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.

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Friday, June 30, 2006
Welcome to the Blogosphere . . . . . . to the Georgetown University Faculty Blog. Check out the live blogging by Rebecca Tushnet of a panel on Hamdan! And this post by Mark Tushnet on Hamdan.

Balkin on Hamdan Check out Jack Balkin on Hamdan: Hamdan and the NSA dispute. Here's a taste:
    While Stevens' Hamdan opinion appears on its surface to be merely concerned with statutory interpretation, it effectively undermines the Administration's strongest claims about Presidential power. Justice Kennedy's concurrence makes the constitutional points more explicitly, and that is why, I predict, his concurrence will become as important as the majority opinion itself.

Weisbach on Tax Expenditures David A. Weisbach (University of Chicago Law School) has posted Tax Expenditures, Principal Agent Problems, and Redundancy on SSRN. Here is the abstract:
    This paper considers tax expenditures from two related perspectives. First, it analyzes how the incentives on Congress to use a tax expenditure change when principal agent problems are considered. For example, it considers whether tax expenditures can reduce moral hazard or adverse selection problems created by delegations to expert agencies. Second, it considers the condition under which tax expenditures should be expected to be redundant with direct expenditures, as many are. The two, principal agent problems and redundancy, are related because redundancy is often seen as a solution to the principal agent problem. The paper concludes that both principal agent concerns and redundancy might lead to an increase in the use of tax expenditures, although the circumstances in which we should expect this are relatively narrow. The paper then examines the example of the low income housing tax credit, concluding that the credit should be replaced with a direct expenditure in the form of increased tenant vouchers.

Yale & Polsky on Reformng Deferred Compensation Taxation Ethan Yale and Gregg D. Polsky (Georgetown University Law Center and University of Minnesota Law School) have posted Reforming the Taxation of Deferred Compensation (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
    Executive pay is currently a topic of significant interest for policymakers, academics, and the popular press. Just weeks ago, in reaction to widespread press reports and academic criticism of extravagant executive perquisites, the SEC proposed new regulations designed to change fundamentally the manner in which executive compensation is reported to share-holders. Despite all of this attention, one significant aspect of executive deferred compensation has gone virtually unnoticed - the federal tax rules governing this form of compensation are fundamentally flawed and must be extensively over-hauled. These rules are flawed because they often create a significant incentive for companies and their executives to structure deferred, rather than current, compensation, thereby producing highly inefficient and inequitable results. This Article addresses potential legislative reforms that would remedy this problem by neutralizing the tax treatment of current and deferred compensation. While this neutrality goal, which was part of the recent proposals made by President Bush's Advisory Panel on Tax Reform, is easy to describe in general and conclusory terms, the devil is in the details. There has been little serious academic analysis of how to implement a set of tax rules that would create neutrality while avoiding undue complexity. This Article attempts to fill that void.

Maclin on DNA & the Fourth Amendment Tracey Maclin (Boston University - School of Law) has posted Is Obtaining an Arrestee's DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do? (Journal of Law, Medicine & Ethics, Vol. 33, No. 1, Summer 2006) on SSRN. Here is the abstract:
    An increasing number of states are enacting laws authorizing the forcible taking and analysis of DNA from certain categories of arrestees. For example, California's Proposition 69 requires state law enforcement officials to obtain DNA samples from certain arrestees. By 2009, Proposition 69 will require a DNA sample from every adult arrested for or charged with a felony. This article addresses the constitutionality, under the Fourth Amendment, of taking DNA samples from persons subject to arrest. In particular, the article focuses on the statutes of Virginia and Louisiana, which have authorized DNA sampling of persons arrested for violent crimes and sex offenses, and examines whether these laws are consistent with the Fourth Amendment's "special needs" doctrine as outlined by several Supreme Court rulings. The thesis of the article is that forcibly obtaining DNA from an arrestee violates the Fourth Amendment. There is little doubt these intrusions are searches under the Fourth Amendment. Moreover, I argue that this type of search cannot be upheld under the Supreme Court's special needs cases because obtaining a DNA sample is directly designed to promote the state's interest in solving crimes.

Austin on Civil Unions Graeme W. Austin (University of Arizona - James E. Rogers College of Law) has posted Essay: Family Law and Civil Union Partnerships - Status, Contract and Access to Symbols (Victoria University Wellington Law Review, Vol. 37, 2006) on SSRN. Here is the abstract:
    This essay locates New Zealand's civil union legislation within the dynamic between status and contract that animates modern family law. Status concerns who we are; contract concerns the transactions we can enter. Because family law is concerned with affective relationships, it cannot apprehend people only as the atomised individuals anticipated by the modernist emphasis on contractual relations. Family law acknowledges the relevance to legal issues of messy issues of personality. Among the most complex and powerful aspects of personality with which the law concerns itself is love. Love affects who we are and law affects what love can be. Law provides and constrains the symbolic repertoire that helps organise the way we think about our affective relationships. The enactment of civil union legislation was an enormously positive step. However, by continuing to deny homosexuals the ability to marry, the New Zealand state persists in denying homosexuals a key part of the symbolic repertoire that is relevant to the way people in love can conceptualise their relationships. The transactions the state permits us to enter, particularly transactions that are expressions of love, affect the construction of our identities, illustrating once again the deep links that exist between who we are and the contracts we can enter.

Thursday, June 29, 2006
Hamdan In a 5-3 decision (with Roberts not participating), the Supreme Court has ruled that the President lacked authority to establish military tribunals at Guantanmo Bay and that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda.
The opinions are here.
Lyle Denniston has a good post on Scotus Blog. The New York Times has the AP story here. Also at Scotus Blog, Marty Lederman has a post entitled Hamdan Summary -- And HUGE News. Here's a brief excerpt from Lederman's post:
    The Court appears to have held that Common Article 3 of Geneva aplies to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here. This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes). If I'm right about this, it's enormously significant.
The Washington Post's first story is here. Jurist has a post here.
Here is the syllabus:
    Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding: 1. The Government’s motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA §1005(e)(1) provides that “no court … shall have jurisdiction to hear or consider … an application for … habeas corpus filed by … an alien detained … at Guantanamo Bay.” Section 1005(h)(2) provides that §§1005(e)(2) and (3)-which give the D. C. Circuit “exclusive” jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions-“shall apply with respect to any claim whose review is … pending on” the DTA’s effective date, as was Hamdan’s case. The Government’s argument that §§1005(e)(1) and (h) repeal this Court’s jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction. A negative inference may be drawn from Congress’ failure to include §1005(e)(1) within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330. “If … Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases.” Id., at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh. The legislative history shows that Congress not only considered the respective temporal reaches of §§1005(e)(1), (2), and (3) together at every stage, but omitted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within that directive’s scope. Congress’ rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government’s interpretation. See Doe v. Chao, 540 U. S. 614, 621-623. Pp. 7-20. 2. The Government argues unpersuasively that abstention is appropriate under Councilman, which concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending courts-martial against service members, see 420 U. S., at 740. Neither of the comity considerations Councilman identified weighs in favor of abstention here. First, the assertion that military discipline and, therefore, the Armed Forces’ efficient operation, are best served if the military justice system acts without regular interference from civilian courts, see id., at 752, is inapt because Hamdan is not a service member. Second, the view that federal courts should respect the balance Congress struck when it created “an integrated system of military courts and review procedures” is inapposite, since the tribunal convened to try Hamdan is not part of that integrated system. Rather than Councilman, the most relevant precedent is Ex parte Quirin, where the Court, far from abstaining pending the conclusion of ongoing military proceedings, expedited its review because of (1) the public importance of the questions raised, (2) the Court’s duty, in both peace and war, to preserve the constitutional safeguards of civil liberty, and (3) the public interest in a decision on those questions without delay, 317 U. S, at 19. The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them. Pp. 20-25. 3. The military commission at issue is not expressly authorized by any congressional Act. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of] courts-martial shall not be construed as depriving military commissions … of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such … commissions.” 10 U. S. C. §821. Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions-with the express condition that he and those under his command comply with the law of war. See 317 U. S., at 28-29. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan’s commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court’s task is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified. Pp. 25-30. 4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49-72. (a) The commission’s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to “close.” Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and “other national security interests.” Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer’s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan’s commission permit the admission of any evidence that, in the presiding officer’s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other “protected information,” so long as the presiding officer concludes that the evidence is “probative” and that its admission without the accused’s knowledge would not result in the denial of a full and fair trial. Pp. 49-52. (b) The Government objects to this Court’s consideration of a procedural challenge at this stage on the grounds, inter alia, that Hamdan will be able to raise such a challenge following a final decision under the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to law. These contentions are unsound. First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years, he has no automatic right to federal-court review of the commission’s “final decision” under DTA §1005(e)(3). Second, there is a basis to presume that the procedures employed during Hamdan’s trial will violate the law: He will be, and indeed already has been, excluded from his own trial. Thus, review of the procedures in advance of a “final decision” is appropriate. Pp. 52-53. (c) Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan’s commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exigency that necessitates it. That understanding is reflected in Art. 36(b), which provides that the procedural rules the President promulgates for courts-martial and military commissions alike must be “uniform insofar as practicable,” 10 U. S. C. §836(b). The “practicability” determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The President here has determined, pursuant to the requirement of Art. 36(a), that it is impracticable to apply the rules and principles of law that govern “the trial of criminal cases in the United States district courts” to Hamdan’s commission. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. And even if subsection (b)’s requirements could be satisfied without an official practicability determination, that subsection’s requirements are not satisfied here. Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. There is no suggestion, e.g., of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan’s trial, any variance from the courts-martial rules. The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: The right to be present. See 10 U. S. C. A. §839(c). Because the jettisoning of so basic a right cannot lightly be excused as “practicable,” the courts-martial rules must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Art. 36(b). Pp. 53-62. (d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan’s challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62-68. (i) The appeals court relied on a statement in Johnson v. Eisentrager, 339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for observing and enforcing prisoners’ rights under the Convention. However, Eisentrager does not control here because, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520-521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63-65. (ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68. (iii) While Common Article 3 does not define its “regularly constituted court” phrase, other sources define the words to mean an “ordinary military cour[t]” that is “established and organized in accordance with the laws and procedures already in force in a country.” The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be “regularly constituted” only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69-70. (iv) Common Article 3’s requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72. (d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72. Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer, concluded in Parts V and VI-D-iv: 1. The Government has not charged Hamdan with an “offense … that by the law of war may be tried by military commission,” 10 U. S. C. §821. Of the three sorts of military commissions used historically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions, incorporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001. More importantly, the offense alleged is not triable by law-of-war military commission. Although the common law of war may render triable by military commission certain offenses not defined by statute, Quirin, 317 U. S., at 30, the precedent for doing so with respect to a particular offense must be plain and unambiguous, cf., e.g., Loving v. United States, 517 U. S. 748, 771. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions-the major treaties on the law of war. Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources, including, e.g., the International Military Tribunal at Nuremberg, which pointedly refused to recognize conspiracy to commit war crimes as such a violation. Because the conspiracy charge does not support the commission’s jurisdiction, the commission lacks authority to try Hamdan. Pp. 30-49. 2. The phrase “all the guarantees … recognized as indispensable by civilized peoples” in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary international law. The procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees. Moreover, various provisions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. Pp. 70-72. Justice Kennedy, agreeing that Hamdan’s military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19. Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which Kennedy,Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed an opinion concurring in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Parts I and II. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which Alito, J., joined as to all but Parts I, II-C-1, and III-B-2. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined as to Parts I through III. Roberts, C. J., took no part in the consideration or decision of the case.

Wednesday, June 28, 2006
Call for Papers: Multiculturalism and Moral Conflict at Durham
    Call for Papers Workshop on Multiculturalism and Moral Conflict The workshop will take place at the School of Government and International Affairs, Durham University on 21-23 March 2007. Main speakers:
      Gerald Gaus (University of Arizona) John Horton (Keele University) Peter Jones (Newcastle University) Chandran Kukathas (University of Utah) Tariq Modood (University of Bristol) Bhikhu Parekh (University of Westminster)
    We would especially welcome papers that address citizenship and identity, the politics of recognition, international law and multiculturalism, pluralism and moral conflict, history of the debate about multiculturalism, and the role of law and judicial systems in the following contexts:
      1. Multinational states or empires in which in principle there is no systematic discrimination between different nationalities or cultures, even if in practice here are clearly, or arguably, hegemonic nations or cultures. 2. Hierarchic states or empires, typically but not exclusively European colonial empires, in which a hegemonic nation, race or culture, is openly proclaimed and where there are explicit attempts to justify such hierarchies. This could include states or empires which recognise so-called domestic dependent nations. 3. States which have seen themselves as largely culturally homogenous but have been forced to confront the problems of multiculturalism as a result of immigration.
    The workshop aims to provide a unique interdisciplinary forum in which philosophers, political theorists, historians, social scientists, and others can come together to reflect on different issues of multiculturalism and moral conflict. Organisers of the workshop are Maria Dimova-Cookson ( and Peter Stirk ( Please email abstracts, no longer than 500 words to one of the organisers, as soon as you can, but not later than 30 September 2006. Email us if you have any questions. The workshop is a joint initiative of the Centre for the History of Political Thought at Durham University and the British Idealism specialist group at the PSA details of which can be found at

Call for Papers: Utilitiarism: An Ethics of Experience at the University of Rome
    Call for Papers The international conference UTILITARIANISM: AN ETHICS OF EXPERIENCE? will be held at the University of Rome "La Sapienza", Rome, June 14-16, 2007. The invited speakers are:
      Sergio Bucchi (University of Rome "La Sapienza") Sergio Cremaschi (University of Piemonte Orientale "A. Avogadro") Piergiorgio Donatelli (University of Rome "La Sapienza") Esperanza Guizan (University of Santiago de Compostela) Brad Hooker (University of Reading) Giorgio Lanaro (University of Milan) Eugenio Lecaldano (University of Rome "La Sapienza") Sebastiano Maffettone (Luiss Guido Carli, Rome) Maurizio Mori (University of Turin) Tim Mulgan (University of St. Andrews) Gianfranco Pellegrino (Luiss Guido Carli, Rome) Giuliano Pontara (University of Stockholm) Franco Restaino (University of Rome "Tor Vergata") Frederick Rosen (Bentham Project, University College of London) John Skorupski (University of St. Andrews)
    Submitted papers, in Italian and English, will be accepted. Send a proposal - max. 350 words - prepared for blind referee (put on a separate page name and academic affiliation) - within December 20th 2006 to the following e-mail address: Notification of acceptance will be given within March 31st 2007. Some expenses of accepted speakers will be reimbursed. The Conference has a general scope. Nevertheless, among possible topics to be discussed are the following:
      - utilitarianism and the virtues - the demandingness objection to consequentialism - Henry Sidgwick and his intuitionist Utilitarianism - utilitarianism and future generations - evolutionism and classical utilitarianism - hedonism and motivation - utilitarianism and global poverty - bioethics and utilitarianism - special duties and utilitarianism - utilitarianism and distributive justice - forms and types of utilitarianism (rule- and act-utilitarianism, collective and individual utilitarianism, and so on).

Conference Announcement: Social Sciences & Democracy at Ghent
    CONGRESS ANNOUNCEMENT The Centre for Logic and Philosophy of Science of Ghent University, Belgium invites you for a conference: The Social Sciences and Democracy: a philosophy of science perspective 28th - 30th of September 2006 Ghent, Belgium Keynote speakers are: Patrick Baert (University of Cambridge) James Bohman (Saint Louis University) Steve Fuller (University of Warwick) Harold Kincaid (University of Alabama) Philip Mirowski (University of Notre Dame) Mark Risjord (Emory University) Stephen Turner (University of South Florida) The program is now available on the website: A linked workshop on ‘Science and Social Movements. Communicating Facts Across Expert Communities‘ will take place in Brussels on the 27th of September, see:

Tuesday, June 27, 2006
Welcome to the Blogosphere . . . . . . to PLF on Eminent Domain, the Pacific Legal Foundation's blog on eminent domain.

Pardo on Neuroscience Evidence Michael S. Pardo (University of Alabama School of Law) has posted Neuroscience Evidence, Legal Culture, and Criminal Procedure on SSRN. Here is the abstract:
    Proposed lie-detection technology based on neuroscience poses significant challenges for the law. The law must respond to the science with an adequate understanding of such evidence, its significance, and its limitations. This paper makes three contributions toward those ends. First, it provides an account of the preliminary neuroscience research underlying this proposed evidence. Second, it discusses the nature and significance of such evidence, how such evidence would fit with legal practices and concepts, and its potential admissibility. Finally, it analyzes the constitutional protections that may limit the compelled production of such evidence.

Monday, June 26, 2006
Schkade, Sunstein, and Hastie on Deliberation and Polarization David Schkade , Cass R. Sunstein and Reid Hastie (University of Texas at Austin - Department of Management Science & Information Systems , University of Chicago - Law School and University of Chicago - Graduate School of Business) have posted What Happened on Deliberation Day? on SSRN. Here's the abstract:
    What are the effects of deliberation about political issues? This essay reports the results of a kind of Deliberation Day, involving sixty-three citizens in Colorado. Groups from Boulder, a predominantly liberal city, met and discussed global warming, affirmative action, and civil unions for same-sex couples; groups from Colorado Springs, a predominately conservative city, met to discuss the same issues. The major effect of deliberation was to make group members more extreme than they were when they started to talk. Liberals became more liberal on all three issues; conservatives became more conservative. As a result, the division between the citizens of Boulder and the citizens of Colorado Springs were significantly increased as a result of intragroup deliberation. Deliberation also increased consensus, and dampened diversity, within the groups. Implications are explored for the uses and structure of deliberation in general.

Gersen on Temporary Legislation Jacob E. Gersen (University of Chicago - Law School) has posted Temporary Legislation (University of Chicago Law Review, 2006) on SSRN. Here is the abstract:
    This paper provides a descriptive, positive, and normative analysis of temporary legislation, statutes containing a clause terminating legal authority on a specified future date. Notwithstanding the fact that a significant portion of the legislative docket consists of statutes that terminate automatically absent affirmative Congressional reauthorization in the future, the political dynamics of such statutes remain significantly under-theorized. Yet, temporary statutes have a long and storied pedigree both in the United States and elsewhere. After a historical overview, the paper outlines the major conceptual features of temporary statutes and demonstrates the implications for allocations of power and responsibility within and among the three branches of government, with a particular emphasis on the political economy of temporary legislation. Lastly, using a mixture of theoretical analysis and a case study, the paper argues for greater reliance on temporary statutes as a mechanism for responding to newly recognized risks.

Cox on Redistricting Institutions Adam B. Cox (University of Chicago - Law School) has posted Designing Redistricting Institutions on SSRN. Here is the abstract:
    Recent movements to reform redistricting in the United States have focused almost exclusively on the possibility of replacing state legislatures with nonpartisan or bipartisan commissions. The nearly exclusive focus on who draws districts overlooks at least two other ways to reform redistricting: by altering the decision rules that constrain legislatures when they redistrict; or by changing the institutional structures available to review legislatures' initial decisions. This Article sketches the broader suite of options and introduces a novel decision-rule constraint - deferred redistricting implementation. The deferred implementation rule would leave legislatures with authority to craft redistricting plans after each census, but the rule would defer the implementation of those plans for a few election cycles. Deferred implementation creates a partial temporal veil of ignorance that would curtail egregious partisan gerrymanders. In addition, it would improve the incentives of legislators in charge of drawing district lines, making them less interested in using the redistricting process to pursue their political self interest.

Conkle on Fundamentalism Daniel O. Conkle (Indiana University School of Law-Bloomington) has posted Secular Fundamentalism, Religious Fundamentalism, and the Search for Truth in Contemporary America (Journal of Law and Religion, Vol. 12, p. 337, 1995-96) on SSRN. Here is the abstract:
    In this article, I suggest that America's ongoing culture war is a product, in part, of an epistemic crisis that confounds our collective search for truth. In a previous article addressing aspects of this topic, I expressed concerns about religious fundamentalism. Here, I explore the ways in which secular thinking might likewise be described as “fundamentalist.” In particular, I discuss secular fundamentalism in textual interpretation, secular fundamentalism in the form of political liberalism, and comprehensive secular fundamentalism, which extends to private questions of truth. I then discuss the various problems - not only political, but also theological - that are raised by fundamentalist thinking, whether religious or secular in nature. In place of these various sorts of fundamentalism, I advocate a dialogic, multi-lingual search for truth, a search that would give meaningful consideration to moral arguments of all types - not only in private life, but in the public domain as well.

Estlund on Arbitration Agreements & Non-Compete Covenants Cynthia L. Estlund (New York University - School of Law) has posted Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law on SSRN. Here is the abstract:
    The employment relationship is governed largely by contract, but with a heavy overlay of “rights”: minimum terms and individual rights that are established by external law and typically non-waivable. But some terms of employment are governed neither by ordinary contract nor by ordinary rights, nor even by ordinary waivable rights. Consider the two most controversial instruments in employment law today: non-compete covenants (NCCs) and mandatory arbitration agreements (MAAs). Both take the form of written contracts that waive important employee rights (the right to compete post-employment, the right to litigate future claims); both are subject to substantive criteria of validity that are set by external law. Both bodies of law may be usefully described as recognizing “conditionally waivable” rights. This paper aims first to show structural parallels between NCCs and MAAs that place them at a distinct intermediate point along the spectrum between non-waivable rights and ordinary contract that I call “conditional waivability.” Second, it seeks to uncover a common logic underlying the law's choice of this particular hybrid of rights and contract. The linchpin of that common logic lies in the the threat that unregulated waiver of one right (the right to compete or to litigate future claims) poses to an adjacent employee right that the law deems non-waivable. Third, the paper deploys that underlying logic to offer a critical assessment of the law governing NCCs and MAAs. Finally, the paper tentatively explores the broader potential usefulness of conditional waivability as a way of regulating some terms of employment. The intriguing potential of conditional waivability lies in its injection of some of the virtues of contract – especially flexibility and variability in the face of widely divergent and changing circumstances – into the pursuit of public goals and the realization of rights in the workplace.

Corn on Kosovo & the War Powers Resolution Geoffrey S. Corn (South Texas College of Law) has posted Kosovo, and the Final Destruction of the War Powers Resolution (William & Mary Law Review, Vol. 42, p. 1149, 2001) on SSRN. Here is the abstract:
    The United States air campaign to compel Serbia to halt military ethnic cleansing in Kosovo was the first combat operation conducted for more than sixty days without express congressional authorization. The decision by President Clinton to commit the armed forces of the United States to combat action as part of the NATO led campaign without seeking congressional authorization triggered a judicial challenge by a number of legislators led by Representative Tom Campbell of California. Representative Campbell brought the challenge based on his assertion that the President was acting in direct violation of both the Constitution and the War Powers Resolution. Unlike similar challenges to prior presidential military commitments, the duration of the combat operations against Serbia precluded any "implied sixty day clock" theory of compliance with the Resolution. The challenge was ultimately dismissed on justiciability grounds by the United States Court of Appeals for the District of Columbia. This article analyzes the nature of the military operations and the basis for the dismissal, and asserts that the true effect of the court's decision was to effectively nullify the significance of the War Powers Resolution as a barrier to presidential war making initiatives. In so doing, the court confirmed the continuing validity of longstanding separation of power jurisprudence related to war making decisions.

Cunningham on Common Law as an Interative Process Lawrence A. Cunningham (Boston College Law School) has posted The Common Law as an Iterative Process: A Preliminary Inquiry (Notre Dame Law Review, Vol. 81, No. 3, pp. 747-782, 2006) on SSRN. Here is the abstract:
    The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be hard to escape. Escape occurs through a second attribute of iterative processes, called self-similarity. Self-similarity in an iterative process exists when the output of one operation closely resembles the output in the next operation. Applications of an existing rule to new disputes bear that quality when disputes generated by the rule's initial conditions continue to be resolved in the same way. Non-self-similar applications of a rule involve departures from earlier formulations. When self-similarity dominates, the population of disputes cognizable under a rule is stable. Evolution and articulation of social norms promotes growth of non-self-similarity which threatens stability in the population of disputes. Such threats and path dependency created by initial conditions are overcome by what this Article calls judicial bifurcation, meaning a splintering of the input rule in a later dispute so that the population of disputes attracted by the population of rules regains stability. This produces a dominant systemic tendency towards stability in the population of disputes attracted by the population of rules. This systemic tendency puts limits on the systemic significance of judicial discretion. The fabric of the common law absorbs social norms, more than any idiosyncratic prejudices or tastes of particular judges. Importance of facts captured by sensitive dependence on initial conditions entails a substantial complexity in law that demands a close and careful reading of individual cases to understand law. Yet resulting systemic stability and influence of bifurcations reveal a systemic simplicity in the common law process, entailing also a need to study rhythms of case law dispute resolution.

Sunday, June 25, 2006
Legal Theory Calendar
    Wednesday, June 28
      University of Cincinnati Law: Douglas Mossman, Predicting “Restorability” of Incompetent Criminal Defendants
    Thursday, June 29
      Florida State Law: Lorelei Ritchie de Larena, Florida State University College of Law

Legal Theory Lexicon: The Attitudinal Model & the New Institutionalism
    Introduction The legal academy is not the only locus for serious study of the law. Legal phenomena are examined in a variety of other disciplines—ranging from philosophy and sociology to history and anthropology, but political science (or “politics” or “government”) is the academic discipline that is most strongly associated with the study of law outside of the law schools. This entry in the Legal Theory Lexicon introduces two distinctive traditions for the study of the law from the perspective of political science. The first of these is the so-called “attitudinal model”—an approach that views courts—especially the United States Supreme Court—as policymaking institutions that are similar to legislatures and administrative agencies. The second approach is sometimes called “the new institutionalism” and it integrates a concern for legal doctrine and rules with other social science tools.
    As always, this entry in the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. Many of you were political science majors, and this may be “old hat” to you, but others will be exposed to these ideas for the first time. A word of warning: the dominant response of the legal academy to the study of law by political scientists is ignorance. It may seems strange, but it is nonetheless true that many law professors have barely heard of the attitudinal model and would have to guess what the “new institutionalism” might be. Don’t make this mistake. Political scientists bring a rich set of tools and concepts to legal theory, and the legal academy has much to learn from them. One more thing: this entry discusses only a small portion of the political science that is relevant to the study of law. Political science includes many different approaches—including rational choice and game theoretic approaches that have much in common with what is called “law and economics” in the legal academy.
    The Legal Model and the Attitudinal Model Suppose you were a political scientist and you wanted to explain and predict the behavior of a court—for example, the United States Supreme Court. What variables would serve as the best predictors? One possibility is that you would seek to predict Supreme Court decisions using legal concepts. For example, you might use the text of the Constitution as the basis for predicting the outcome of constitutional cases or the text of federal statutes to predict the outcome of cases that hinged on questions of statutory interpretation. Let’s call this approach to the explanation and prediction of legal decisions, the “legal model.”
    Even first-year law students are likely to see that the legal model may not do a very good job of predicting the outcome of appellate cases. Once you study constitutional law, you are likely to learn that decisions of the contemporary Supreme Court are rarely based on a simple application of preexisting legal rules to the facts (as they are presented to the Court given the procedural posture of the case). Instead, contemporary legal education is likely to emphasize the political dimension of the Supreme Court—with liberal, moderate, and conservative Justices lining up in more or less predictable patters, especially with respect to certain politically-charged issues—implied fundamental rights, federalism, and criminal procedure, for example.
    Within the legal academy, the connection between judicial decisionmaking and politics is associated with American legal realism (and, more recently, with the Critical Legal Studies movement). But in political science, this same insight has been developed in an empirically more rigorous way, and frequently is called “the attitudinal model.”
    The basic insight of the attitudinal model is that judicial decisions can, in at least some circumstances, be explained and predicted by the attitudes of judges. Thus, a simple attitudinal model might code each justice as occupying a point on a real line from left to right. A judge at the left-most point on the line would be very liberal. A judge on the right-most point of the line would be very conservative. The model might then predict how a judge’s attitudes (or position in attitudinal space) would correlate with positions on particular issues. Conservative judges are likely to vote against a right to abortion; liberal judges may be likely to uphold assertions of national power against challenges on federalism grounds.
    Which model does a better job of predicting judicial behavior? If we limit our attention to the United States Supreme Court, it looks, at first blush, like the attitudinal model “beats the pants” off the legal model. But appearances may be deceiving. The United States Supreme Court does not hear very many “easy cases”—cases in which the application of preexisting legal rules control the outcome of the dispute. Indeed, the Supreme Court has a discretionary appellate jurisdiction (for the most part), and the Court rarely grants the writ of certiorari in cases in which the law is clear. Instead, the Court tends to focus on those cases in which the law is uncertain, the lower courts are divided, or there is a perceived need for a change in the law. Moreover, cases which are controlled by clear rules of law are usually settled. It is extremely rare for a party to spend the hundreds of thousands of dollars required to litigate a case to the Supreme Court on a sure-fire loser!
    There is another reason why we would not expect the Supreme Court’s decisions to be predicted by a simple “legal model.” The Court does not consider itself bound by its own prior decisions. Given that the Court has the legal power to depart from precedent, it is hardly surprising that the Court does not behave as if it were so bound.
    When the legal model is applied to the decisions of lower courts and to the behavior of litigants who settle disputes “in the shadow of the law,” legal rules and doctrines have much more explanatory power. For example, defendants will rarely pay large sums to settle claims that have no legal merit. Of course, this point needs to be qualified in various ways. If a case has sufficient merit to get to a jury, it may have settlement value, even if an “ideal” jury would find against the plaintiff. Similarly, litigation itself is costly, and meritless claims may have “nuisance value” so long as they cannot be thrown out of court at an early stage—by a demurrer or motion to dismiss for failure to state a claim upon which relief can be granted.
    More broadly, most legal practitioners (lawyers and judges, for example) are likely to think that a very simple attitudinal model is missing something. Even if politics is important and legal doctrine is not the only important factor that shapes legal behavior, any story about legal institutions that leaves the law out of the story seems to be missing something that is crucially important—both to the understanding of the law and to understanding American politics.
    The New Institutionalism And that brings us to what is sometimes called “the new institutionalism,” a somewhat eclectic movement within political science that seeks to integrate legal doctrine and the distinctive character of legal institutions in political-science approaches to the study of law. When I say “somewhat eclectic,” I mean that there is no single methodology or doctrine that characterizes all of the work that fits under the “new institutionalism” umbrella. And of course, the name of this approach, the new institutionalism, points backwards to an old institutionalism—the approach commonly associated with figures like Corwin and McCloskey (and more recently with Martin Shapiro). One way to look at the work in the “new institutionalist” tradition is to use the distinction between internal and external perspectives that is familiar to legal theorists.
    From the internal perspective, new institutionalist work is work that takes “the law,” broadly defined to include legal institutions, concepts, categories, and doctrines seriously. But new institutionalist work is not the same as doctrinal legal scholarship. The new institutionalists situate “the law” in political contexts. Where a doctrinalist analysis aims at producing a restatement of a legal rule, institutionalists are more likely to be focused on an elaboration of the development of legal thought in a wider social context.
    From the external perspective, new institutionalists are interested in the causal influences on and of legal phenomenon. Some new institutionalists embrace the attitudinal model as a starting point for their analysis, whereas others may be more critical of attitudinalism, but any work that looks at law from the external perspective will step outside of legal doctrine and ask questions about the causal influences that shape legal institutions.
    Conclusion It is hardly surprising that a brief Lexicon entry cannot do justice to a whole body of work. The best way to learn about the attitudinal model and the new institutionalism is to read some work. If I might be permitted to play favorites, I would strongly suggest The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman as a book the exemplifies the important contribution that political science can make to the study of law!
      Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997).
      Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, North Carolina: Duke University Press, 1993).
      Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993).
      Martin Shapiro, Law and Politics in the Supreme Court (New York, Free Press 1964).
      Howard Gillman, “What Has Law Got to Do With It?” 26 Law & Social Inquiry 465-504 (2001).
      Rogers Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," 82 American Political Science Review 89-108 (1988). (available on JSTOR, follow this link.)
      Supreme Court Decision-Making: New Institutionalist Approaches (edited by Howard Gillman & Cornell W. Clayton) (University of Chicago Press, 1999).
      The Supreme Court in American Politics: New Institutionalist Interpretations (edited by Howard Gillman & Cornell W. Clayton) (University Press of Kansas, 1999).

Saturday, June 24, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Yale Law School and the Sixties: Revolt and Reverberations by Laura Kalman. Here's a blurb:
    The development of the modern Yale Law School is deeply intertwined with the story of a group of students in the 1960s who worked to unlock democratic visions of law and social change that they associated with Yale's past and with the social climate in which they lived. During a charged moment in the history of the United States, activists challenged senior professors, and the resulting clash pitted young against old in a very human story. By demanding changes in admissions, curriculum, grading, and law practice, Laura Kalman argues, these students transformed Yale Law School and the future of American legal education. Inspired by Yale's legal realists of the 1930s, Yale law students between 1967 and 1970 spawned a movement that celebrated participatory democracy, black power, feminism, and the counterculture. After these students left, the repercussions hobbled the school for years. Senior law professors decided against retaining six junior scholars who had witnessed their conflict with the students in the early 1970s, shifted the school's academic focus from sociology to economics, and steered clear of critical legal studies. Ironically, explains Kalman, students of the 1960s helped to create a culture of timidity until an imaginative dean in the 1980s tapped into and domesticated the spirit of the sixties, helping to make Yale's current celebrity possible.

Download of the Week The Download of the Week is Contract Formalism, Scientism, and the M-Word: A Comment on Professor Movsesian's Under-Theorization Thesis by Jeff Lipshaw. Here is the abstract:
    In two recent essays, Professor Mark L. Movsesian has suggested that a significant difference between the classical formalism of Williston and the formalism of contemporary contracts scholars is the extent to which the earlier work was under-theorized. I want to suggest an area in which there is a consistency to the under-theorization between the classical and the modern contract formalists: the extent to which theorization in anything that approaches metaphysics is, and has been, consistently anathema. Modern theorizing is overwhelmingly of a particular form: dispassionate social science inquiry into how we tick, rarely questioned but implicit norms shaped solely around the utilitarian, if not material, consequence of choices, all seasoned by the occasional post-modern expression of futility and desperation around the indeterminacy of moral issues. It does not address the way we might think about solving the problem outside of the formal models (whether classically or economically based) of the law. In a brief response to Professor Movsesian, I encourage debating over contract law not just in the context of pragmatics of instrumental reason, but as part of a broader inquiry into and struggle with the ends to which any endeavor is directed.
Download it while it's hot!

Friday, June 23, 2006
Findley & Scott on Tunnell Vision in Criminal Cases Keith A. Findley and Michael Scott (University of Wisconsin Law School and University of Wisconsin Law School) have posted The Multiple Dimensions of Tunnel Vision in Criminal Cases (Wisconsin Law Review, Vol. 2006, No. 2) on SSRN. Here is the abstract:
    The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent. The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision. Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system. This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review. The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies - cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal. Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule. This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision.

Joondeph on O'Connor's Federalism Brad Joondeph (Santa Clara) has posted The Deregulatory Valence of Justice O'Connor's Federalism on SSRN. Here is the abstract:
    When Justice O'Connor announced her retirement in July 2005, reflections on her career teemed with references to her role as a leader of the Rehnquist Court's federalism revival. But the common perception of O'Connor as an ardent defender of the states' independent policymaking authority is grounded in a narrow understanding of constitutional federalism - one that focuses primarily, if not exclusively, on the limits of the national government's power. Constitutional federalism also involves a variety of structural constraints on state power, constraints that are designed to protect the interests of the nation as a whole. And in cases implicating these union-preserving provisions and doctrines - such as preemption and the dormant Commerce Clause - O'Connor did not demonstrate a similar dedication to state autonomy. Rather, her voting record was no more protective of the states' independent authority than the average justice with whom she served. This article presents a empirical assessment of Justice O'Connor's voting record in the full range of cases addressing the Constitution's federalism-based limits on governmental power, comparing her record to that of the justices with whom she served. It demonstrates that her reputation as a strong proponent of vibrant state autonomy needs to be tempered, for it is only accurate with respect to disputes about the powers of the national government. If we expand the universe of federalism cases to include those involving the Constitution's structural limits on the states, O'Connor's dedication to state autonomy appears rather tepid. In fact, an equally prominent theme, especially in the second half of her tenure on the Court, is that she tended to disfavor government regulation of any sort, whether it emanated from Congress or the states.

Leib on Appiah Ethan J Leib has posted Rooted Cosmopolitans on SSRN. Here is the abstract:
    This is a review essay of Kwame Anthony Appiah's recent book, Cosmopolitanism (Norton 2006).

New Issue of YLJ Online The June 20006 isssue is online! Jamal Greene has Beyond Lawrence: Metaprivacy and Punishment:
    Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill’s On Liberty–and communitarian–William Eskridge has described it as the gay rights movement’s Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality.
Douglas G. Baird and Donald S. Bernstein have Absolute Priority, Valuation Uncertainty, and the Reorganization Bargain
    In a Chapter 11 reorganization, senior creditors can insist on being paid in full before anyone junior to them receives anything. In practice, however, departures from “absolute priority” treatment are commonplace. Explaining these deviations has been a central preoccupation of reorganization scholars for decades. By the standard law-and-economics account, deviations from absolute priority arise because well-positioned insiders take advantage of cumbersome procedures and permissive judges.
And there is a colloquium on Akhil Reed Amar's America's Constitution and Jed Rubenfeld's Revolution by Judiciary with contributions from Stephen Breyer, Jeb Rubenfeld, Akhil Amar, Michael Paulsen, and Jeff Powell.

Thursday, June 22, 2006
Parry & Hibbard on Sentimental Heroines John T. Parry and Andrea L. Hibbard (Lewis & Clark College - Law School and Lewis & Clark College) have posted Law, Seduction, and the Sentimental Heroine: The Case of Amelia Norman on SSRN. Here is the abstract:
    This article examines the notorious mid-nineteenth-century American trial of Amelia Norman, who was acquitted – very much against the weight of the evidence – of attempting to kill the man who seduced her. In particular, we explore the role in the trial and its aftermath of the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's The Coquette and Susanna Rowson's Charlotte Temple. In Norman's case, once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, not attempted murder. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgments on her behalf. For example, Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. Going further, the common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Other women facing similar charges used the same legal strategy to gain acquittals in a substantial number of cases. Indeed, Norman's sentimental strategy proved so powerful that men on trial for killing their wive's seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms through the so-called honor defense. In the end, then, Norman's trial fostered legal reform, but it also suggested – as Lydia Maria Child's fictionalization of the case in Rosenglory recognized – that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. In addition to its legal, literary, and historical insights that it provides, we also intend this article to contribute to debates on the nature of scholarship in law and literature. Scholars such as Wai Chee Dimock have argued for a focus on the historical and historically shifting relations between law and literature - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). We would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. This project, then, responds to Gregg Crane's call for attention to the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice. The extended story of Amelia Norman, in short, not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction.

Cho on Doha Sungjoon Cho (Chicago Kent College of Law) has posted Doha's Development (Berkeley Journal of International Law, Vol. 25 No. 2, 2006, Forthcoming) on SSRN. Here is the abstract:
    This Essay argues that the current development crisis within the Doha Round is inextricably linked to the nature of modern day trade negotiations. This Round reveals a bargaining process in which the powerful can too easily exploit and prevail over the powerless. This process is also vulnerable to domestic political maneuvers such as capture. Under these circumstances, poor countries' development concerns are not well represented, which accounts, despite years of talks, for the current sorry state of the negotiational outcome on agricultural subsidies and tariffs. To overcome these flaws of trade negotiation, this Essay suggests that certain core legal precepts, such as antiprotectionism, should limit ability to pursue mercantilist options. Adjudication under the WTO dispute settlement mechanism can also provide further discipline over the negotiation process by shedding a legal light on power differential. To tackle the problem of capture, a “bottom-up” formulation of negotiation positions through active public participation in the domestic arena will change the dynamic of the “two-level game” and thus deliver negotiating positions that cater to the broad public welfare, not to the most powerful special interests.

Conference Announcement: Ethical Naturalism at Durham
    Conference: Problems and Prospects for Ethical Naturalism A postgraduate conference at St John's College, Durham University, UK 11th - 12th August 2006 Keynote speakers: Mary Midgley and Alexander Miller Alongside the seemingly inexorable march of scientific discovery, the doctrine of philosophical naturalism, variously understood, has grown to approach the status of orthodoxy, both in philosophy departments and in secular culture at large. To many it seems that the natural sciences, and especially the neo-Darwinian synthesis, provide overwhelming support for the view that human beings are continuous with the world amenable to study by the natural sciences. There are, it might be suggested, no chasms in nature. Within this context there is a pressing need to understand the relationship between man and the natural world in which he finds himself. The natural world becomes a source of moral value and, indeed, a heightened source of moral problems. Thus, ethicists are increasingly looking to the natural world for the basis of morality. It is against this backdrop that we hold a conference entitled 'Problems and Prospects for Ethical Naturalism'. The conference will be relevant not only to students of ethics, but to anyone interested in philosophical method, especially the application to philosophical issues of the natural and human sciences. This conference is promarily intended for the benefit of postgraduate students, but all are welcome to attend. Please visit the website for further information and registration form: Contact Liz McKinnell ( Last date for registration: July 31st

Tuesday, June 20, 2006
Lipshaw on Contract Theory Jeff Lipshaw (Tulane) has posted Contract Formalism, Scientism, and the M-Word: A Comment on Professor Movsesian's Under-Theorization Thesis on SSRN. Here is the abstract:
    In two recent essays, Professor Mark L. Movsesian has suggested that a significant difference between the classical formalism of Williston and the formalism of contemporary contracts scholars is the extent to which the earlier work was under-theorized. I want to suggest an area in which there is a consistency to the under-theorization between the classical and the modern contract formalists: the extent to which theorization in anything that approaches metaphysics is, and has been, consistently anathema. Modern theorizing is overwhelmingly of a particular form: dispassionate social science inquiry into how we tick, rarely questioned but implicit norms shaped solely around the utilitarian, if not material, consequence of choices, all seasoned by the occasional post-modern expression of futility and desperation around the indeterminacy of moral issues. It does not address the way we might think about solving the problem outside of the formal models (whether classically or economically based) of the law. In a brief response to Professor Movsesian, I encourage debating over contract law not just in the context of pragmatics of instrumental reason, but as part of a broader inquiry into and struggle with the ends to which any endeavor is directed.
Lipshaw is an incredibly interest and creative thinker!

New Legal Realism Check out the website for this project-sponsored in part by the American Bar Foundation. Here's a bit from the page:
    The New Legal Realism Project (NLR) was initially sponsored by the American Bar Foundation and the Institute for Legal Studies at the University of Wisconsin Law School. The Project's goal is to develop rigorous, genuinely interdisciplinary approaches to the empirical study of law. In recent years, legal academics have shown renewed interest in social science. However, to date there has been no organized paradigm within the legal academy for translating and integrating diverse social science disciplines and methodologies. NLR scholarship pays systematic attention to this process of translation and integration. Like the "old" legal realists, we seek to bring the best of current social science and legal scholarship to bear on important policy issues of our day - but with the benefit of several generations of new knowledge.

Kochan on Statutory Limitations on Presidential Nominations Donald Kochan (Chapman University - School of Law) has posted The Unconstitutionality of Class-Based Statutory Limitations on Presidential Nominations: Can a Man Head the Women's Bureau at the Department of Labor? on SSRN. Here is the abstract:
    Can a man be the Director of the Women's Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women's Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters? This Article's case study is particularly relevant today, examining just how far Congress can go to limit the discretion of Executive authority. This Article examines instead the statutory ability to, ex ante, limit the President's choice of nominees. It examines the role of the Senate and Congress in the pre-selection criteria for nominees of the President to fill Officer positions within the United States government. Can sex, race, sexual orientation, economic status, or whether a nominee is a member of a particular organization be statutorily mandated (or prohibited) to limit the discretion of Presidential nominations for any particular position for Officers of the United States? Any such preferences can be taken into account as to whether the Senate will provide its advice and consent to any particular nomination, but it is unconstitutional to place such class-based preferences in statutory, pre-nomination mandates and restrictions. This Article argues that class preferences belong in the decision whether to provide advice and consent and not in pre-nomination statutory restrictions. This Article uses one example, the pre-nomination, statutory limitation regarding the Women's Bureau at the Department of Labor, to demonstrate the illegitimacy of statutory limitations on the President's nomination power based on class preferences. The place for the invocation of preferences is in the post-nomination/advice and consent process - not in statutory mandates. This Article concludes that the Constitution precludes Congress from placing limitations on the presidential nomination power. Mandatory, statutory pre-nomination limitations are simply beyond the Senate's advice and consent power.

Tuesday Calendar
    CERSA (Université de Paris 2): Lawrence Solum (University of Illinois), Legal Complexity, Phronesis, and Equity. This event will be held at the Salle de Séminaire 3 ème étage, 10 rue Thénard F-75005 Paris, M° Cluny, Sorbonne.
    University of Arizona Law: Kirsten Engel, "Who's Afraid of Overlapping Federal and State Jurisdiction?: Harnessing the Benefits of Competitive Vertical Federalism"

    "The homeless have questionable and variable access to legitimate private space. They live over time with little consistent unperturbed space to develop and manifest their inner identity in outward actions. They have no free space to experiment, make mistakes, or just "be" themselves, to learn or grow in a comfortable environment. Unlike the homed, the homeless lack liberty in this respect. Physically, the homeless do not have the option to exclude others because they lack the financial capital to barricade their private sphere in a legally recognized manner. As such, their ability to materially and psychologically function as "normal" is reduced and, in turn, their ability to portray "reasonableness" to a judge or third party is lessened. The law categorizes space in a way that augments this phenomenon, rather than disrupts it; law strips the homeless of precious autonomy. In particular, the context of homelessness is not enunciated nor enforced in search and seizure jurisprudence, yielding contextual and abstracted decisions that recapitulate current power schematics, regardless of the intention of lawmakers. The Fourth Amendment currently protects "people" not "places." But the legal community generally ignores the claim that law treats homeless people differently based on a divide between private and public space. A reasonable expectation standard is necessarily selective upon implementation. In a home, with a widely recognized barrier erected around one’s belongings, an individual has a powerful and historically significant claim to the property and the privacy of the property inside of those walls. Without a home, a person lacks that presumption of privacy and liberty in law. Complexity and contradiction thus color issues of law, equality, and practicality. This article establishes a connection between personhood through property interests while intersecting search and seizure precedent into a property-based explication. Social and financial capital corresponds to the level of what, in theory, is an innate and unanimous right provided by the Constitution: protection from illegal searches and seizures."

Monday, June 19, 2006
Hazlett & Munoz on Spectrum Allocation Thomas W. Hazlett and Roberto E. Munoz (George Mason University and Universidad Tecnica Federico Santa Maria) have posted A Welfare Analysis of Spectrum Allocation Policies on SSRN. Here is the abstract:
    Economic analysis of spectrum allocation policies focuses on competitive bidding for wireless licenses. Auctions generating high bids, as in Germany and the UK, are identified as “successful,” while those producing lower receipts, as in Switzerland and the Netherlands, are deemed “fiascoes.” Yet, even full and costless extraction of license rents does not map directly to social welfare, because spectrum policies creating rents impose social costs. For example, rules favoring monopoly market structure predictably increase license values, but reduce welfare. This paper attempts to shift analytical focus to the relationship between spectrum policy (including license auctions) and efficiency in output markets. In cross-country comparisons of performance metrics in mobile telephone service markets, empirical estimates suggest that countries allocating greater bandwidth to licensed operators and achieving more competitive market structures realize demonstrable social welfare benefits. These gains generally dominate efficiencies associated with license sales. Spectrum policies and rules intended to increase auction receipts (e.g. reserve prices and subsidies for weak bidders), should be evaluated in this light.

Ahdieh on SOX Robert B. Ahdieh (Emory University School of Law) has posted From 'Federalization' to 'Mixed Governance' in Corporate Law: A Defense of Sarbanes-Oxley (Buffalo Law Review, Vol. 53, p. 721, 2005) on SSRN. Here is the abstract:
    Since the very moment of its adoption, the Sarbanes-Oxley Act of 2002 has been subject to a litany of critiques, many of them seemingly well-placed. The almost universal condemnation of the Act for its asserted 'federalization' of corporate law, by contrast, deserves short shrift. Though widely invoked - and blithely accepted - dissection of this argument against the legislation shows it to rely either on flawed assumptions or on normative preferences not ordinarily acknowledged (or perhaps even accepted) by those who criticize Sarbanes-Oxley for its federalization of state corporate law. Once we appreciate as much, we can begin by replacing the misleading rhetoric of 'federalization'. More importantly, we might begin to conceptualize a theory of corporate law that is both more effective in advancing our desired ends and perhaps closer to market realities than the competing paradigms presently in ascendance. In this spirit, I offer a model of jurisdictional redundancy - in which federal mandatory rules intertwine with state enabling rules, to create a more indeterminate regulatory regime than we might otherwise pursue. Such a scheme of 'mixed governance' may deprive legal scholars of the opportunity to draw clear distinctions, but may allow the regulation of corporate governance to operate more effectively, and to evolve more efficiently over time.
Wow, a SOX defender! Who knew they were out there?

Eastman on Bush v. Gore John C. Eastman (Chapman University School of Law) has posted Politics and the Court: Did the Supreme Court Really Move Left Because of Embarrassment Over Bush v. Gore? (Georgetown Law Journal, 2006 Forthcoming) on SSRN. Here is the abstract:
    The premise of the “hot topics” panel at the 2005 AALS convention was that the Rehnquist Court had in 2004 retreated from its bolder conservatism, asserting itself on the side of individual liberty against a federal government that had grown increasingly cavalier toward civil liberties during three years of a war on terror and two decades of a renewed war on crime. Proof of the premise was said to be found in a pair of Sixth Amendment cases, Crawford v. Washington and Blakely v. Washington, and also in the trilogy of terrorism cases, Rumsfeld v. Padilla, Hamdi v. Rumsfeld, and Rasul v. Bush. This article argues that the premise of the panel was flawed, based as it was on a stereotypical yet false view of the Rehnquist Court. The Rehnquist Court’s legacy was never about preferring law and order outcomes over civil liberties outcomes, or about siding with the government at the expense of individual criminal defendants. Rather, the Court’s legacy - and it was only modestly and rather inconsistently successful in this - was the revival of an originalist constitutionalism that took seriously the limits on governmental power actually detailed in the text of the Constitution itself, while also preserving the textual commitment to separation of powers and federalism. With this legacy in mind, I contend in Part II of the Article that the Sixth Amendment cases - or more precisely, the position in those cases of Justices Scalia and Thomas, the Court’s two most devoted originalists - are perfectly consistent with the Rehnquist Court’s broader devotion to principles of constitutionalism. In Part III, I take up the trilogy of terrorism cases and argue that, contrary to popular understanding, those cases actually reflect a proper deference to the executive branch in the exercise of its war-making powers. Finally, I take up in Part IV what I consider to be one of the most interesting aspects of this group of cases: Justice Scalia’s apparent invitation in the Hamdi case to revisit the current understanding of birthright citizenship, which has long ignored a crucial component of the Constitution’s text. I contend that the subject to the jurisdiction part of the Citizenship Clause means allegiance-owing jursidiction rather than mere territorial jurisdiction, and that as a result the Constitution does not mandate citizenship for the children of temporary visitors to the United States, particularly those who are here illegally.

Call for Papers: Conference on "Heresy, Blasphemy, and Freedom of Expression" at Central Florida
    Call for Papers Heresy, Blasphemy, and Freedom of Expression The University of Central Florida Department of Philosophy, the Ethics Center Initiative, the Humanities Center Initiative, the UCF Program for Information Fluency, Florida Philosophical Review: The Journal of the Florida Philosophical Association, and the Office of Student Rights and Responsibilities announce a call for papers for a conference on "Heresy, Blasphemy, and Freedom of Expression" to be held at the University of Central Florida in Orlando, Florida on January 18-20, 2007. This 3-day conference is intended to share information, ideas, and arguments on issues related to freedom of expression and discussion, freedom of the press, information and misinformation, and the acquisition, evaluation, use and dissemination of information. We seek papers and panel presentation proposals on the general theme of the conference as well as those relevant to the recent events and discussions surrounding the publication of "blasphemous" cartoon depictions of the prophet Muhammad. Our invitation for papers and panel discussion proposals on topics related to the theme of the conference is inter- and multi-disciplinary, including issues in art, the news media, teaching, government, academic integrity, censorship, moral responsibility, and other related concepts or topics that speak to moral, social, historical, political, aesthetic, religious, theological, scientific and other issues in the free flow of information; personal, social, institutional, and governmental responsibility concerning freedom, dissemination, and acquisition of information; and problems, theories, principles, and concepts involved in the acquisition, use, abuse, assessment, and dissemination of information in ethical, social, political, religious, personal, and professional contexts. Selected papers and proceedings of the conference may be published in a special edition of Florida Philosophical Review. Papers should be prepared for 30-40 minute presentation time. Proposals for round-table or panel discussions should be prepared for 50 minute presentation time. Submit an abstract of your paper of no more than 500 words, prepared for anonymous review. Round-table or panel discussion proposals must include the title of the discussion/presentation, participant names and areas of expertise, and a brief statement of the significance and goals of discussion of the topic. Abstracts of papers and round-table or panel discussion proposals must be received by October 15, 2006. Notifications will be finalized by December 10. The conference is open to participation and presentation of all academic levels (faculty, administrators, graduate and undergraduate students). You may send your abstract or proposal by e-mail to:

Sunday, June 18, 2006
Legal Theory Calendar
    Tuesday, June 20
      CERSA (Université de Paris 2): Lawrence Solum (University of Illinois), Legal Complexity, Phronesis, and Equity. This event will be held at the Salle de Séminaire 3 ème étage, 10 rue Thénard F-75005 Paris, M° Cluny, Sorbonne.
      University of Arizona Law: Kirsten Engel, "Who's Afraid of Overlapping Federal and State Jurisdiction?: Harnessing the Benefits of Competitive Vertical Federalism"
    Wednesday, June 21
      University of Cincinnati Law: Marianna Brown Bettman Ohio’s Struggle Over Prenatal Torts
    Thursday, June 22
      Florida State Law: Dan Markel (FSU)

Legal Theory Lexicon: Legal Theory, Jurisprudence, and the Philosophy of Law
    Introduction The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is “jurisprudence” a synonym for “philosophy of law” or are these two overlapping but distinct fields? Is “legal theory” broader or narrower than jurisprudence? And why should we care about this terminology?
    As always, this entry in the Legal Theory Lexicon series is aimed at law students, especially first-year law students with an interest in legal theory.
    Who Cares About Terminology Why should we care about terminology? Who cares what goes under the label “jurisprudence” or “philosophy of law” or “legal theory”? Well, of course, there is a sense in which we shouldn’t care at all. What matters in a deep way is the substance of theorizing about law. On the other hand, these labels are important for a different reason—because their use tells us something about the sociology of the academy. When people argue about what “jurisprudence” really is, the terminological dispute may reflect a conflict over “turf” and “authority.”
    Disciplinary Lines and Theorizing About Law Very broadly speaking, the turf of high-level legal theory is disputed by at least four groups. First and (still) foremost are the academic lawyers, those whose graduate-level training is exclusively (or almost exclusively) in law as it is taught in the legal academy. Second, there are the economists—some of whom are primarily (or exclusively) trained in economics; while others legal economists were trained primarily by law professors. Third, there is the “law and society” movement—broadly defined as the study of law from a social science (but noneconomic) perspective. Law-and-society theorists may have been trained in political science or sociology or criminology, but many may have been trained in the legal academy as well. Fourth, there is the law-and-philosophy movement, with “analytic legal philosophy” as the focal point of a variety of philosophical approaches. Many philosophers of law have formal philosophical training, but some were trained in law or political theory.
    So, what about the turf wars? Those who use the phrase “philosophy of law” tend to be philosophers, while the term “jurisprudence” is more strongly associated with the legal tradition of theorizing about the law, but there is frequently a blurring of the these two terms. From the 1960s on, a single figure had a dominant influence in defining the content of “philosophy of law” courses in philosophy departments and “jurisprudence” courses in the law schools—that figure was H.L.A. Hart. Of course, there were many, many exceptions, but for quite a long time the standard course in both disciplines included as a central, organizing component, an examination of Hart’s ideas, either The Concept of Law, Hart’s great book, or the Hart-Fuller debate in the Harvard Law Review. When I was a student in the 70s and early 80s, I thought that “jurisprudence” and “philosophy of law” were synonymous—and that both were references to analytic philosophy of law in the tradition of Hart and included figures like Dworkin and Raz. One consequence of the “philosophicalization” of jurisprudence was the move to fold moral and political philosophy into jurisprudence. I have a very clear memory of browsing the law shelves of the textbook section of the UCLA bookstore in the late 70s, and discovery John Rawls’s A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia as the texts for the jurisprudence course. I have always assumed that similar courses were offered elsewhere, although I could be wrong about that.
    Philosophy is important as a matter of the sociology of the legal academy, but it is not the only important interdisciplinary influence: economics, political science, and sociology, each of these also has a major influence. Given that the “jurisprudence” course was “captured” by philosophers, how could these other approaches to legal theorizing express their theoretical framework in the law school curriculum. One mode of expression was the alternative theory course—“Law and Economics” and “Law and Society” were the two leading competitors of “Jurisprudence.” Moreover, the tradition of distinctively legal thinking about high legal theory has never died out. American Legal Realism was largely the product of the law schools—although many other disciplines figured in the realist movement. Likewise, Critical Legal Studies was largely a phenomenon of the legal academy. Some jurisprudence or legal theory courses incorporate philosophy of law, law and economics, and law and society into a course that is taught from a distinctively legal point of view.
    What can we say about our three terms—jurisprudence, philosophy of law, and legal theory?
    Jurisprudence My sense is that most Anglo-American legal academics view “jurisprudence” as mostly synonymous with “philosophy of law”. This is not a unanimous view. There is still a lingering sense of “jurisprudence” that encompasses high legal theory of a nonphilosophical sort—the elucidation of legal concepts and normative theory from within the discipline of law. Moreover, in other legal cultures, for example, in Europe and Latin America, my sense is that the move to identify jurisprudence with philosophy of law never really took root.
    Philosophy of Law The meaning of the phrase “philosophy of law” is inevitably tied up in the relationship between the two academic disciplines—philosophy and law. In the United States and the rest of the Anglophone world, “philosophy of law” is a subdiscipline of philosophy, a special branch of what is nowadays frequently called “normative theory.” Of course, there are many different tendencies within academic philosophy generally and the philosophy of law in particular. Still, the dominant approach to philosophy of law in the Anglophone world is represented by “analytic legal philosophy,” which might be defined by the Hart-Dworkin-Raz tradition on the one hand and by the larger Austin-Wittgenstein-Quine-Donaldson-Kripke tradition on the other.
    Coexisting with the analytic tradition in the philosophy of law are many other philosophical approaches. These include Hegelianism, neo-Thomism, Marxism, as well as the contemporary continental philosophical tradition, ranging from Habermas (with close affinities to the analytic tradition) to Foucault and Derrida (with much more tenuous links).
    The philosophy of law covers a lot of ground. An important line of development focuses on the “what is law?” question, but much contemporary legal philosophy is focused on normative questions in specific doctrinal fields. The application of moral and political philosophy to questions in tort and criminal law is an example of this branch of contemporary legal philosophy.
    Legal Theory Legal theory is a much broader and encompassing term, encompassing the philosophy of law and jurisprudence as well as theorizing from a variety of other perspectives, including law and economics and the law and society movement. In my opinion, “legal theory” is currently the best neutral term for referring to legal theorizing, broadly understood. It allows us to avoid the turf wars and sectarian disputes that make the word “jurisprudence” somewhat problematic.
    Conclusion When you start theorizing about law, you are likely to adopt some term or phrase to describe your activity. “I’m doing jurisprudence,” or “I’m a philosopher of law.” I hope that this entry in the Legal Theory Lexicon will help you use these labels with some awareness of their history and the controversies that surround their use.