Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Saturday, July 22, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Dred Scott and the Problem of Constitutional Evil by Mark A. Graber. Here's a blurb:
Friday, July 21, 2006
Welcome to the Blogosphere . . . . . . to Jurisdynamics hosted by Jim Chen with contributions from Daniel A. Farber and J.B. Ruhl.
Bernstein on Lochner David Bernstein (George Mason University - School of Law) has posted Lochner v. New York: A Centennial Retrospective on SSRN. Here is the abstract:
Appointments Chairs Over at Prawfsblawg, the comments to the post entitled Faculty Appointments Chairs provide a list of the chairs are various American law schools.
Barton on Teaching & Scholarship--and some comments! If you are a legal academic, you should probably read this.
Benjamin Barton (University of Tennessee, Knoxville - College of Law) has posted Is There a Correlation Between Scholarly Productivity, Scholarly Influence and Teaching Effectiveness in American Law Schools? An Empirical Study on SSRN. Here is the abstract:
These five measures of research productivity cover virtually any definition of research productivity. Combined with four years of teaching evaluation data the study provides a powerful measure of both sides of the teaching versus scholarship debate.
The study correlates each of these five different research measures against the teaching evaluation index for all 623 professors, and each individual law school. The results are counter-intuitive: there is no correlation between teaching effectiveness and any of the five measures of research productivity. Given the breadth of the study, this finding is quite robust. The study should prove invaluable to anyone interested in the priorities of American law schools, and anyone interested in the interaction between scholarship and teaching in higher education.
And one more issue--what about peer versus student evaluations. Again, a bit more from the paper:
More research might result in more knowledge, which might result in more effective teaching.
More research might result in more knowledge, which might result in less effective teaching.
More research might divert effort from teaching, which might result in less effective teaching.
It is possible, however, that some of these effects might be observed with a different research design. If it were possible to do reliable assessments of the objective accuracy of information conveyed and to compare that to research productivity in the particular field, for example, there might be some correlation between productivity and teaching effectivenss (in the objective sense). But that would not necessarily correlate with student ratings of teaching effectiveness? Why not? Because generally law students are incapable of evaluating "knowledge of the subject matter." For one thing, they lack a good baseline for comparison, because the truth is that the general level of knowledge of subject-mater among legal academics is fairly shallow. And a student rarely learns enough about a subject to actually get ahead of the professor. Of course, we all know that occasionally newbie professors get caught in gaffs--but most experienced teachers learn how to avoid this--which is mostly a matter of not saying things you don't know, not mastering the subject so deeply that you can answer any question about any point accurately.
But with that caveat aside, this is clearly valuable research! Highly recommended for all legal academics!
Thanks Lisa Fairfax to via Dan Markel.
Thursday, July 20, 2006
Beta Version of the New Legal Theory Blog If you would like to see the new look of Legal Theory Blog, here is the URL:
This post will move to the top of the blog until the transition is complete.
Wednesday, July 19, 2006
Ibrahim on Director Liability and the Nature of the Board Darian Ibrahim (University of Arizona) has posted The Board as a Collective Body or a Collection of Individuals: Implications for Director Liability on SSRN. Here is the abstract:
Nichols on Chinese Regulation of Religion Joel A. Nichols (Pepperdine University - School of Law) has posted Dual Lenses: Using Theology and Human Rights to Evaluate China's 2005 Regulations on Religion (Pepperdine Law Review, Vol. 34, 2006) on SSRN. Here is the abstract:
Tuesday, July 18, 2006
Young Scholars and Empirical Research There is a thoughtful post entitled Should Young Scholars Engage in Empirical Legal Research? by Lisa Fairfax at Conglomerate. Here is a taste:
Hricik on Law Blogging David C. Hricik (Mercer University - Walter F. George School of Law) has posted Ethics of Blawging on SSRN. Here is the abstract:
May on Chevron Randolph J. May (The Free State Foundation) has posted Defining Deference Down: Independent Agencies and Chevron Deference (Administrative Law Review, Vol. 58, p. 429, 2006) on SSRN. Here is the abstract:
Taslitz on the Subconscious and Rape Andrew E. Taslitz (Howard University - School of Law) has posted Forgetting Freud: The Courts' Fear of the Subconscious in Date Rape (and Other) Cases on SSRN. Here is the abstract:
Sachs on Nuclear Waste Storage and the Mescalero Apaches Noah Sachs (University of Richmond School of Law) has posted The Mescalero Apache and Monitored Retrievable Storage of Spent Nuclear Fuel: A Study in Environmental Ethics (Natural Resources Journal, Vol. 36, p. 641, 1996) on SSRN. Here is the abstract:
Berners-Lee on Net Neutrality Tim Berners-Lee has an excellent post on Net Neutrality. Here's a taste:
Monday, July 17, 2006
Meese on Monopolization and the Theory of the Firm Alan J. Meese (College of William and Mary) has posted Monopolization, Exclusion and the Theory of the Firm (Minnesota Law Review, Vol. 89, 2005) on SSRN. Here is the abstract:
Brooks on Hegal on Monarchy Thom Brooks (University of Newcastle upon Tyne (UK)) has posted No Rubber Stamp: Hegel's Constitutional Monarch. Here is the abstract:
Matwyshyn on Spam Andrea M. Matwyshyn (University of Florida) has posted Penetrating the Zombie Collective: Spam as an International Security Issue (SCRIPT-ed, Vol. 4, 2006) on SSRN. Here is the abstract:
Tehranian on Middle-Eastern Legal Scholarship John Tehranian (University of Utah - S.J. Quinney College of Law) has posted Whitewashed: Towards a Middle-Eastern Legal Scholarship (Indiana Law Journal, Vol. 82) on SSRN. Here is the abstract:
Sunday, July 16, 2006
Legal Theory Calendar
Callfor Papers: Canadian Legal Education Annual Review
Legal Theory Lexicon: Libertarian Theories of Law
The libertarian tradition of social, political, and legal thought is rich and varied, no brief summary can do it justice. So the usual caveats apply. This is a brief introduction to libertarian thought with an emphasis on its role in normative legal theory. Debates about the true meaning of the term “libertarian” will largely be ignored, and will disputes over the advantages of “liberalism,” “classical liberalism,” and “libertarianism” as the best label for libertarian ideas. Enough with the caveats, here we go!
Historical Roots of Contemporary Libertarianism One good way to approach contemporary libertarian legal theory is via its historical roots. A good place to begin is with John Locke’s conception of the social contract.
John Stuart Mill and the Harm Principle John Stuart Mill was a liberal utilitarian, and so, in a sense, it is odd that he is also the author of one of the most important works in the libertarian tradition, On Liberty, a rich, complex, and easily misunderstood work. I am afraid I may be contributing to the misunderstanding by emphasizing just one idea from On Liberty--the so-called “harm principle.” Here is how Mill states the principle:
There are many different flavors of consequentialism, but in the legal academy, the most prominent strands of consequentialist thinking are associated with law and economics and assume a preference-satisfaction (or “welfarist”) notion of utility. Even among theorists who accept welfarism, there are major disagreements about how much and when government should regulate. But the general idea behind the consequentialist case for libertarianism is that markets are more efficient than regulation. This conclusion follows from fairly straightforward ideas in neoclassical microeconomics. Markets facilitate Pareto-efficient (welfare enhancing) transactions; regulations thwart such transactions.
Markets may lead to substantial disparities in wealth and income, but from the consequentialist perspective, such inequalities may not justify legislation that redistributes wealth and income. First, for a strict utilitarian, the distribution of utility itself is of no moral significance: classical utilitarians believe that the sum of utilities should be maximized, even if that means that some will be very well off and others very poor. Of course, there is a well-known utilitarian argument for the redistribution of wealth and income based on the idea of diminishing marginal utility, but this argument might be outweighed by the massive utility losses caused by redistributive programs—providing a utilitarian argument against government-mandated redistribution of wealth and income. Second, even consequentialists who believe in some form of egalitarianism might believe that the worst off members of society will be better served by a libertarian regime than by a social-welfare state. We are already on a tangent, so I’m going to leave the topic of redistribution—noting that this is an issue upon which consequentialists themselves many differ in a variety of ways.
In contemporary legal theory, Richard Epstein is the “libertarian” thinker who is most strongly associated with consequentialist foundations. Because he is a consequentialist, Epstein may not be a pure libertarian, but on a variety of issues (e.g. antidiscrimination laws), Epstein takes strongly libertarian positions.
Deontological Foundations Although some libertarians are consequentialists, many others look to deontological moral theory for the foundations of their libertarianism. There are many different strategies for arguing for libertarianism based on deontological premises. One method starts with the idea of self-ownership or autonomy. Each of us has a moral right to control our own bodies, free of wrongful interference by others. This might imply that each individual has a right against theft, battery, false-imprisonment, enslavement, and so forth. Of course, these rights might justify a certain kind of government—one that protects us against invasions of our rights. But when government goes beyond the protection of these rights, then government itself operates through force or threats of force. For example, the redistribution of income might be accomplished by taxing income to finance a welfare system. Taxes are not voluntary; tax payments are “coerced” via threats of violence and imprisonment. Without consent, it might be argued, these threats are wrongful actions.
In my mind, the deontological approach to the foundations of libertarian political theory is most strongly associated with the late Robert Nozick and his magnificent book, Anarchy, State, and Utopia (see reference below).
Pluralist Foundations There is an obvious problem with locating the foundations of a political theory, like libertarianism, in a deeper moral theory, such as some form of deontology or consequentialism. In a pluralist society, it seems very unlikely that any one view about morality will ever become the dominant view. Instead, modern pluralist societies are usually characterized by persistent disagreements about deep moral questions. If a particular form of libertarianism rests on deep moral foundations, then most of us will reject that form of utilitarianism, because we reject the foundations. One alternative would be to try to argue for libertarianism on the basis all of the different moral theories, but that is obviously a very time-consuming and difficult task. Another approach would be to articulate shallow foundations for utilitarianism—foundations that are “modular” in the sense that they could be incorporated into many different comprehensive theories of morality. This general strategy was pioneered by the liberal political philosopher, John Rawls—himself, of course, no libertarian.
One contemporary libertarian legal theorist who has pursued the pluralist strategy is Randy Barnett. In his book, The Structure of Liberty, Barnett argues that anyone who wishes to pursue their own interests—whatever those might be-- have good reasons to affirm a generally libertarian framework for government. Barnett’s case for libertarianism is complex, but his basic idea is that human nature and circumstances are such that the law must establish and protect property rights and liberty of contract. The key to Barnett’s argument is his identification of what he calls the problems of knowledge, interest, and power. For example, the problems of knowledge include the fact that each individual has knowledge of his or her circumstances that are relevant to how resources can best be utilized. This fact, combined with others, make decentralized control of resources through a private property regime superior to a centralized command and control system. For our purposes, it is not the details for Barnett’s argument, but his general strategy that is important: Barnett attempts to create a case for libertarianism that does not depend on either consequentialist or deontological moral theory.
A libertarian reform agenda might also include the legalization of various forms of conduct that are currently prohibited. Examples of this kind of reform might include the legalization of recreational drugs, the end of prohibitions on various consensual sexual activities, and the elimination of restrictions on gambling and prostitution.
Comprehensive Libertarian Reform: The Night-Watchman State A more ambitious libertarian agenda might be the establishment of what has been called the night-watchman state. The idea is that government would limit its role to the protection of individual liberty. Government would continue to provide police protection, national defense, and a court system for the vindication of private rights (property, tort, and contract rights, for example), but nothing else. In other words, the function of law would be limited to those activities that are necessary for the protection of private property and liberty.
The difference between the advocacy of modest and comprehensive libertarian reform may be more a matter of tactics than of principle. One might believe that there is no realistic chance of a transition to a night-watchman state. Those who advocate such comprehensive reform may undermine their own political effectiveness by sounding “radical.” So as a matter of practical politics, it may be that libertarians are most effective when they advocate marginal reforms that move the system incremental in libertarian directions.
Libertarian Revolutions: Anarchy and Polycentric Constitutional Orders Some libertarians advocate an agenda that is even more radical than the night-watchman state. One might question whether there is a need for the nation state at all. One version of this more radical approach is pure anarchism—the view that no government is necessary because individuals can coexist and cooperate without any need for state action. Another variation of this idea is sometimes called a “polycentric constitutional order.” The idea is that individuals could subscribe to private firms that would provide the police and adjudication functions of the night watchman state. Such a society would have entities that functioned like governments in some ways—with the important exception that individuals would enter into voluntary agreements for their services.
Another rival to libertarianism is the view that legislation should aim at the promotion of virtue in the citizenry. If one believes that the aim of government is to make humans into better people, then one is likely to see a variety of restricts of liberty as justified. (Let’s call views that see virtue as the end of government “aretaic political theories.”)
Aretaic political theorists are likely to disagree with libertarians over what might be called “moral legislation.” For instance, one might believe that legal prohibitions on gambling, drugs, and prostitution are justified because they help promote a moral climate where most citizens don’t want to engage in these activities. Many libertarians would say it is simply not the business of government to decide that a taste for gambling is a bad thing; whereas many virtue theorists are likely to say that this is precisely the sort of work that governments should be doing.
Conclusion Libertarian legal theory is interesting on the merits—as one of the most significant normative theories of law. But there is another important reason for legal theorists to be interested in libertarianism even if they ultimately reject it. Libertarian legal theories call into question the very purpose of law and government. A really careful evaluation of libertarianism requires that one form views about the function of law and the purposes of government, and to confront a variety of criticisms of conventional views about those topics. For that reason, thinking about libertarian legal theory is an excellent way of thinking about the most fundamental questions in normative legal theory.
Once again, this entry is bit too long, but I hope that I’ve provide a good starting point for your investigations of libertarianism. I’ve provided a very brief set of references for further exploration.
Richard A. Epstein, Skepticism and Freedom : A Modern Case for Classical Liberalism (Chicago: University of Chicago Press, 2003).
Robert Nozick, Anarchy State and Utopia (New York: Basic Books, 1977).
Saturday, July 15, 2006
Download of the Week The Download of the Week is Habermas's Call for Cosmpolitan Constitutional Patriotism in an Age of Global Terror: A Pluralist Appraisal by Michel Rosenfeld. Here is the abstract:
Legal Theory Bookworm The Legal Theory Bookworm recommends The Judge in a Democracy by Aharon Barak. Here's a blurb:
Friday, July 14, 2006
Brown on Plea Bargaining and Regulation of Defense Counsel Darryl K. Brown (Washington and Lee University - School of Law) has posted Executive-Branch Regulation of Criminal Defense Counsel and the Private Contract Limit on Prosecutor Bargaining on SSRN. Here is the abstract:
Gotanda on Transnational Contract Damages John Y. Gotanda (Villanova University School of Law) has posted Damages in Lieu of Performance Because of Damages in Lieu of Performance Because of Breach of Contract (Villanova Law/Public Policy Research Paper No. 2006-8, DAMAGES IN PRIVATE INTERNATIONAL LAW, Hague Academy of International Law, 2007) on SSRN. Here is the abstract:
Rosenfeld on Habermas on Patriotism Michel Rosenfeld (Cardozo Law School) has posted Habermas's Call for Cosmpolitan Constitutional Patriotism in an Age of Global Terror: A Pluralist Appraisal on SSRN. Here is the abstract:
Somin on Raich Ilya Somin (George Mason University - School of Law) has posted Gonzales v. Raich: Federalism as a Casualty of the War on Drugs (Cornell Journal of Law and Public Policy, Symposium on the War on Drugs, June 2006) on SSRN. Here is the Abstract:
Thursday, July 13, 2006
Yet More on Teaching and Scholarship Orin Kerr has a very good post entitled Legal Scholarship and "the Canon" at OrinKerr.com, which quite properly questions the empirical foundation for my claim that immersion in the canon--which is required of younger teachers--leads to a parallel immersions in canon-focused scholarship. Also, Peter Spiro has a post entitled International Legal Scholarship and the Lack of a Canon, in which he observes that not all fields of law have a canon, and makes the further claim that there is no canon in international law:
Read Kerr and Spiro!
Wednesday, July 12, 2006
More from Buck on Teaching and Scholarship Stuart Buck replies to my post prompted by his Teaching vs. Scholarship. I agree with almost everything in Buck's most recent post, but I wanted to say a few more words about the larger topic: Is teaching in competition with scholarship? Or a they complimentary?
This issue is usually framed somewhat simplistically. Back in the day, the lay of the land might have been appoximately as follows:
I could go on and one. I really am not arguing for any conclusion here. My point is really just that the terms of the debate have changed.
Tuesday, July 11, 2006
Buck on Teaching versus Scholarship Stuart Buck has a post on the old chestnut, the question whether scholarship interferes with or enhances teaching--in the context of legal education. One of Buck's points is that teaching may actually enhance scholarship:
I don't want to exaggerate. I actually agree with the Buck's core claim that teaching does enhance scholarship, but not for the reasons that Buck articulates. Teaching contracts, property, or constitutional law does not make you an expert--it does give you a broad overview of the core concepts and their interrelationships.
Read Buck's post!
Monday, July 10, 2006
State Decisis in a Court of Last Resort One of my favorite topics has come up over at PrawfsBlawg, where guest blogger Russell Covey has posted Are Supreme Court Justices Bound By Supreme Court Precedent? Here's a taste:
And also at Prawfsblawg, Will Baude writes:
There is something to this argument. Affording strong stare decisis effect to precedents that disregarded the Constitution would, in fact, be to elevate the status of judicial decisions above the Constitution itself. And such elevation would be inconsistent with the formal rule that the Constitution is the Supreme law of the land. In addition, giving precedents the power to overrule the Constitution would create questions of legitimacy. It is unclear whether there is any theory that would legitimate the assignment of a power to overrule the Constitution to the Supreme Court.
But these same problems do not exist if we are dealing with precedents that are based on formalist legal reasoning that aims at the interpretation and application of the original meaning of the Constitution. Such decisions do not involve an implicit claim that the Supreme Court may overrule or modify the Constitution—quite the contrary, they assume the opposite.
Of course, it is possible to disagree about the meaning of the Constitution. We may come to believe that a prior decision—although formalist in method—involved a mistake. The question then becomes, can we legitimately give stare decisis effect to a formalist decision if we believe the decision is mistaken? The answer to this question is “yes, we can.” Once we are operating within the realm of formalist precedents, the question is not “Are we respecting the authority of the Constitution?” but is instead, “What is the institutional mechanism by which disputes about the meaning of the Constitution are to be settled?” At one extreme, we can imagine that we would entitle each and every government official the authority to decide for herself what the Constitution means. The problems with that system are obvious—it would create uncertainty, unpredictability, and instability that would undermine the rule of law. Various other possibilities exist. We could give every judge the power to interpret the Constitution de novo, with no horizontal or vertical stare decisis. That system would not be as chaotic as one which gave the authority to every official—high and low—but it would, nonetheless, be a real mess. We could imagine a system in which every Supreme Court justice has interpretive authority, but a doctrine of vertical stare decisis binds the lower courts. That system would be more stable, but would still involve shifts in constitutional meaning—as the composition of the Court changes and as individual Justices change their minds. And at the other extreme from total hermeneutic polycentricism, would be a system in which the decisions of the Supreme Court which respect that text and original meaning are given binding effect—granting earlier Supreme Courts the power to constrain the interpretations made by later Supreme Courts. This final option maximize the rule-of-law values of stability, predictability, and certainty.
For more on this topic, see The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle
Some of my remarks above are adapted from a forthcoming piece, THE SUPREME COURT IN BONDAGE: CONSTITUTIONAL STARE DECISIS, LEGAL FORMALISM, AND THE FUTURE OF UNENUMERATED RIGHTS, which will appear in the University of Pennsylvania Journal of Constitutonal Law.