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.
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:
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:
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:
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:
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:
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:
Here is the syllabus:
Wednesday, June 28, 2006
Call for Papers: Multiculturalism and Moral Conflict at Durham
Call for Papers: Utilitiarism: An Ethics of Experience at the University of Rome
Conference Announcement: Social Sciences & Democracy at Ghent
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:
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:
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:
Cox on Redistricting Institutions Adam B. Cox (University of Chicago - Law School) has posted Designing Redistricting Institutions on SSRN. Here is the abstract:
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:
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:
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:
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:
Sunday, June 25, 2006
Legal Theory Calendar
Legal Theory Lexicon: The Attitudinal Model & the New Institutionalism
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!
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:
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:
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:
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:
Leib on Appiah Ethan J Leib has posted Rooted Cosmopolitans on SSRN. Here is the abstract:
New Issue of YLJ Online The June 20006 isssue is online! Jamal Greene has Beyond Lawrence: Metaprivacy and Punishment:
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:
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:
Conference Announcement: Ethical Naturalism at Durham
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:
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:
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:
University of Arizona Law: Kirsten Engel, "Who's Afraid of Overlapping Federal and State Jurisdiction?: Harnessing the Benefits of Competitive Vertical Federalism"
Stec on Homelessness & Personhood Justin Stec's WHY THE HOMELESS ARE DENIED PERSONHOOD UNDER THE LAW: TOWARD CONTEXTUALIZING THE REASONABLENESS STANDARD IN SEARCH AND SEIZURE JURISPRUDENCE has been posted on the web. Here's the abstract:
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:
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:
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:
Call for Papers: Conference on "Heresy, Blasphemy, and Freedom of Expression" at Central Florida
Sunday, June 18, 2006
Legal Theory Calendar
University of Arizona Law: Kirsten Engel, "Who's Afraid of Overlapping Federal and State Jurisdiction?: Harnessing the Benefits of Competitive Vertical Federalism"
Legal Theory Lexicon: Legal Theory, Jurisprudence, and the Philosophy of Law
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.