Legal Theory Blog |
|
 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 06/01/2008 - 07/01/2008 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? (Eric Muller) --Law & Society Weblog (Group Blog) --The Leiter Reports (Brian Leiter) --Lessig Blog (Lawrence Lessig) --Marstonalia (Brett Marston) --Paper Chase @ Jurist (Bernard Hibbitts) --Political Arguments (Group Blog) --ProfessorBainbridge.com (Stephen Bainbridge) --Pea Soup (Group Blog) --Punishment Theory (Group Blog) --The Right Coast (Group Blog) --SCOTUS Blog (Group Blog) --Sentencing Law and Policy (Douglas Berman --Statutory Construction Zone (Gary O'Connor) --TaxProf Blog (Paul Caron) --Volokh Conspiracy (Group Blog) Websites of Interest +Arts and Letters Daily +Conference Alerts +Daily Whirl +fa.philos-l +Economic Theory News +Encyclopedia of Law and Economics +Jurisprudence and Social Policy Program (U.C. 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. Oddi) --Infothought (Seth Finkelstein) --IPKat (Jeremy Phillips and Ilanah Simon) --Law and Economics Blog (Greg Goelzhauser) --Law Dork (Chris Geidner) --Law Meme (Group Blog) --Lee Blog Edward Lee --Legal Ramblings (Steven Wu) --Lenz Blog (Karl-Friedrich Lenz) --Letters of Marque (Heidi Bond) --The Light of Reason (Arthur Silber) --Matthew Yglesias --philosophy.com (Gary Sauer-Thompson ) --Public Defender Dude --Rodger A. Payne's Blog --Southern Appeal (Group Blog) --Strange Doctrines/A> --Susan Crawford blog --A Taxing Blog (Group Blog) --That's News to Me (Group Blog) --Thoughts Arguments and Rants (Brian Weatherson) --Three Years of Hell to Become the Devil --The Trademark Blog (Martin Schwimmer) --Troppo Armadillo (Ken Parish) --Technology 360 --Tutissima Cassis (Nate Oman) --Unlearned Hand --Weatherall's Law (Kim Weatherall) --WENDY.SELTZER.ORG (Wendy Seltzer) --yin (Tung Yin) Legal Theory Programs & Websites --Arizona State Committee on Law and Philosophy --Cambridge Forum for Legal and Political Philosophy --Columbia Law School Center for Law and Philosophy --Columbia Legal Theory Workhsop --Georgetown University Law Center--Colloquium on Constitutional Law and Theory --Jurisprudence and Social Policy Program (U.C. Berkeley) --Kadish Center for Morality, Law, and Public Affairs (U.C. 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 
|
Wednesday, May 31, 2006
Gillman at Empirical Legal Studies Blog Howard Gillman, about whom I cannot say enough good things, is guest blogging at Empirical Legal Studies blog. Check him out here, here, and here. Don't miss this. Wednesday Calendar
Welcome to the blogosphere . . . . . . to The Fire of Genius (Academic commentary about patent law, i.p. law, creativity, and more) by Joseph Miller of Lewis & Clark Law School. Tuesday, May 30, 2006
Hasen on Renewal of the Voting Rights Act Check out What Congress Should Consider Before Renewing the Voting Rights Act: A Chance to Preempt Supreme Court Invalidation, and Better Protect Minority Voting Rights by Rick Hasen on Findlaw. Here's a taste:
Welcome to the Blogosphere . . . . . . to Carrollogos by Michael Carroll of Villanova University School of Law (and the Board of Creative Commons. Seminar on Benkler at Crooked Timber Check out The Wealth of Networks seminar over at Crooked Timber! Here's a snippet:
Green on Rutledge & Executive Detention Craig Green (Temple University) has posted Wiley Rutledge, Executive Detention, and Judicial Conscience at War on SSRN. Here is the abstract:
Monday, May 29, 2006
Monday Calendar>
Leiter on Toleration of Religion Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted Why Tolerate Religion? on SSRN. Here is the abstract:
Van Alstine on Executive Foreign Affairs Lawmaking Michael P. Van Alstine (University of Maryland - School of Law) has posted Executive Aggrandizement in Foreign Affairs Lawmaking (UCLA Law Review, Vol. 54, 2006) on SSRN. Here is the abstract:
Kyriacou, Bacaria & Congleton on Menu Federalism Andreas P. Kyriacou , Jordi Bacaria and Roger Congleton (University of Girona - Department of Economics , Department d'Economia Aplicada and Center for Study of Public Choice) have posted A Theory of Menu Federalism: Decentralization by Political Agreement (Constitutional Political Economy, Vol. 14, pp. 167-190, 2003) on SSRN. Here is the abstract:
Symeonides on Territoriality and Personality in Tort Conflicts Symeon C. Symeonides (Willamette University - College of Law) has posted Territoriality and Personality in Tort Conflicts (INTERCONTINENTAL COOPERATION THROUGH PRIVATE INTERNATIONAL LAW: ESSAYS IN MEMORY OF PETER NYGH, T. Einhorn, K. Siehr, eds., pp. 401-433, T.M.C. Asser Press, 2004) on SSRN. Here is the abstract:
Sunday, May 28, 2006
Legal Theory Calendar
Oxford EC Law Discussion Group: Ulf Bernitz, The Duty to Refer Cases to the ECJ under Art 234 EC
Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Professor John Bell, 'Managing the Judiciary and Judicial Independence' Florida State University Law: Benjamin J. Priester, Florida State University College of Law Legal Theory Lexicon: Metaethics
"Metaethics" may sound rather esoteric, but, in fact, metaethical argumentation is very common, both in ordinary life and in legal theory. Perhaps the most familiar example is the use of moral relativism (or similar positions) in normative argumentation. When one party in an argument asserts something like, "Homosexuality is morally wrong," the reply might be, "No, it isn't. You are mistaken," but another common (perhaps more common) reply is, "That's just a value judgment." The implication is that moral judgments are relative or subjective or just an expression of emotional reactions. Metaethics is a very big topic, and even a cursory introduction is the subject of a whole course or monograph, but some very basic ideas and terminology can be introduced in a blog post. As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. Metaethical Questions Metaethics includes a variety of topics, and one good way to get a basic grasp on the field is to simply list some of the questions that are encompassed by (legal)metaethics: Cognitivism and Noncognitivism One of the most important debates in metaethics (from the point of view of normative legal theory) is the debate between cognitivism and noncognitivism. Very roughly, cognitivism is the position that moral statements (such as "There ought to be a constitutional right to privacy.") express beliefs that can be true or false. (Beliefs are "cognitive" states, hence the name "cognitivism.") Noncognitivism denies this and asserts that moral statements express noncognitive states, such as emotions or desires. Noncognitive states (emotions, desires) cannot be true or false. I think the best way to get a handle on this debate is to take a brief look at a very simple version of noncognitivism. A noncognitivist might assert that when some says that X is morally wrong, they are simply expressing an attitude of disapproval towards X. That is, "X is wrong" means "Boo X." When someone says "X is morally good," they are expressing an attitude of moral approval towards X. The Boo-Hooray theory is a crude version of emotivism--the theory that moral statements express emotions, associated with A.J. Ayer. As I'm sure you've already guessed, contemporary noncognitivists have theories that are more sophisticated than Ayer's; examples of such contemporary noncognitivist theories include Allan Gibbard's norm expressivism and Simon Blackburn's quasi realism. Cognitivsts assert that moral propositions express beliefs that have cognitive content and hence can be true or false (or at least correct or incorrect). The cognitivist landscape is complex. Some cognitivist theories hold that our moral beliefs track natural properties in the world; others cognitivist theories hold that our moral beliefs are about nonnatural properties: G.E. Moore had a theory like this. Still other cognitivists believe that moral statements can be true or false, but deny that they are about any states of affairs (natural or nonnatural). A simple example of a naturalist cognitivist theory might be the following: a utilitarian might believe that statements about the rightness or wrongness of actions are about natural states of the world, e.g. the natural properties of pleasure and pain: when I say, action X is right, I mean, X will produce the greatest balance of pleasure over pain as compared the alternative courses of action. In Legal Theory Lexicon 014: Fact and Value, we explored G.E. Moore's "open question" argument against naturalist forms of cognitivism. It goes without saying that debates over cognitivism and noncognitivism are much richer and complex than the simplified ideas that we've just explored, but the core idea--the distinction between cognitivism and noncognitivism--is accessible and hugely important. Moral Psychology Another important set of questions in metaethics concerns the relationship between moral judgments and motivation. Suppose one makes a moral judgment that X is morally obligatory. Does it follow that one is motivated to do X? Or can one believe that X is morally required with no motivation to do X? Lot's of folks find it very plausible to think that if one affirms "X is morally obligatory," then one has got to have a motive to do X. "Internalism" is the view that there is some internal or conceptual connection between moral judgments and motivation. "Externalism" is the view that the connection between moral judgment and motivation is external or contingent. For some forms of noncognitivism, the question whether there is an internal connection between moral judgment and motivation isn't much of a question. If moral statements simply express motivations (to take the easiest case), then it follows that the sentence X is morally obligatory would turn out just to mean, "I am motivated to do X." It will get more complicated for other forms of noncognitivism, but in general and vastly oversimplified terms, if morality is about desire or emotion and if desires or emotions motivate, then moral judgments are closely connected with motivations. But for cognitivists, things are not so easy. Let's take our utilitarian naturalist cognitivist as an example. I know that if I stop working on my blog and start working for Oxfam, I can produce better consequences. If internalism were true, this would give me a motive to stop working on the blog. Assuming that Hume was right and motives are desires plus beliefs, at the very least, I ought to feel some sort of tug (or other motivating state) pulling in the direction of working for Oxfam. But I don't, in fact, feel such a tug. One way to square these facts (assuming they were true) with cognitivism is to deny that there is an internal connection between moral judgments and motivations. Thus, I might think that some external sanction or internalized norm must be added to the moral judgment in order to produce motivating force. Conclusion Normative legal theory necessarily implicates metaethics. Most normative legal theorists explicitly or implicitly assert that their positions are true (or at least correct) and that inconsistent positions are false (or incorrect). That means that most normative legal theories rest on metaethical assumptions. That doesn't mean that you need to be an expert in metaethics to be a good normative legal theorist, but it sure helps to know the very general outlines of the terrain! Bibliography Saturday, May 27, 2006
Download of the Week The Download of the Week is Behavioral Economics and Fundamental Tax Reform by Ed McCaffery. Here is the abstract:
Legal Theory Bookworm I've been thinking recently about "introductions" to normative theory--the kind of books you would recommend as a jumping off point for someone who is interested in acquiring a basic skill set in normative legal theory, but has never studied moral or political philosophy. I'm still not sure about my final list, but here are some preliminary thoughts:
Friday, May 26, 2006
Perry on Charitable Contributions & an Ideal Estate Tax Miranda Perry (University of Colorado) has posted Charitable Contributions in an Ideal Estate Tax on SSRN. Here is the abstract:
Esty on Globalizing Administrative Law Daniel C. Esty (Yale Law School) has posted Good Governance at the Supranational Scale: Globalizing Administrative Law (Yale Law Journal, Vol. 115, pp. 1490-1562, 2006) on SSRN. Here is the abstract:
Smythe on Shareholder Democracy Donald J. Smythe (Washington and Lee University) has posted Shareholder Democracy and the Economic Purpose of the Corporation (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:
Rossi on Restructuring Electric Utilities Jim Rossi (Florida State University College of Law) has posted Redeeming Judicial Review: The Hard Look Doctrine and Federal Regulatory Efforts to Restructure the Electric Utility Industry (Wisconsin Law Review, pp. 763-837, 2004) on SSRN. Here is the abstract:
Glicksman on Environmental Federalism Robert L. Glicksman (University of Kansas - School of Law) has posted From Cooperative to Inoperative Federalism: The Perverse Mutation of Environmental Law and Policy (Wake Forest Law Review, 2006) on SSRN. Here's the abstract:
Hunt & Laszlo on Bribery Jennifer Hunt and Sonia Laszlo (McGill University - Department of Economics and McGill University - Department of Economics) have posted Bribery: Who Pays, Who Refuses, What Are The Payoffs? on SSRN. Here is the abstract:
Kaplan in Lisbon
Thursday, May 25, 2006
Garrett & Tetlow on Katrina & the Constitution Brandon L. Garrett (University of Virginia - School of Law) & Tania Tetlow (Tulane University - School of Law) have posted Criminal Justice Collapse: The Constitution after Hurricane Katrina on SSRN. Here is the abstract:
Conference Announcement: Law & Technology at MIT
Conference Announcement: The Future of Democracy at William & Mary
Thursday Calendar
Wednesday, May 24, 2006
Leib & Ponet on Citizen Representation on the Jury Ethan J. Leib (University of California, Hastings College of the Law) & David L Ponet (Columbia University) have posted Citizen Representation and the American Jury on SSRN. Here is the abstract:
Most Cited Cases Check out What Is the Most Heavily-Cited Tax Case? over at TaxProf Blog, which actually discusses all of the most cited United States Supreme Court cases. Conference Announcement: Colloquium on Labor and Employment Law at Marquette
New from Law & Politics Book Review
COMMUNITY RESOURCES: INTELLECTUAL PROPERTY, INTERNATIONAL TRADE AND PROTECTION OF TRADITIONAL KNOWLEDGE, by Johanna Gibson. Burlington, VT: Ashgate Publishing Company, 2005. 396pp. Cloth. $114.95/£60.00. ISBN: 0-7546-4436-7. Reviewed by Robert G. Brookshire. REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, by Roger C. Cramton and Paul D. Carrington (eds). Durham, NC: Carolina Academic Press, 2006. 516pp. Paper. $45.00. ISBN: 1-59460-213-1. Reviewed by Chris W. Bonneau. MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS, by Anita Bernstein (ed). New York: New York University Press, 2006. 255pp. Cloth. $40 ISBN: 0814799299. Reviewed by Elizabeth Ellen Gordon. Tuesday, May 23, 2006
Bell and Parchomovsky on Public Use Abraham Bell and Gideon Parchomovsky (Bar Ilan University - Faculty of Law and University of Pennsylvania - School of Law) have posted The Uselessness of Public Use on SSRN. Here is the abstract:
Saban on Minority Rights in Deeply Divided Societies Ilan Saban (University of Haifa - Faculty of Law) has posted Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel on SSRN. Here is the abstract:
Vermont on Independent Invention Samson Vermont (George Mason University School of Law) has posted Independent Invention as a Defense to Patent Infringement (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
Forell on Provocation & Gender Equality Caroline Anne Forell (University of Oregon - School of Law) has posted Gender Equality, Social Values and Provocation Law in the United States, Canada and Australia (Journal of Gender, Social Policy and the Law, Vol. 14, 2006) on SSRN. Here is the abstract:
Monday, May 22, 2006
International Political Theory: The IPT Beacon Check out the website the "International Political Theory Beacon." Here's a description:
Nagel’s Atlas, Philosophy and Public Affairs, 34.2 (2006) by A. J. Julius and Extra Rempublicam, Nulla Justicia, Philosophy & Public Affairs, 34.2 (2006) by Joshua Cohen and Charles Sabel McCaffery on Behavioral Economics & Tax Reform Ed McCaffery (University of Southern California) has posted Behavioral Economics and Fundamental Tax Reform on SSRN. Here is the abstract:
Sunday, May 21, 2006
Legal Theory Calendar
Legal Theory Lexicon: Functional Explanation in Legal Theory
Why do legal rules have the form and content that they do, in fact, have? One answer to this question is based on the idea that the function of a rule can be part of a causal explanation of the content of the rule. Why does corporations law limit the liability of stockholders? One kind of answer to that question might begin: "That rule is the way it is, because it serves the interest of the capitalist class." Or, "The rule is that way, because that is the efficient rule, and common law adjudication selects for efficient rules." In other words, the content of the rule is explained (causally) by the function the rule serves. The Idea of a Functionalist Explanation Functionalist explanations are familiar to almost everyone, because of the important role they play in evolutionary biology. When we try to explain why an organism has a particular trait--why male peacock's have their feathers or why the elephants have trunks--we appeal to the function that the trait serves. Male peacock's have colorful feathers because that trait serves to attract female peacock's and hence the genes produce this trait are favored by evolution. Elephants have trunks, because they enable elephants to eat and drink more efficiently. In biology, functionalist explanations are scientifically valid, because we understand the causal mechanism whereby function plays a causal role. That causal mechanism is evolution, of course, and we have a very good explanation for how evolution works in the form of genetics. DNA (plus a lot of other stuff) provides the precise causal mechanism by which evolution operates. Functionalist Explanation in the Social Sciences Functionalist explanations are not limited to biology. Sociologists frequently explain social behavior on the basis of the social function that the behavior serves. Why does this group do a "rain dance"? Because the rain dance ritual serves to create social cohesion in times of stress. There is, however, a significance difference between functionalist explanation in biology and functionalist explanation in the social sciences. In biology, functionalist explanations are underwritten by a well-confirmed theory of the causal mechanism by which evolution functions. In social science, the causal mechanisms are murkier. What causal law explains how the social cohesion function of rain dances leads to their perpetuation across generations? Without an answer to questions like this, we have at least prima facie reason to be suspicious of functionalist explanations in the social sciences. This suspicion is enhanced because functionalist explanations can easily become nonfalsifiabile. In the case of biology, because evolutionary theory is well confirmed, we more or less know in advance that some functionalist explanation has got to be right--the question is which functionalist explanation is correct. In the case of social science, there is no well-confirmed general theory of social evolution, so it isn't necessarily the case that there is always a true functionalist explanation for any given social behavior. Functionalist Explanations in Legal Theory And that brings us to law. Functionalist explanations are frequently invoked in positive legal theory. That is, when we ask the question, "Why does the law have such and such content?", the answer frequently is, "Because such and such a rule functions in thus and so way." Here are some examples:
Legal Evolution Functionalist explanations are also implicit in any claim that the law evolves (where "evolves" is meant in a technical sense and is not a mere synonym for "changes"). The idea that legal systems evolve is very common, but there is not general theory of legal evolution that has the well-confirmed status of the corresponding theory of biological evolution. Be on the watch for claims about legal evolution; such claims frequently are not well thought out and almost always lack empirical support. Efficiency Another example of functionalist explanation in legal theory is the claim that the common law rules are efficient. "Why did the common law adopt the Learned Hand formula as the standard for negligence?" "Because that is the efficient standard." Sometimes these claims are accompanied by an account of the mechanism by which a common law system moves towards efficient legal rules. For example, it might be argued that inefficient legal rules will be subject to continuous litigation pressure; whereas efficient legal rules, once adopted, tend to facilitate settlement of disputes. For a very lucid explanation of the role of microfoundations in social science, I highly recommend Jon Elster's brilliant book Making Sense of Marx. And for an equally brilliant defense of functionalist explanations, consult G.A. Cohen's Karl Marx's Theory of History. (The deb |