame Law: Professor Douglas Kysar, Cornell Law School Ohio State Law: Elizabeth Garrett, The Promise and Perils of Hybrid Democracy* UCLA Law: Richard C. Schragger, Associate Professor of Law, University of Virginia School of Law, "Can Strong Mayors Empower Weak Cities? Considering the Power of Local Executives in a Federal System" University of Texas Law: David Barron, Harvard University, "International Local Government Law" University of Maryland, Conference:
University of Arizona Law: Economic Torts Conference
Legal Theory Lexicon: Concepts and Conceptions
This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory. Essentially Contested Concepts So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues. A quick aside. Sometimes, when there is this sort of disagreement, we want to say, "Ah, you and I are referring to different concepts." If by "cause," you mean "legal cause," whereas I use "cause" as a synonym for "cause in fact," then we are using the same word to refer to two different concepts. Back to "good." But in the case of "good," we seem to be using the same concept. I think that the good really is human flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept. Gallie thought that some concepts were essentially contested. That is, Gallie believed that some concepts were such that we would never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application. Two Uses of the Concept/Conception Distinction
Dworkin on Concepts and Conceptions in Legal Reasoning Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts. References Saturday, February 25, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Taking Rights Seriously by Ronald Dworkin. This is a modern classic, containing early and important essays, including Hard Cases--an absolute must read for every law student and legal academic. Here's a blurb:
Download of the Week The Download of the Week is Disenchantment and Desire: What is to Be Done? by Sandy Levinson (University of Texas). Here is a taste of this Chapter from Levinson's forthcoming book:
Friday, February 24, 2006
Friday Calendar
Villanova Law: Wendy Scott, Tulane University School of Law University of Texas Law: John Langbein, Yale University, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials under ERISA University of Georgia International Law Colloquium: Karen Knop (University of Toronto), "Enemies and Outlaws: War and the Public/Private Citizen" University of Georgia Law: Anthony Alfieri (Miami), The Fall of Legal Ethics and the Rise of Risk Management UCLA Media, Entertainment, and Culture Workshop:
Ohio State Legal History: David Gold, A History of the Ohio General Assembly Notre Dame Law: Professor Lisa Heinzerling, Georgetown University Law Center American University Program on Intellectual Property and the Public Interest, Orphan Works (link for webcast) Georgetown Law & Economics: Greg Sidak, Georgetown University Law Center, Should Internet Protocol-Enabled Video Service Provided over a Telephone Network Be Regulated as Cable Service?" Columbia Journal of Gender and Law Symposium: Sexuality and the Law:
Feminist ABC’s of Sex Education by Linda McClain, Hofstra University School of Law Moderator: Professor Ariela Dubler
Transgendered Plaintiffs and Title VII by Jennifer Levi, Western New England College, School of Law Moderator: Professor Suzanne Goldberg
Rethinking Prison Sex: Self-Expression and Safety by Brenda Smith, American University, Washington College of Law Moderator: Professor Philip Genty 2:15pm-3:15pm: Sexuality and Marriage
A Historical Guide to the Future of Marriage for Same-Sex Couples by Suzanne Goldberg, Rutgers School of Law - Newark Moderator: Professor Carol Sanger
The New Politics of Adultery by Brenda Cossman, University of Toronto, Faculty of Law The Expressiveness and (Potential) Gender-Neutrality of Sexuality following Lawrence v. Texas by James Garland, Hofstra University School of Law Moderator: Professor Elizabeth Emens Thursday, February 23, 2006
Welcome to the Blogosphere . . . to Empirical Legal Studies, with editors Jason Czarnezki, Michael Heise, Theodore Eisenberg, and William Ford and a great lineup of guest bloggers to come. Thursday Calendar
Update: University of Arizona College of Law: Ahmed White, University of Colorado, "Criminal Syndicalism Laws, the Industrial Workers of the World, and the Criminalization of Economic Radicalism, 1917-1927." Yale Law, Economics & Organizations: Professor Charles Calomiris, Columbia, International Business, Relationship Banking and the Pricing of Financial Services Vanderbilt Law: David Hyman, University of Illinois College of Law, "Do Defendants Pay What Juries Award?: Post-Verdict Haircuts in Texas Medical Malpractice Caes, 1988-2003" UCLA Legal Theory Workshop: Daniel Markovits (Yale). University of Texas Alexander Watkins Terrell Centennial Lectureship: John Langbein, Yale University, Understanding the Death of the Private Pension Plan in the United States University of Texas Colloquium on Constitutional and Legal Theory: Rick Pildes (NYU) "Separation of Parties, not Powers" University of Michigan Law & Economics: Michael Abramowicz, George Washington, Patent Auctions University College, London, Faculty of Laws: Dr Oliver Gerstenberg (University of Leeds), ‘The European Convention of Human Rights and Domestic Constitutional Discourse: A Clash of Absolutes’ Oxford Public International Law Discussion Group: Charles Proctor, The Recent US-China Currency Dispute in International Law: Trade and Monetary Relations Oxford Financial Law Discussion Group: Frederique Dahan and John Simpson, Secured Credit Legal Issues in Transition Economies Oxford Law Faculty: Sarah Worthington, Why distinguish between property and contract? Ohio State Law: Arthur Greenbaum, The Role of Judges in Reporting Lawyer Misconduct NYU Colloquium on Tax Policy and Public Finance: Alan Auerbach, Berkeley Economics Department, "Who Bears the Corporate Tax? A Review of What We Know." King's College, London: Rebecca Bennett (Manchester), Should we eradicate disability: a reply to harris. UC Berkeley, Kadish Center: Rae Langton, Professor of Philosophy, MIT, SPEAKER'S FREEDOM AND MAKER'S KNOWLEDGE Georgetown Law & Philosophy: Jonathan Marks (Greenwall Fellow, Georgetown and Johns Hopkins) Fordham Law: Eric A. Posner, Kirkland & Ellis Professor of Law, University of Chicago Law School, "Emergencies and Democratic Failure" Florida State Law: Tracy Higgins, Fordham University Regulatory Feminism Brooklyn Law: David Skeel, University of Pennsylvania Law School, Who Makes the Rules for Hostile Takeovers, and Why? & The Peculiar Divergence of US and UK Takeover Regulation Boston University Law: David Seipp, "Big Legal History and the Hundred-Year Test" Claus on the Conception of a Constitution Laurence Claus (University of San Diego School of Law) has posted Implication and the Concept of a Constitution (Australian Law Journal, Vol. 69, p. 887, 1995) on SSRN. Here is the abstract:
Winn on Islamic Law and Electronic Commerce Jane K. Winn (University of Washington - School of Law) has posted Islamic Law, Globalization and Emerging Electronic Commerce Technologies on SSRN. Here is the abstract:
Morag-Levine on Foreign Precedents Noga Morag-Levine (Michigan State University - College of Law) has posted Judges, Legislators, and Europe's Law: Common-law Constitutionalism and Foreign Precedents (Forthcoming, Maryland Law Review) on SSRN. Here is the abstract:
Dau-Schmidt and Brun on Comparative Law & Economics Kenneth Glenn Dau-Schmidt and Carmen L. Brun (Indiana University School of Law-Bloomington and Independent) have posted Lost in Translation: The Economic Analysis of Law in the United States and Europe (Columbia Journal of Transnational Law, Forthcoming) on SSRN. Here is the abstract:
Wednesday, February 22, 2006
Suja on the Constitutionality of Summary Judgment Suja Thomas (University of Cincinnati Law) has posted Why Summary Judgment is Unconstitutional on SSRN. Here is the abstract:
Wednesday Calendar
University College, London, Faculty of Laws: Dr Phoebe Okowa, QMUL, ‘The use of force in the Congo’ Villanova Law: Christopher Borgen, St. John's University School of Law USC-Caltech Participatory Democracy Workshop: Archon Fung (The John F. Kennedy School of Government, Harvard University), Practical Reasoning About Institutions: Governance Innovations in the Development of Democratic Theories Oxford Public Law Discussion Group: Paul Craig, Human Rights, the EU, the ECHR and the Bosphorus Case Oxford Criminology Seminar Series: Yvonne Jewkes, A prison Tale: The Role of Empathy and Emotion in the Formulation of Knowledge NYU Legal History: James Whitman, Professor, Yale Law School, "The Origins of Reasonable Doubt: Religious Roots of the Criminal Trial" Tuesday, February 21, 2006
Tuesday Calendar
University of Texas Law: Sanford Levinson, University of Texas Law, Disenchantment & Desire: What is to be Done University of Alabama Law: Hans Baade, University of Texas University College, London, Faculty of Laws: The Honourable Justice Michael Kirby AC CMG and Professor Ronald Dworkin QC, Al-Kateb v Godwin (Decision of the High Court of Australia, 6 August 2004 Northwestern Constitutional Theory: Stephen Siegel, Distinguished Research Professor of Law, DePaul University, "The Origin of the Compelling State Interest Test and Strict Scrutiny" NYU Law: Mattias Kumm. Marquette Law: Coleen Barger, University of Arkansas at Little Rock, In-Classroom Assessment of Students London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Worrall (LSE), Evidence and ethics in medical trials University of London School for Advanced Science, Institute of Philosophy Conference and Seminar Series: Larry Temkin (Rutgers), Thinking About the Needy. Lewis & Clark Law: Erik Luna, University of Utah, Deadly Judgment: Discretion, Discrimination, and Error in American Capital Punishment Chicago IP Colloquium: Professor Joseph Liu, Boston College Law School, Copyright and Consumer-Enabling Technologies Hofstra Law: Anita Allen, University of Pennsylvania Law School, “Disrobed: The Constitution of Modesty” Program Announcement: Metaphysics, Ethics, and Politics
Monday, February 20, 2006
Monday Calendar
University of Texas Law: Ronen Avraham (Northwestern), The Impact of Tort Reforms on Medical Malpractice awards, 1991-1998 (with Albert Yoon) Aristotelian Society (London): Jennifer Saulm Pornography, Speech Acts and Context American University: Program on Intellectual Property and the Public Interest Columbia Law & Economics: Michael Abramowicz, The George Washington University Law School, "Patent Auctions" Call for Papers: Reclaiming the First Amendment
Thank you to the University of Virginia . . . and especially David Tabachnick and Kevin Kordana for a wonderful conference on political philosophy and private law. Travel to and from Charlottesville was especially difficult and time consuming, and as a result, I am behind on some blog related tasks. Regular posts should resume this evening. Conference Announcement: Survival & Sustainability in Nicosia
Sunday, February 19, 2006
Legal Theory Calendar
University of Texas Law: Ronen Avraham (Northwestern), The Impact of Tort Reforms on Medical Malpractice awards, 1991-1998 (with Albert Yoon) Aristotelian Society (London): Jennifer Saulm Pornography, Speech Acts and Context American University: Program on Intellectual Property and the Public Interest Columbia Law & Economics: Michael Abramowicz, The George Washington University Law School, "Patent Auctions"
University of Texas Law: Sanford Levinson, University of Texas Law, Disenchantment & Desire: What is to be Done University of Alabama Law: Hans Baade, University of Texas University College, London, Faculty of Laws: The Honourable Justice Michael Kirby AC CMG and Professor Ronald Dworkin QC, Al-Kateb v Godwin (Decision of the High Court of Australia, 6 August 2004 Northwestern Constitutional Theory: Stephen Siegel, Distinguished Research Professor of Law, DePaul University, "The Origin of the Compelling State Interest Test and Strict Scrutiny" NYU Law: Mattias Kumm. Marquette Law: Coleen Barger, University of Arkansas at Little Rock, In-Classroom Assessment of Students London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Worrall (LSE), Evidence and ethics in medical trials University of London School for Advanced Science, Institute of Philosophy Conference and Seminar Series: Larry Temkin (Rutgers), Thinking About the Needy. Lewis & Clark Law: Erik Luna, University of Utah, Deadly Judgment: Discretion, Discrimination, and Error in American Capital Punishment Chicago IP Colloquium: Professor Joseph Liu, Boston College Law School, Copyright and Consumer-Enabling Technologies Hofstra Law: Anita Allen, University of Pennsylvania Law School, “Disrobed: The Constitution of Modesty”
University College, London, Faculty of Laws: Dr Phoebe Okowa, QMUL, ‘The use of force in the Congo’ Villanova Law: Christopher Borgen, St. John's University School of Law USC-Caltech Participatory Democracy Workshop: Archon Fung (The John F. Kennedy School of Government, Harvard University), Practical Reasoning About Institutions: Governance Innovations in the Development of Democratic Theories Oxford Public Law Discussion Group: Paul Craig, Human Rights, the EU, the ECHR and the Bosphorus Case Oxford Criminology Seminar Series: Yvonne Jewkes, A prison Tale: The Role of Empathy and Emotion in the Formulation of Knowledge NYU Legal History: James Whitman, Professor, Yale Law School, "The Origins of Reasonable Doubt: Religious Roots of the Criminal Trial"
Yale Law, Economics & Organizations: Professor Charles Calomiris, Columbia, International Business, Relationship Banking and the Pricing of Financial Services Vanderbilt Law: David Hyman, University of Illinois College of Law, "Do Defendants Pay What Juries Award?: Post-Verdict Haircuts in Texas Medical Malpractice Caes, 1988-2003" UCLA Legal Theory Workshop: Daniel Markovits (Yale). University of Texas Alexander Watkins Terrell Centennial Lectureship: John Langbein, Yale University, Understanding the Death of the Private Pension Plan in the United States University of Texas Colloquium on Constitutional and Legal Theory: Rick Pildes (NYU) "Separation of Parties, not Powers" University of Michigan Law & Economics: Michael Abramowicz, George Washington, Patent Auctions University College, London, Faculty of Laws: Dr Oliver Gerstenberg (University of Leeds), ‘The European Convention of Human Rights and Domestic Constitutional Discourse: A Clash of Absolutes’ Oxford Public International Law Discussion Group: Charles Proctor, The Recent US-China Currency Dispute in International Law: Trade and Monetary Relations Oxford Financial Law Discussion Group: Frederique Dahan and John Simpson, Secured Credit Legal Issues in Transition Economies Oxford Law Faculty: Sarah Worthington, Why distinguish between property and contract? Ohio State Law: Arthur Greenbaum, The Role of Judges in Reporting Lawyer Misconduct NYU Colloquium on Tax Policy and Public Finance: Alan Auerbach, Berkeley Economics Department, "Who Bears the Corporate Tax? A Review of What We Know." King's College, London: Rebecca Bennett (Manchester), Should we eradicate disability: a reply to harris. UC Berkeley, Kadish Center: Rae Langton, Professor of Philosophy, MIT, SPEAKER'S FREEDOM AND MAKER'S KNOWLEDGE Georgetown Law & Philosophy: Jonathan Marks (Greenwall Fellow, Georgetown and Johns Hopkins) Fordham Law: Eric A. Posner, Kirkland & Ellis Professor of Law, University of Chicago Law School, "Emergencies and Democratic Failure" Florida State Law: Tracy Higgins, Fordham University Regulatory Feminism Brooklyn Law: David Skeel, University of Pennsylvania Law School, Who Makes the Rules for Hostile Takeovers, and Why? & The Peculiar Divergence of US and UK Takeover Regulation Boston University Law: David Seipp, "Big Legal History and the Hundred-Year Test"
University of Texas Law: John Langbein, Yale University, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials under ERISA University of Georgia International Law Colloquium: Karen Knop (University of Toronto), "Enemies and Outlaws: War and the Public/Private Citizen" University of Georgia Law: Anthony Alfieri (Miami), The Fall of Legal Ethics and the Rise of Risk Management UCLA Media, Entertainment, and Culture Workshop:
Ohio State Legal History: David Gold, A History of the Ohio General Assembly Notre Dame Law: Professor Lisa Heinzerling, Georgetown University Law Center American University Program on Intellectual Property and the Public Interest, Orphan Works (link for webcast) Georgetown Law & Economics: Greg Sidak, Georgetown University Law Center, Should Internet Protocol-Enabled Video Service Provided over a Telephone Network Be Regulated as Cable Service?" Columbia Journal of Gender and Law Symposium: Sexuality and the Law:
Feminist ABC’s of Sex Education by Linda McClain, Hofstra University School of Law Moderator: Professor Ariela Dubler
Transgendered Plaintiffs and Title VII by Jennifer Levi, Western New England College, School of Law Moderator: Professor Suzanne Goldberg
Rethinking Prison Sex: Self-Expression and Safety by Brenda Smith, American University, Washington College of Law Moderator: Professor Philip Genty 2:15pm-3:15pm: Sexuality and Marriage
A Historical Guide to the Future of Marriage for Same-Sex Couples by Suzanne Goldberg, Rutgers School of Law - Newark Moderator: Professor Carol Sanger
The New Politics of Adultery by Brenda Cossman, University of Toronto, Faculty of Law The Expressiveness and (Potential) Gender-Neutrality of Sexuality following Lawrence v. Texas by James Garland, Hofstra University School of Law Moderator: Professor Elizabeth Emens Legal Theory Lexicon: Personhood
Persons and Humans The terms "human" and "person" have related meanings, but as used by most legal theorists, these terms are distinct. Here's one definition of "human":
Consider, for example, the aliens Chewbacca or Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe. Let us stipulate then, that term "human" is a biological term, which refers to all the members of the species homo sapiens and that the term "person" is a normative term, which refers to a moral and/or legal status that creatures or other bearers of human-like capacities can share with normal adult humans. The categories of human and person are involved in some of the most contentious debates in moral, political, and legal theory. Prime among these is the abortion debate. One move that can be made in the abortion debate is simply to deny the distinction between human and person. So it might be the case that the relevant moral and legal category is "human person" and that all members of the species homo sapiens members of this category. Or it might be argued that "human" and "person" are morally and legally distinction categories. If so, it is possible that "fetuses" are unborn humans, but that they are not yet "persons." Legal, Moral, and Natural Persons So far, I have been treating the category of personhood or persons as a single category, but this need not be the case. We can distinguish between three kinds of persons--natural, moral, and legal. It is possible that the not all legal persons are natural persons and vice versa; the category of moral persons is clearly distinct from that of legal persons, but might be considered identical with the category of natural persons. Examples will help. Corporations and governmental units are legal persons--they have legal rights and responsibilities and can sue and be sued, but we do not say that corporations are natural or moral persons. A corporation is not a natural person, because it is nonnatural in the relevant sense. Corporations are artificial or nonnatural because they are the creations of the law. Likewise, all humans are usually considered "natural persons," but not all humans have the full bundle of rights and responsibilities associated with legal persons. For example, infants and incompetents may be unable to sue in their own name and may not bear full legal responsibility for their acts. Legal Personhood The classical discussion of the idea of legal personhood is found in John Chipman Gray's The Nature and Sources of the Law. He began his famous discussion, "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." The question whether an entity should be considered a legal person is reducible to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties. The particular bundle of rights and duties that accompanies legal personhood varies with the nature of the entity. Both corporations and natural persons are legal persons, but they have different sets of legal rights and duties. Nonetheless, legal personhood is usually accompanied by the right to own property and the capacity to sue and be sued. Gray reminds us that inanimate things have possessed legal rights at various times. Temples in Rome and church buildings in the middle ages were regarded as the subject of legal rights. Ancient Greek law and common law have even made objects the subject of legal duties. In admiralty, a ship itself becomes the subject of a proceeding in rem and can be found "guilty." Christopher Stone recently recounted a twentieth-century Indian case in which counsel was appointed by an appellate court to represent a family idol in a dispute over who should have custody of it. The most familiar examples of legal persons that are not natural persons are business corporations and government entities. Gray's discussion was critical of the notion that an inanimate thing might be considered a legal person. After all, what is the point of making a thing-- which can neither understand the law nor act on it--the subject of a legal duty? Moreover, he argued that even corporations are reducible to relations between the persons who own stock in them, manage them, and so forth. Thus, Gray insisted that calling a legal person a "person" involved a fiction unless the entity possessed "intelligence" and "will." Can we say that corporations possess "intelligence" and "will"? The answer to that question is controversial among legal theorists. The orthodox position is that the corporation itself is a legal fiction; the humans who make up the corporation may have intelligence and will, but the corporation itself does not. But some might argue that the properties of the corporation are not reducible to the properties of the individuals who make up the corporation. Corporations may have "a mind of their own," at least according to some theorists. Moral Personhood "Legal personhood" is controversial, but "moral personhood" is one of the most contested ideas in contemporary legal, moral, and political theory. This large debate is not easy to summarize, but one of the crucial issues concerns the criteria for moral personhood. What attributes would make some life form (or even a robot) a moral person? Here are some of the possibilities: Conclusion "Personhood" is a fundamental notion for legal theorists. "Legal personhood" plays an important role in legal doctrine, and "moral personhood" plays a fundamental role in moral and political theory. The purpose of this post has been to give you a very rough sense of some of the issues that surround these concepts. More reading can be found in the bibliography. Bibliography Saturday, February 18, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends An Introduction to Political Philosophy by Jonathan Wolff. Here's a blurb:
Download of the Week The Download of the Week is Privatization: The Road To Democracy? by Carol M. Rose. Here is the abstract:
Friday, February 17, 2006
Greetings from Charlottesville I'm attending the conference on Political Philosophy and Private Law at the University of Virignia, today & tomorrow. Because of travel woes, I was unable to blog this morning, but postings should resume their regular flow tomorrow. The conference has been absolutely terrific so far, with a wonderful and deeply interesting paper by Jody Kraus, not to mention Arthur Ripstein, whose writings about the connection between private law, Kant, and Rawls are surely among the very finest. I hope to post some comments about the conference this evening! For a detailed conference schedule, scroll up for Friday. Saturday's schedule will appear tomorrow morning with the Saturday Calendar. Friday Calendar
Update: University of Georgia, International Law Colloquium: Mark Drumbl (Washington & Lee): "Atrocity and Punishment" Georgetown Law & Economics: Alan Schwartz, Yale Law School Boston College Law: Marjorie Kornhauser, W.R. Irby Professor of Law, Tulane University School and Scholar-in-Residence, Boston College Law School. Royal Institute of Philosophy, London: Ian Hacking, The Decline and Fall of Natural Kinds University of Georgia Law: Julie Seamon (Emory): The Expert Witness as Stealth Fact-Finder: Hidden Hearsay, Confrontation, and Jury Determination of Facts University of Virginia, Conference on Political Philosophy and Private Law:
Thursday, February 16, 2006
Thursday Calendar
Oxford Jurisprudence Discussion Group: Amit Pundik, Statistical Evidence: An Investigation of Its Nature and Its Usage in the Criminal Context Stanford Law & Economics: John J. Donohue III (Yale Law School), "Uses and Abuses of Empirical Evidence in the Death Penalty Debate" University of Michigan Law & Economics: Miriam Bitton, Irell & Manella LLP, A New Outlook on the Economic Dimension of the Database Protection Debate Mississippi College School of Law, Federalist Society: Debate on "Obesity in America: The State's Right to Pass Laws Requiring the Restaurant Industry to Provide Nutritional Information to Consumers" between Todd Zywicki & Michael McCann:
Michael A. McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling, 2004 Wisconsin Law Review 1161 (2004) NYU Law, Colloquium on Tax Law & Public Finance: Lee Anne Fennell, Illinois, “Taxation Over Time.” Fordham Law: Dorothy E. Roberts, Northwestern University School of Law, The Impact of High Rates of Child Welfare Agency Involvement in African American Neighborhoods Georgetown Intellectual Property: Olufunmilayo Arewa, Copyright, Borrowing, and Unfair Use Yale Legal Theory Workshop: Stephen Greenblatt, Harvard (English). Boston University Law: Bob and Ann Seidman. Florida State University Law: Elizabeth Trujillo, Detroit-Mercy. UC Berkeley, Kadish Center: Tommie Shelby, John L. Loeb Associate Professor of Social Sciences and of African and African American Studies, Harvard University, JUSTICE, DEVIANCE, AND THE DARK GHETTO William Mitchell Law, National Security Forum: Judge Gerald Rosen, U.S. District Court. Marquette Law: Mark Umbreit, Minnesota, RJ Movement: Int’l Developments Ohio State Law: Adrienne Dale Davis, University of North Carolina, The Sexual Economy of American Slavery Ibrahim on Animal Welfare Darian Ibrahim (University of Arizona) has posted The Anticruelty Statute: A Study in Animal Welfare (Journal of Animal Law & Ethics, Vol. 1, 2006) on SSRN. Here is the abstract:
McCann & Rosen on Age Restrictions in Sports Michael McCann & Joseph Rosen have posted Legality of Age Restrictions in the NBA and the NFL on SSRN. Here is the abstract:
Wednesday, February 15, 2006
Thursday Calendar
UCLA Legal History: Claire Priest, Northwestern University School of Law, "Creating An American Property Law: Alienability and Its Limits in American History" NYU Legal History: Reva Siegel, Nicholas deB Katzenbach Professor of Law, Yale Law School, “Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the De Facto ERA” University of Texas Law: Stanley Chodorow, Department of History, University of California--San Diego, The Distribution of Law Books in European Libraries in the 12th Century Cardozo Law: David Nimmer, Improving and Creating Procedures for Fair Use. Additional presentation by Marjorie Heins. Commentaries from Hugh Hansen, Margaret Jane Radin Villanova Law: Brad Wendel, Cornell Law School William Mitchell Law, Public Square Lecture Series: Hauwa Ibrahim - Quest for Justice in Nigeria. Alces on the Impossibility of Contract Peter A. Alces (College of William and Mary - Marshall-Wythe School of Law) has posted The Moral Impossibility of Contract on SSRN. Here is the abstract:
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