Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Wednesday, December 31, 2003
Change of Management For everything there is a season. For reasons that are beyond my control and which I do not have authority to divulge, the management of Legal Theory Blog is changing hands. For details, surf here. Update: My apologies to those of you who did not follow the link to Ciceronian Review's satirical post suggesting that LTB had been taken over by Dick Cheney. Not really. Conference Announcement: Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference Yale Law School will be hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference on March 26-28, 2004. Here is the description:
Bainbridge on the SEC Shareholder Access Proposal Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted A Comment on the SEC Shareholder Access Proposal on SSRN. Here is the abstract:
Bibas on Therapeutic Judging Stephanos Bibas (University of Iowa - College of Law) has posted Using Plea Procedures to Combat Denial and Minimization (JUDGING IN A THERAPEUTIC KEY, Bruce J. Winick & David B. Wexler, eds., 2003) on SSRN. Here is the abstract:
Cohen and Blavin on Internet Metaphors I. Glenn Cohen and Jonathan H. Blavin (Law Clerk, U.S. Court of Appeals for the First Circuit and Government of the United States of America - 9th Circuit) have posted Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary (Harvard Journal of Law and Technology, Vol. 16, No. 1, p. 265, Fall 2002) on SSRN. Here is the abstract:
Semeraro on Capital Sentencing Steven Semeraro (Thomas Jefferson School of Law) has posted Responsibility in Capital Sentencing (San Diego Law Review, Vol. 39, p. 79, 2002) on SSRN. Here is the abstract:
Tuesday, December 30, 2003
More on Public Reason and Faith-Based Prisons My post from yesterday, Public Reasons and Faith-Based Prisons, has prompted a variety of reactions. The distinguished law and religion scholar, Steve Smith, emailed comments which I've appended at the end of my original post. Rick Garnett replied to my post over at Punishment Theory. Here is a taste of Rick's post:
Defending the MLA Chun the Unavoidable defends the MLA against familiar criticisms in this post. See also Invisible Adjunct, John & Belle Have A Blog and John Holbo. Here is a taste of Chun's post:
Rorty on Habermas Richard Rorty has a marvelous review of Jurgen Habermas's Truth and Justification on Notre Dame Philosophical Reviews. Here is a taste:
Dana on Existence Value In a world of cost-benefit analysis, how might we account for the value associated with the mere existence of particular natural features (wetlands, forests, etcs.) when that value is not reflected in any form of consumption--other than knowledge that the particular feature exists? David A. Dana (Northwestern University Law School) has posted Existence Value and Federal Preservation Regulation on SSRN. Here is the abstract:
Stout on the New Finance Lynn A. Stout (University of California, Los Angeles - School of Law) has posted The Mechanisms of Market Inefficiency: An Introduction to the New Finance on SSRN. Here is the abstract:
Korobkin on Form Contracts & Bounded Rationality Russell B. Korobkin (University of California, Los Angeles - School of Law) has posted Bounded Rationality, Standard Form Contracts, and Unconscionability (University of Chicago Law Review, Vol. 70, p. 1203, 2003) on SSRN. Here is the abstract:
Monday, December 29, 2003
Public Reasons and Faith-Based Prisons (Update: & Comments by Steve Smith) Over at Punishment Theory, there has been a very interesting exchange on faith-based prisons. (Start here and scroll up.) In this most recent posts, the discussion has turned to the question whether it is appropriate for legislators to support faith-based prisons for religious reasons. Rick Garnett's most recent post takes on this thorny issue:
When thinking about this question, I think it is important to be careful and precise. Some of the distinctions that we ought to observe include the following:
2. To which of the following contexts does your principle apply:
4. In particular, would the following be appropriate uses of nonpublic reasons--only insofar as your ideal of public reason is concerned:
b. The inclusion of the following statement in a judicial opinion, "The legislature explicitly relied on Protestant Christianity as the reason for the passage of this bill. Were Protestantism the true faith, it would supply a rational basis for establishment of prisons that teach that doctrine. But Protestantism is a false doctrine, and therefore this legislation lacks a rational basis." Update: My colleague, Steve Smith, writes re my questions for Garnett:
Weekend Wrap Up On Saturday, the Download of the Week was Plea Bargaining Outside the Shadow of Trial by Stephanos Bibas, and the Legal Theory Bookworm recommended a collection of essays by Jeremy Waldron. Sunday's Legal Theory Calendar previewed the start of three important conferences, the Annual Meeting of the Association of American Law Schools, the Faculty Division of the Federalist Society, and the American Society for Political and Legal Philosophy. Also on Sunday, the Legal Theory Lexicon entry was on Positive and Normative Legal Theory. Allen and Mace on the Privilege Against Self-Incrimination The privilege against self-incrimination has long defied attempts at theoretical explanation. So, I was especially intrigued to see that Ronald J. Allen and M. Kristin Mace (Northwestern University Law School and Independent) have posted The Self-Incrimination Clause Explained and Its Future Predicted (Journal of Criminal Law and Criminology, 2003) on SSRN. Allen is, of course, one of our most eminent theorists of the law of evidence. Here is the abstract:
Edmundson on Privacy William A. Edmundson (Georgia State Law School) has posted Privacy (THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY, Martin P. Golding, William A, Edmundson, eds., Oxford: Blackwell Publishing, April 2004) on SSRN. Here is the abstract:
MacKinnon and Siegel's New Anthology on Sexual Harassment Catharine A. MacKinnon and Reva Siegel (University of Michigan Law School and Yale Law School) have posted Directions in Sexual Harassment Law: Introduction and Afterword (DIRECTIONS IN SEXUAL HARASSMENT LAW, Catharine A. MacKinnon and Reva B. Siegel, eds., Yale Press, 2004) on SSRN. Here is the abstract:
Greenberg on Deconstructing Binary Race & Sex Categories Julie A. Greenberg (Thomas Jefferson School of Law) has posted Deconstructing Binary Race and Sex Categories: A Comparison of the Multiracial and Transgendered Experience (San Diego Law Review, Vol. 39, p. 917, 2002) on SSRN. Here is the abstract:
Sunday, December 28, 2003
Legal Theory Lexicon: Positive and Normative Legal Theory
The core idea of the distinction between positive and normative legal theory is simple: positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas normative legal theories tell us what the law ought to be. Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are about facts and normative legal theories are about values. Positive Legal Theory Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:
Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules. Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.
Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose. They do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.
Positive Theory as a Constraint on Normative Theory Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory. Interpretivism and "Law as Integrity" There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post. For a complete collection of all the Legal Theory Lexicon posts with a table of contents, go here. Legal Theory Calendar
Friday, January 2
The Annual Meeting of the Association of American Law Schools begins today, with registration only.
Section on Law and Religion: One Nation Under God? Unity, Diversity, and Neutrality Under the Religion Clauses Joint Program of Sections on Alternative Dispute Resolution and Civil Procedure: Competing or Complementary Rule Systems? Adjudication, Arbitration and the Procedural World of the Future Section on Socio-Economics: Socio-Economics, Peace and Justice American Society for Political and Legal Theory continues, with two panels:
Toleration and Recognition, with Ingrid Creppell (George Washington University) delivers a paper entitled "Toleration, Politics and the Common World" and commentary is provided by Glen Newey (University of Strathclyde, Glasgow) and Noah Feldman, New York University, with Jacob Levy, University of Chicago serving as chair. Saturday, December 27, 2003
WSIS My general impression has been that WSIS (the UN/ITU sponsored event on the "Information Society") hasn't produced much of value. For the IP Justice take on WSIS, go here. Ito & Seltzer on Blogging & Privacy Joi Ito posted the following:
More on Faith-Based Prisons Check out these posts by Rick Garnett and Kyron Huigens over at Punishment Theory. Update: And more from Southern Appeal and Will Baude. Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Jeremy Waldron's Law and Disagreement--a collection of 13 essays by one of the most thoughtful and interesting thinkers in the legal academy. Here is a passage that I particularly liked:
Download of the Week This week, the Download of the Week is Plea Bargaining Outside the Shadow of Trial (Harvard Law Review, June 2004) by Stephanos Bibas (University of Iowa - College of Law). Here is the abstract:
Friday, December 26, 2003
Green on Establishment of Religion in Prisons Over at Punishment Theory, Stuart Green has a nice post on establishment of religion in prisons. Four Michigan Law School Blogs I've been very impressed with Glorfindel of Gondolin, Silent Treatment, Letters of Marque, and Think Inc.. I've been slow in catching up with these law student blogs, so I hope its not too late to say "Welcome to the Blogosphere!" Birnhack and Rowbottom on Protecting Children from Harmful Material on the Internet Michael Birnhack and Jacob H. Rowbottom (University of Haifa - Faculty of Law and Independent) have posted Shielding Children: The European Way (Chicago-Kent Law Review, Vol. 79) on SSRN. Here is the abstract:
Bibas on Ineffective Assistance of Counsel Stephanos Bibas (University of Iowa - College of Law) has posted The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel (Utah Law Review, March 2004) on SSRN. Here is the abstract:
Conference Reminder: American Society for Political and Legal Philosophy If you will be attending the AALS meeting in Atlanta next week, remember that the American Society for Political and Legal Philosophy holds its meeting on January 2 & 3. Here is the scoop:
Thursday, December 25, 2003
Best Wishes from Legal Theory Blog In this holiday season, I would like to send my very best wishes to all the readers of Legal Theory Blog. Broome's Brown-Blackwell Lectures You can download John Broome's Brown-Blackwell Lectures in three parts: Lecture 1: Rationality; Lecture 2: Theoretical reasoning; and Lecture 3: Practical reasoning. Here is a tiny taste from the marvelous third lecture:
I ought to F So, I shall F. But there are many problems over this, and I cannot deal with them today. Instead, I am going to concentrate instrumental reasoning. Moreover, on a very special kind of instrumental reasoning: reasoning from an end to a means that you believe is necessary. This kind of reasoning should bring you to satisfy requirement (4). Of all types of practical reasoning, this type must surely be the easiest to understand. But it’s hard enough, and you will see that I do not feel secure with the account I have of it. Levy on Deflating Morality Neil Levy has posted Deflating Morality. Here is an excerpt:
Dinwoodie & Dreyfuss on Preserving the Public Domain of Science Graeme B Dinwoodie (Chicago-Kent College of Law) and Rochelle Cooper Dreyfuss (New York University School of Law) have posted Preserving the Public Domain of Science Under International Law on SSRN. Here is the abstract:
Wednesday, December 24, 2003
Posner on Same Sex Marriage Judge Posner has some typically illuminating thoughts about same-sex marriage here. I particularly like the following passage:
Bayne and Kolers offer a Pluralist Account of Parenthood Tim Bayne and Avery Kolers (Macquarie University - Department of Philosophy and University of Louisville - Philosophy Department) have posted Toward a Pluralist Account of Parenthood (Bioethics, Vol. 17, pp. 221-242, June 2003) on SSRN. Here is the abstract:
Hirsch on Abrogation of State Sovereign Immunity Pursuant to the War Power Jeffrey M. Hirsch (National Labor Relations Board, Appellate Court Branch) has posted Can Congress Use Its War Powers to Protect Military Employees from State Sovereign Immunity? (Seton Hall Law Review, Vol. 34, Spring 2004) on SSRN. Here is the abstract:
Nance & Morris on Jury Understanding of DNA Evidence Dale A. Nance and Scott B. Morris (Case Western Reserve University - School of Law and Illinois Institute of Technology - Institute of Psychology) have posted Jury Understanding of DNA Evidence: An Empirical Assessment of Presentation Formats for Trace Evidence with a Relatively Small Random Match Probability on SSRN. Here is the abstract:
Appell on Randall Kennedy Annette Appell (University of Nevada, Las Vegas - William S. Boyd School of Law) has posted Disposable Mothers, Deployable Children (Review Essay) (Michigan Journal of Race & Law, Vol. 9, 2004) on SSRN. Here is the abstract:
Tuesday, December 23, 2003
Welcome to the Blogosphere . . . to 110 West 3rd (The adventures of Huey, Dewey & Puddles @ New York University School of Law). Rappaport on Sunstein Over at The Right Coast, Michael Rappaport responds to Cass Sunstein's op/ed in the Washington Post entitled In Court v. Congress, Justices Concede One. Muller on Padilla & Gherebi Eric Muller has a thoughtful post on Padilla and Gherebi on Is That Legal?. For my money, these two decisions are an unqualified victory for the rule of law. Choice, Responsibility, and the Iraqi People Read Chris Bertram's four quotations on choice & responsisiblity over at Crooked Timber. Get Your Hasen Now Election-law superblogger Rick Hasen's new book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003), has almost sold out of its first press run. You can still get a copy of this excellent book from Amazon.com or Barnes & Noble (20% discount). Highly recommended. Lubben on Railroad Reorganization & Bankruptch Theory Stephen Lubben (Seton Hall University - School of Law) has posted Railroad Receiverships and Modern Bankruptcy Theory on SSRN. Here is the abstract:
Georgakopoulos on Judicial Recalls Nicholas L. Georgakopoulos (Indiana University School of Law - Indianapolis) has posted Judicial Reaction to Change: The California Supreme Court Around the 1986 Elections (Cornell Journal of Law and Public Policy, Forthcoming). Here is the abstract:
Monday, December 22, 2003
Weekend Update On Saturday, the Download of the Week was misnamed, because two papers, one by Eugene Volokh and the other my John Gardner, were recommended. Also on Saturday, the Legal Theory Bookworm recommended Akhil Amar's fine book on the bill of rights. On Sunday, a sparse Legal Theory Calendar included the first day of the American Philosophical Association's Eastern Division meeting, and the Legal Theory Lexicon discussed transparency. Rubenstein on Taking Away the Right to Vote Kim Rubenstein (University of Melbourne Law School) has posted Can the Right to Vote be Taken Away? The Constitution, Citizenship and Voting Rights in 1902 and 2002 (SELECTIVE DEMOCRACY: RACE, GENDER AND THE AUSTRALIAN VOTE, John Chesterman and David Philips, eds., Melbourne Publishing Group, 2003) on SSRN. Here is the abstract:
Bradford on the Laws of War William C. Bradford (Indiana University Purdue University Indianapolis (IUPUI) - School of Law) has posted Barbarians at the Gates: A Post-September 11th Proposal to Rationalize the Laws of War (Notre Dame Law Review, Vol. 79, 2004) on SSRN. Here is the abstract:
Bibas on Plea Bargaining Stephanos Bibas (University of Iowa - College of Law) has posted Plea Bargaining Outside the Shadow of Trial (Harvard Law Review, June 2004) on SSRN. Here is the abstract:
Brown on Prioritarianism for Variable Populatons Campbell Brown has posted Prioritarianism for Variable Populations. Here is a taste:
Sunday, December 21, 2003
Sunstein on the New Federaism Jurisprudence Cass Sunstein has an op/ed in the Washington Post entitled In Court v. Congress, Justices Concede One. Here is a taste:
Legal Theory Lexicon: Transparency
Transparency and Democratic Process Why should the processes of democratic decisionmaking be transparent? There are so many different answers to this question that one hardly knows where to begin, but we might start by distinguishing between answers that rely on consequentialist reasoning and those that appeal to ideas about rights, fairness, or legitimacy. The consequentialist case for transparency in government usually rests on the idea that opaque processes are likely to facilitate corruption or capture. Corruption is more likely because secret decisionmaking facilitates rent-seeking (soliciting bribes) by public officials; transparency processes make bribery more difficult and increase the likelihood that it will be exposed. "Capture" is the term used to describe domination of a regulatory process by the interests who are supposed to be regulated. When lawmaking (or administrative rulemaking) is done in secret, there is a greater likelihood that the information flow will be one sided. The Bush Administration's energy policy provides a good example of debates over the pros and cons of transparency in government. The administration developed its energy policy through non-transparent procedures. Vice-President Cheney met in private with a variety of interest groups, and the records of the meetings were not made available to the public. Critics charged that this secrecy allowed oil and coal interests to dominate the decision-making process to the detriment of the public interest. The administration defended the process, arguing that public processes would have inhibited free and frank discussion of the issues by the various interest groups. Whether or not this argument was correct in this particular context, it illustrates an important point. Transparency in government comes at a price. Transparent processes may be inefficient--what can be done in private in minutes may take hours in public. Transparent processes may also distort decision-making, forcing political actors to pander to public opinion at the expense of good policy. The case for transparency in government need not rest on consequences. It might also be argued that transparent government is required by the rights of citizens to meaningfully participate in democratic self-government. If public officials conduct business in private, then it becomes more difficult for citizens to make meaningful decisions at the ballot box. Transparency in the Market and the Boardroom The case for transparent markets is simple. Efficiency requires information. Efficient pricing, for example, requires that buyers know what they are buyng and sellers know what they are selling. "Buying a pig in a poke" is simply a colorful way of expressing the idea that a nontransparent transaction has occurred. Transparency is especially important in capital markets Securities regulation in the United States rests on the assumption that mandatory disclosure of accurate financial information will lead to investor confidence and facilitate efficient financial markets. Without transparency each investor would face either uncertainty or enormous information acquisition costs. Efficient capital markets produce enormous benefits, because they enable resources to be allocated to their highest and best use. Finally, transparency in corporate governance aims to prevent management from appropriating wealth owned by stockholders. There are, however, situations in which transparency is inconsistent with efficient markets. Trade secret law, for example, aims at the opposite of transparency. The theory is that the ability to keep secrets creates an incentive to develop new ideas, inventions, and processes; disclosure would allow competitors to appropriate the new idea without compensation, and hence would reduce the incentives for the creation of new knowledge. Similarly, corporations are not required to disclose business strategies and tactics. Transparent Judicial Procedures Civil litigation and criminal trials provide a final context in which transparency is an important value. When we think about the transparency of judicial procedures, there are two different groups for whom the process may be transparent or opaque. The first group is comprised of litigants (plaintiffs/defendants in civil litigation and defendants in criminal litigation). The second group consists of the public at large. Most legal systems place a higher value on transparency to participants than on transparency to the public. While it is not unusual for a hearing to be closed to the public, it is very unusual for a judicial proceeding to exclude the parties themselves. But there are important exceptions to this rule. Deliberations by both judges and juries are usually opaque. Thus, even the defendant in a criminal case is not allowed to observe the deliberations of the jury. A similar rule applies to judicial deliberations. For example, the conferences of an appellate court (e.g. the United States Supreme Court) are conducted in the strictest secrecy, as are the communications between among judges and between judges and their clerks. In these contexts, the thought is that open deliberations would actually distort the decision making process, leading to worse rather than better decisions. Conclusion Concern with process is ubiquitous in legal theory, and processes can be transparent or opaque. As a law student, you might begin to ask yourself about the effect of legal rules on transparency. Does this rule make the process more transparent or more opaque. When you encounter rules that render processes opaque, always ask why? Legal Theory Calendar
Saturday, December 28
Radical Philosophy Association meeting. Colloquium: Intention and Action Theory, Chair: Michael Thompson (University of Pittsburgh), wth papers by Jing Zhu (University of Waterloo), "On the Principle of Intention Agglomeration"; Commentator: Edward Hinchman (University of Wisconsin-Milwaukee); Luca Ferrero (University of Wisconsin-Milwaukee), "The Inefficacy of Future-Directed Intentions" Commentator: G.F. Schueler (University of New Mexico); Speaker: David A.Truncellito (George Washington University) , "Actions and Action-Processes: An Account of Act-Individuation" Commentator: Kieran Setiya (University of Pittsburgh). Saturday, December 20, 2003
Weatherson on Consequentialism Brian Weatherson blogs on his favorite moral theory over at Crooked Timber. Here is a taste:
Legal Theory Bookworm This week The Legal Theory Bookworm recommends The Bill of Rights: Creation and Reconstruction by Akhil Reed Amar. Amar is one of the most interesting and creative constitutional theorists in the American legal academy. Over and over again, I've found myself impressed by Amar's ability to make the case that what seems like a novel reading of the Constitution is, in fact, what the text meant all along. Especially compelling is Amar's insistence on intratextualism--which combines a belief in the primacy of the text with a commitment to holism, the insight that the words of a given constitutional provision can be illuminated by comparing the use of similar words and phrases elsewhere within the document. Amar's book on the bill of rights is already a classic. Here is the Amazon.com blurb on Amar's wonderful book:
Through skillful interpretation and solid research, Amar both reconstructs the original thinking of the Founding Fathers and chronicles the radical changes that have occurred since the inclusion of the 14th Amendment in the Bill of Rights. The results make for provocative reading no matter where you stand on the political spectrum. Download of the Week This week I am recommending two articles, one by John Gardner on tort theory and the other by Eugene Volokh on crime-facilitating speech. These are both extraordinary papers, among the best I've read this year:
This debate among lawyers raises theoretical issues about the separation of powers and the political role of courts. But it also raises issues about the purpose or point of tort law. At least, so say many legal theorists. They say that to adjudicate between the traditionalist and the revisionist tort lawyers, we first must decide between two warring theories of tort, or perhaps one should say two warring families of theories. On one side of the street there lives a family of instrumentalist theories, dominated by economic analysis of law. In the instrumental perspective, the point of tort law is the control of social costs, and all of tort law’s norms must answer to this point. On the other side of the street live those who think of tort law as the home of principles of justice, more particularly of something called corrective justice. Friday, December 19, 2003
RIAA v. Verizon Internet Services: DC Circuit Holds that Section 512(h) of the DMCA Does Not Authorize Subpoenas in P2P Cases The United States Court of Appeal for the District of Columbia Circuit has held that Section 512(h) of the Digital Millenium Copyright Act does not authorize subpoenas directed at ISP that are intended to discover the identity of those who share files over P2P services (KaZaA, etc.). Chief Judge Ginsburg's opinion can be found here. After reading the Opinion and the statute, I am convinced that the DC Circuit is correct. 512(h) subpoenas are limited to the situations described in Section 512(c)(3)(A), and that section is targeted at ISP's that host copyrighted materials on the ISP's own servers. P2P users host on their own computers, and hence (c)(3)(A) is inapplicable. I am writing in haste, but off the cuff, this seems quite significant: identifying P2P users is crucial to the RIAA's litigation offensive. The obvious next question is whether an alternative route is available to the RIAA for obtaining this information from the ISPs. The ISPs themselves cannot be named as parties in a P2P suit--because of the safe harbor provisions of the DMCA. The user cannot be sued, because the users identity is unknonw. Perhaps, the user could be sued as "Unknown KaZaA user of IP Number 100.155.23.100," and then discovery processes could be directed at the ISP. Any thoughts? Link courtesy of the stupendous Howard Bashman! Leib on Marxist Tort Theory Ethan J. Leib (Yale University - Department of Political Science) has posted What Should a Marxist Legal Analysis of Torts Become? on SSRN. Here is the abstract:
More on Padilla Bridget O'Neill has a piece entitled Jose Padilla: A Constitutional Challenge for Us All. Morgan on Copyright and the Public Interest Owen Morgan (University of Melbourne - Faculty of Law) has posted Copyright, the Public Interest and Content Restrictions (Media and Arts Law Review, Vol. 8, No. 3, p. 213, 2003) on SSRN. Here is the abstract:
Geidner on the Massachusetts Gay Marriage Ruling Chris Geidner's findlaw column argues that a civil-unions statute would not satisfy the Massachusetts Supreme Judicial Court's decision. Laurence Tribe replies here, with a further response from Geidner here. Brown on Prioritarianism Campbell Brown has posted The Priority of Benefits. Here is a taste:
Thursday, December 18, 2003
Padilla v. Rumsfeld: Second Circuit Rules that the President Lacks Inherent Power to Detain American Citizens as Enemy Combatants on American Soil
Mackenzie Reviews Friedman Over at Notre Dame Philosophical Reviews, Catriona Mackenzie has a Review of Marilyn Friedman's Autonomy, Gender, and Politics. Here is a taste:
Autonomy, Gender, Politics makes an important and challenging contribution to the development of relational approaches to autonomy and to the ongoing debate about how best to articulate a relational approach. The debate centres on two issues. One is whether relational theorists should endorse a content-neutral or a more substantive account of autonomy. Content-neutral, or procedural, approaches stipulate that an agent is autonomous with respect to her motivations, values, or choices just so long as these have been subjected to appropriate critical scrutiny, irrespective of their substantive content. Proponents of substantive approaches charge that the constraints on critical reflection required by content-neutral theories are insufficient to distinguish autonomous from non-autonomous reflection. Substantive approaches thus propose a range of substantive constraints on the content of an autonomous agent’s choices, beliefs, values and motivations. The other, connected, issue is whether sociality or relationality should be understood as merely causal or whether it should be understood as constitutive. In brief, is autonomy social just in the sense that human selfhood is social and the social environment provides the necessary causal conditions for the development of autonomy competence? Or is autonomy constitutively social? One way of articulating this claim would be to argue that autonomy is inconsistent with social relationships that subordinate an agent to the will of others. Another way of articulating the claim would be to argue that the reflective capacities necessary for autonomy are intrinsically social. Gardner on the Purpose of Tort Law at ANU In Australia, at ANU's RSSS, John Gardner (Oxford) presents What is Tort Law For? Here is a taste from the start of the paper:
This debate among lawyers raises theoretical issues about the separation of powers and the political role of courts. But it also raises issues about the purpose or point of tort law. At least, so say many legal theorists. They say that to adjudicate between the traditionalist and the revisionist tort lawyers, we first must decide between two warring theories of tort, or perhaps one should say two warring families of theories. On one side of the street there lives a family of instrumentalist theories, dominated by economic analysis of law. In the instrumental perspective, the point of tort law is the control of social costs, and all of tort law’s norms must answer to this point. On the other side of the street live those who think of tort law as the home of principles of justice, more particularly of something called corrective justice.
Volokh on Crime-Facilitating Speech at Yale Today at Yale's Legal Theory Workshop, Eugene Volokh, UCLA (Law) presents Crime-Facilitating Speech. Volokh is concerned, not with advocacy of unlawful conduct, but with examples like this:
Brown on Blameless Wrongdoing & Democracy Campbell Brown has posted Consequentialism, Democracy, and Blameless Wrongdoing. Here is a taste:
Wednesday, December 17, 2003
Brown & Nagasawa Ask Whether There Is A Best of All Possible Worlds Campbell Brown with Yujin Nagasawa have posted The Best of All Possible Worlds, forthcoming in Synthese:
More on the Fact/Value Distinction Over at punishment theory, Kyron Huigens has a very fine post on the fact/value distinction, which was the subject of Sunday's Legal Theory Lexicon. Be sure to click read Dennis Patterson's comments following Kyron's post. Sage on Malpractice William M. Sage (Columbia Law School ) has posted Understanding the First Malpractice Crisis of the 21st Century (Alice Gosfield, ed., HEALTH LAW HANDBOOK, 2003) on SSRN. Here is the abstract:
Parisi, Schulz, and Depoorter on Commons and Anti-Commons Francesco Parisi , Norbert Schulz and Ben Depoorter (George Mason University School of Law , University of Wuerzburg - General and Yale University - Law School) have posted Duality in Property: Commons and Anticommons (International Review of Law and Economics, Forthcoming) on SSRN. Here is the abstract:
Tuesday, December 16, 2003
Stunning Decision in Raich v. Ashcroft: Regulation of Homegrown Medical Cannabis is Outside Congress's Power The Ninth Circuit has decided Raich v. Ashcroft, ruling in favor of the plaintiff in an as-applied challenge to the Controlled Subtances Act in the context of homegrown marijuana. As you may already know, this case was argued by Randy Barnett (see his post on the Volokh Conspiracy here) in a magnificiently effective oral argument, that I blogged here. You can find the Ninth Circuit's opinion here. The AP Story is here. The constitutional question was whether Congress's power over interstate commerce extends to the regulation of homegrown marijuana for medical purposes. The Ninth Circuit, relying on the United States Supreme Court's decisions in United States v. Lopez and United States v. Morrison ruled for the plaintiffs. Unless and until the decision is stayed, the consequence is that homegrown medical marijuana is legal in the State of California. The federal statute is invalid, and state law permits the medical use of marijuana. The key to this case was the way that the class of activities regulated by Congress is defined. The government's position was that Congress was entitled to define the class, and hence that the relevant class of activity is defined by the broad sweep of the Controlled Substances Act (all drugs, commercial and noncommercial, interstate and intrastate). Under the relevant caselaw, this broad class of activity is within Congress's commerce power. The plaintiffs argued that the courts rather than Congress had a constitutional responsibility to define the relevant class, and that noncommercial, homegrown, medical marijuana use does not have a substantial effect on interstate commerce. The Supreme Court agreed with the plaintiffs on this crucial point. Here is an excerpt from the opinion:
Clearly, the way in which the activity or class of activities is defined is critical. We find that the appellants’ class of activities—the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician—is, in fact, different in kind from drug trafficking. For instance, concern regarding users’ health and safety is significantly different in the medicinal marijuana context, where the use is pursuant to a physician’s recommendation. Further, the limited medicinal use of marijuana as recommended by a physician arguably does not raise the same policy concerns regarding the spread of drug abuse. Moreover, this limited use is clearly distinct from the broader illicit drug market—as well as any broader commercial market for medicinal marijuana—insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce. Bill of Attainder The D.C. Circuit has struck down the Elizabeth Morgan Act on Bill of Attainder clause grounds. I found the decision quite odd. Isn't it clear that Congress's intent was to decide the custody dispute rather than to punish Eric A. Foretich? The section of the opinion that deals with this issue cites abundant evidence that Congress wanted to protect Elizabeth Morgan, but a Congressional intent to prevent Foretich from having contact with his daughter is not the same as an intent to punish Foretich! Of course, Congressional interference with specific child custody cases may be bad policy, but but the D.C. Circuit is bound by Supreme Court precedent limiting the Bill of Attainder clause to legislative acts that are punitive in nature. Based on my initial review of the opinion, the reasoning appears quite weak on this point. Courtesy of Howard Bashman. Lawyers and Philosophers Brian Leiter reports on some remarks by Mark Tushnet--which go to the philosophical ideal of precision. Tushnet argues that lawyers are less concerned with precision than philosophers. But lawyers can be quite precise when they are on their own turf--and my experience is that many philosophers get quite mushy when it comes to technical legal distinctions--especially those that do not have close philosophical analogs. Subways, Starbucks & Transaction Costs Economics Why are Starbucks company owned and Subways franchised? Bainbridge searches for a transactions cost answer. Here is a snippet:
Blair on Shareholder Value & Corporate Governance Margaret M. Blair (Georgetown University Law Center) has posted Shareholder Value, Corporate Governance and Corporate Performance: A Post-Enron Reassessment of the Conventional Wisdom (CORPORATE GOVERNANCE AND CAPITAL FLOWS IN A GLOBAL ECONOMY, Peter K. Cornelius and Bruce Kogut, eds., Oxford University Press, January 2003) on SSRN. Here is the abstract:
Monday, December 15, 2003
Ethical Selector Take this test! Frequent readers of legal theory blog may be able to guess with which philosopher I scored 100% agreement. Here are some other results:
Weekend Wrap Up On Saturday, the Download of the Week was The Case Against Moral Luck by David Enoch and Andrei Marmor. And the Legal Theory Bookworm recommended three books on the theory and history of contract law. Even with exam periods in full swing, there are still some entries for the Legal Theory Calendar. And the Legal Theory Lexicon on Sunday is on Facts and Values. Shah and Kesan on Code and Governance Rajiv C. Shah and Jay P. Kesan (University of Illinois at Urbana-Champaign - Institute of Communications Research (ICR) and University of Illinois College of Law and the Institute of Government and Public Affairs) have posted Manipulating the Governance Characteristics of Code (The Emerald Research Register Info, Vol. 5, No. 4, pp. 3-9) on SSRN. Here is the abstract:
Reich on the WTO Arie Reich (Bar-Ilan University - Faculty of Law) has posted The World Trade Organization as a Law Harmonizing Institution on SSRN. Here is the abstract:
Mary Rorty Review's Habermas Over at Notre Dame Philosophical Reviews, you will find Mary V. Rorty's Review of Jürgen Habermas' The Future of Human Nature:
Conference Announcement: 2004 Australasian Association of Philosophy
Sunday, December 14, 2003
Legal Theory Lexicon: Fact and Value Legal Theory Lexicon provides very short introductions to basic concepts of moral, political, and legal philosophy with an eye to law students, especially first year law students. Good luck to all of the readers of legal theory blog who are in the midst of exams. This week, we take a quick look at the fact/value distinction:
Hume on Deriving an Is from an Ought The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "is" from an "ought." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:
Conclusion: Therefore, the United States ought to withdraw from Iraq.
Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy. Conclusion: Therefore, the United States ought to withdraw from Iraq. G.E. Moore on the Naturalistic Fallacy The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-called naturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition. The Entanglement of Fact and Value It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what might be called thick ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thick ethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?" Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law! Legal Theory Calendar
At Yale's Legal Theory Workshop, Eugene Volokh, UCLA (Law) presents Crime-Facilitating Speech Saturday, December 13, 2003
Sen on Markets and Freedom Chris Bertram at Crooked Timber quotes Amartya Sen on markets and freedom. If you aren't already familiar with Sen, you will not regret surfing on over! Legal Theory Bookworm This week, Legal Theory Bookworm recommends three books about contract law. The first is Grant Gilmore's classic little book on the history of contract law, The Death of Contract. Gilmore's very short and very readable book provides a highly opinionated (and controversial) story about the evolution (and devolution) of contract law. The second is Charles Fried's Contract as Promise, which focuses on the normative foundations of contract law. Fried argues that contract law is essentially about promises, and his book provides an excellent counterpoint to Gilmore's. The third is The Rise and Fall of Freedom of Contract by Patrick S. Atiyah, which provides a comprehensive and scholarly account of the history of modern contract law. Update: Nate Oman suggests some additional recommendations: Michael J. Trebilcock, The Limits of Freedom of Contract, David Ibbetson, An Historical Introduction to the Law of Obligations and James Gordley, The Philosophical Origins of Modern Contract Doctrine. Download of the Week The Download of the Week is The Case Against Moral Luck by David Enoch and Andrei Marmor (Hebrew University and University of Southern California - Law School). Here is the abstract:
Friday, December 12, 2003
Bainbridge on Spitzer Stephen Bainbridge goes after my friend and law school classmate Eliot Spitzer here. Unlearned Hand on Procedure and Discourse in the Blogosphere Please read this marvelous post by Unlearned Hand over at En Banc. Cruel and Unusual? Kyron Huigens has a nice post on Justice Scalia and Pancuronium Bromide over at Punishment Theory. Rule Consequentialism NZ Polis and No Right Turn are having an interesting debate about rule consequentialism. Hitz on Plato & Democracy Zena Hitz has posted Plato, democracy, and desire. Here is a taste:
McGrath and Weatherson on Cloning Sarah McGrath and Brian Weatherson have posted Cloning and Harm. Here is an exerpt:
Sale on Delaware & Corporate Scandals Hillary A. Sale (University of Iowa College of Law) has posted Delaware's Good Faith (Cornell Law Review, Vol. 89, 2004) on SSRN. Here is the abstract:
Reese on the First Sale Doctrine R. Anthony Reese (University of Texas at Austin - School of Law) has posted The First Sale Doctrine in the Era of Digital Networks on SSRN. Here is the abstract:
Bratton on Rules, Principles, and Rents William W. Bratton (Georgetown University Law Center) has posted Enron, Sarbanes-Oxley and Accounting: Rules Versus Principles Versus Rents (Villanova Law Review, Vol. 48, p. 1023, 2003) on SSRN. Here is the abstract:
Conference Announcement: Public Trust and Private Interest
Huang on Frivolous Litigation Games Peter H. Huang (University of Pennsylvania Law School) has posted Lawsuit Abandonment Options in Possibly Frivolous Litigation Games (Review of Litigation, Vol. 23, January 2004). Here is the abstract:
Thursday, December 11, 2003
Stoljar on Zombies at ANU At ANU's RSSS, Daniel Stoljar (RSSS) presents Advertisement for a Solution to the Zombie Problem. But is it mere puffery? Peter Strauss at USD At the University of San Diego, Peter Strauss is presenting in the Law, Economics, and Politics Workshop Series. Call for Papers: Joint Session
Enoch & Marmor on Moral Luck David Enoch and Andrei Marmor (Hebrew University and University of Southern California - Law School) have posted The Case Against Moral Luck on SSRN. Here is the abstract:
Karel on Independent ISP's in New Zealand Annemieke Karel (Victoria University of Wellington) has posted The Development and Implications of Free ISPs in New Zealand on SSRN. Here is the abstract:
Herman on Appredni and the Sentencing Guidelines Susan M. Herman (Brooklyn Law School) has posted Applying Apprendi to the Federal Sentencing Guidelines: You Say You Want a Revolution? (Iowa Law Review, Volume 87, No. 2, March 2002). Here is the abstract:
Ryan on Wireless Spectrum Allocation Patrick S. Ryan (Katholieke Universiteit Leuven - ICRI) has posted Wireless Spectrum Allocation and New Technologies: Reviewing Old and New Paradigms Through a Case Study of the U.S. Ultra Wideband Proceeding on SSRN. Here is the abstract:
Wednesday, December 10, 2003
Aretaic Punishment Theory Over at Punishment Theory, Rick Garnett and Kyron Huigens are debating the aretaic turn (i.e. the turn to virtue-focused approches) as applied to the theory of punishment. BCRA Decision The Supreme Court has handed down its decision in the Bipartisan Campaign Reform Act case. Here is the opinion. And here is analysis from Rick Hasen. Gelepithis on Human-Robotic Communications Petros Gelepithis (Kingston University) presents An Argument for the Impossibility of Human-Robotic Communication at the Centre for Philosophical Studies in London. Persson on Persons Ingmar Persson (Lund University - Department of Philosophy) has posted Two Claims about Potential Human Beings (Bioethics, Vol. 17, pp. 503-517, October 2003) on SSRN. Here is the abstract:
Baums & Scott on Comparative Corporate Judgment Theodor Baums and Kenneth E. Scott (J.W. Goethe University, Frankfurt/Main and Stanford Law School) have posted Taking Shareholder Protection Seriously? Corporate Governance in the United States and Germany. Here is the abstract:
O'Hear on Federal/State Sentencing Disparities Michael M. O'Hear (Marquette University Law School) has posted National Uniformity/Local Uniformity: Reconsidering the Use of Departures to Reduce Federal-State Sentencing Disparities (Iowa Law Review, Volume 87, No. 2, March 2002) on SSRN. Here is the abstract:
Conference Announcement: Truth & Realism at St. Andrews
Tuesday, December 09, 2003
Stare Decisis, the Rule of Law, and Our Moment in History What if the current downward spiral of politicization were broken and the Supreme Court began to follow the rules laid down? Even if the Court were composed entirely of neoformalists, judges who had a true and deep commitment to decision on the basis of the constitutional text and history, many important questions would remain. One of the most important of these concerns the role of precedent. Matthew Yglesias's recent arguments in favor of a strong role for constitutional stare decisis have provoked another response--this one from Michael Rappaport:
If I might be excused for the crudest of generalizations, I would like to suggest the following picture. At this moment in history, the constitutional text and its original meaning are a mixed bag, but on balance taking the text seriously would mean a substantial devolution of power from the national government to the states. For example, an originalist approach to the commerce clause would necessitate a more limited role for the national government in consumer protection, environemental regulation, and so forth. The bag is mixed because on some issues (constitutional sovereign immunity and the 11th Amendment, the text and history may actually point in a pro-nationalist direction. Overall, originalism might turn out to have a bias towards the "right," although I am inclined to think that the long-term political effects of constitutional originalism are difficult to predict. And at this moment in history, constitutional precedent has a liberal tilt--the result of the long domination of the Court by the left from the late 1930s through the late 1970s or perhaps the early 1980s. Again, this is only an on-balance effect--many conservative decisions from the 1970s forward are in the United States Reports. If you are a realist, then none of this matters to you. For you, the law is an instrument to be wielded as a political sword to advance a political agenda. Some realists would use the sword to strike only the blows of high politics--where "high politics" is understood as limited to the great issues of constitutional principle. Other realists see no a priori prohibition against using the sword of instrumentalist law to strike low political blows--maniuplating election rules to shape the outcomes of electoral politics. But what if you are a formalist? What if you believe that the rule of law provides enormous goods and that a downward spiral of politicization creates enormous risks? How should a formalist react to the fact that at any given moment in history, a transition to formalism will create winners and losers? To me, the answer to this question seems obvious. If you are a formalist, the question should not be, "How can I shape the transition to constitutional formalist to advance my own political agenda?" If you thought that way, you wouldn't be a formalist. Rather, the question should be, how can the transition to formalism best advance the rule of law. I've argued that the answer to this question involves a traditional commitment to stare decisis as an integral part of the formalist program. For my take on these issues, see The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent?, a post in three parts, to wit:
Cheffins on Corporate Law Scholarship Brian R. Cheffins (Faculty of Law, University of Cambridge) has posted The Trajectory of (Corporate Law) Scholarship on SSRN. Here is the abstract:
Call for Papers: Nanotechnology
Bebchuk on Shareholder Access to the Ballot Lucian Arye Bebchuk (Harvard Law School) has posted Symposium on Shareholder Access to the Ballot on SSRN. Here is the abstract:
Fisch on Corporations and the Lawmaking Process Jill E. Fisch (Fordham University School of Law) has posted Corporations and the Lawmaking Process: The Case of Federal Express on SSRN. Here is the abstract:
Cox on Outside Directors and Independent Counsel James D. Cox (Duke Law School) has posted Managing and Monitoring Conflicts of Interest: Empowering the Outside Directors with Independent Counsel (Villanova Law Review, Vol. 48, No. 4, p. 1077, 2003) on SSRN. Here is the abstract:
Farrelly on Genes and Justice Colin Farrelly (University of Birmingham - Department of Political Science and International Studies) has posted Genes and Social Justice: A Rawlsian Reply to Moore (Bioethics, Vol. 16, pp. 72-83, 2002) on SSRN. Here is the abstract:
Monday, December 08, 2003
Neo-Formalism Matthew Yglesias writes:
Felten on Alternative Compensation for Copyright Owners Ed Felten has a good report on the Harvard conference, here. Dunbar on Fraud on the Market at Columbia At Columbia's Law and Economics series, Fred C. Dunbar - National Economic Research Associates, Inc. presents Fraud on the Market Meets Behavioral Finance. Buel on Domestic Violence & Tort at Texas At the University of Texas, Sarah Buel (UTLaw ) presents Access To Meaningful Remedy: Overcoming Doctrinal Obstacles In Tort Litigation Against Domestic Violence Offenders. Sanchirico on Error Chris William Sanchirico (University of Pennsylvania--School of Law & Wharton School) has posted Finding Error on SSRN. Here is the abstract:
Sitkoff on Capital Market Efficiency Robert H. Sitkoff (Northwestern University School of Law) has posted Trust Law, Corporate Law, and Capital Market Efficiency (Journal of Corporation Law, Vol. 28, 2003) on SSRN. Here is the abstract:
Call for Papers: International Justice at the University of Navarra
Tillman on Presentment Seth Barrett Tillman (New Jersey District Court) has posted A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Viriginia was Rightly Decided, and Why INS v. Chadha was Wrongly Decided on SSRN. Here is the abstract:
Huang on Regulating Irrational Exuberance Peter H. Huang (University of Pennsylvania Law School) has posted Regulating Irrational Exuberance and Anxiety in Securities Markets (THE LAW AND ECONOMICS OF IRRATIONAL BEHAVIOR, Francesco Parisi and Vernon Smith, eds., University of Chicago Press) on SSRN. Here is the abstract:
Branson on Enron Douglas M. Branson (University of Pittsburgh School of Law) has posted Enron - When All Systems Fail: Creative Destruction or Roadmap to Corporate Governance Reform? (Villanova Law Review Vol. 48, No. 4, pp. 989-1022, 2003) on SSRN. Here is the abstract:
Sunday, December 07, 2003
Legal Theory Lexicon: Conduct Rules and Decision Rules The target audience of Legal Theory Lexicon is law students, especially first year law students, with an interest in legal theory. Best of luck on your exams! Here is a very short entry to provide a very brief break from studying:
Example? Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content. But how can we excuse ignorance of the law without altering the conduct rule? One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the intentional content is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law. Legal Theory Calendar
Monday, December 8
At the University of Texas, Sarah Buel (UTLaw ) presents Access To Meaningful Remedy: Overcoming Doctrinal Obstacles In Tort Litigation Against Domestic Violence Offenders. Stephen Perry is presenting at NYU today. Steve, what's your paper title?
At the University of San Diego, Peter Strauss is presenting in the Law, Economics, and Politics Workshop Series. Saturday, December 06, 2003
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law by Allen Buchanan. Here is a precis of the book:
Download of the Week This week, the download of the week is Michael Moore and Heidi Hurd's paper, Punishing Hatred and Prejudice. Here is the abstract:
Friday, December 05, 2003
Netanel on a Use Levy & P2P On the heels of a terrific paper by Jessica Litman, comes this truly excellent paper by Neil W. Netanel (University of Texas School of Law): Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing (Harvard Journal of Law & Technology, Vol. 17, December 2003). Here is the abstract:
Brooks on Human Rights & Terrorism Rosa E. Brooks (University of Virginia - School of Law) has posted War Everywhere: Human Rights, National Security, and the Law of Armed Conflict in the Age of Terrorism on SSRN. Here is the abstract:
Welcome to the Blogosphere . . . to Punishment Theory, a group blog that includes Darryl Brown, Antony Duff, Claire Finkelstein, Rick Garnett, Stuart Green, Kyron Huigens, Stephen Morse, Ken Simons, and Victor Tadros. What a lineup! Bookmark this now! Fried on Nozick at Berkeley At UC Berkeley's Kadish Center, the General Aspects of Law series, Barbara Fried (Professor of Law and Deane F. Johnson Faculty Scholar, Stanford Law School) presents Begging the Question with Style: Anarchy, State and Utopia at Thirty Years. Islamic Law & Human Rights at Oxford At Oxford's Centre for Socio-Legal Studies, a conference on Islamic Law and Human Rights: An Ethnographic Approach with Fariba Adelkhah, John Bowen, Fikret Karcic, John Kelsay, Werner Menski, Ziba Mir Husseini, Christian Moe, Martha Mundy, Lawrence Rosen, and Mohammad Talib. Laclau on the Logic of Representation at Buffalo At the University of Buffalo, Ernesto Laclau presents Empty Signifiers and the Logic of Representation with comments by Guyora Binder & Betty Mensch. Weiner on Integration of the Civil Rights Movement at Rutgers At the University of Texas, Mark Weiner (Rutgers-Newark) presents The Multiple Integrations of the Civil Rights Movement. Duff & Darby on Trial by Jury at SAP London At the Society for Applied Philosophy in London, R. A. Duff (Stirling) & Penny Darbyshire (Kingston University) discuss The Future of the Right to Trial by Jury, with Thom Brooks (Sheffield) as Chair. Scheffler on Doing and Allowing at UNC At the University of North Carolina's philosophy series, Samuel Scheffler (Winston Distinguished Visitor) presents Doing and Allowing. Wolff on Disadvantage at Bristol At the University of Bristol's philophy series, Jo Wolff (UCL) presents What is Disadvantage and What Should be Done About it? Aristotle Conference in London At the University of London's Philosophy Programme, there is a one-day conference, Aristotle on Potentiality and Actuality. Lewinsohn-Zamir on Objective Welfare I strongly recommend Daphna Lewinsohn-Zamir's paper, The Objectivity of Well-Being and the Objectives of Property Law (78 N.Y.U. L. Rev. 1669 (2003), Westlaw here, account required). Here is a taste:
Sentencing Law Coursebook Nora V. Demleitner , Douglas A. Berman , Marc L. Miller and Ronald F. Wright (Hofstra University, School of Law (Visiting) , Ohio State University - Michael E. Moritz College of Law , Emory University School of Law and Wake Forest University - General) have posted Sentencing Law and Policy: Cases, Statutes, and Guidelines on SSRN. Here the abstract:
Call for Papers: Law & War
Paul on International Trade Institutions & Economic Development Joel R. Paul (University of California, Hastings College of the Law) has posted Do International Trade Institutions Contribute to Economic Growth and Development? (Virginia Journal of International Law, Forthcoming) on SSRN. Here is the abstract:
Garcia on Trade and Human Rights Frank J. Garcia (Boston College - Law School) has posted Integrating Trade and Human Rights in the Americas (INTERNATIONAL TRADE AND HUMAN RIGHTS: FOUNDATIONS AND CONCEPTUAL ISSUES, Frederick M. Abbott and Thomas Cottier, eds., University of Michigan Press, 2003) on SSRN. Here is the abstract:
Nachbar on IP & Constitutional Norms Thomas B. Nachbar (University of Virginia School of Law) has posted Intellectual Property and Constitutional Norms (Columbia Law Review, Vol. 104, March 2004) on SSRN. Here is the abstract:
Thursday, December 04, 2003
Stein on Utilitarianism and the Disabled Mark S. Stein (Yale University - Department of Political Science) has posted Utilitarianism and the Disabled: Distribution of Resources (Bioethics, Vol. 16, pp. 1-19, 2002) on SSRN (but there is a $19 charge for this paper). Here is the abstract:
Welcome to the Blogosphere . . . to Cliopatria, a group blob by historians:
Silver on Class Action Blackmail I highly recommend Charles Silver's recent article, "We're Scared to Death": Class Certification and Blackmail, 78 N.Y.U. L. Rev. 1357 (2003) (available on Westlaw here, account required). Silver offers a very careful analysis of the thesis that class actions lead to so-called blackmail settlements. One of the strenghths of Silver's article is his precise analytic dissection of the different versions of the blackmail argument--which Silver shows rely on different and inconsistent assumptions. The version of the blackmail thesis that I have always thought was plausible occurs when: (1) the defendant is a corporation, (2) if plaintiff wins, the damage award were affect control (i.e., who will manage the corporation), and (3) the plaintiff's probability of prevailing on the merits is very low. In these circumstances, there is arguably an agency problem. Shareholders with diversified portfolios should be risk-neutral and hence prefer management to roll the dice, but management does not have a diversified portfolio (You can only be CEO of one corporation at a time, and if you lose your company to a class action, your prospects of getting another CEO gig may effectively be zero, but in all likelihood settling a class action will have no significant effects on the rents you can extract from shareholders.) In the bargaining game for settlement, the plaintiff (or rather class counsel) knows that the three conditions are satisfied & knows about the agency problem described. Hence, the plaintiff can hold out for a settlement that exceeds the expected values of the claims. (Silver describes this view and cites to an unpublished paper by J.B. Heaton, Settlement Pressure 29 (Feb. 2002)). Silver offers a nuanced and to my mind fair assessment of this argument--which he frames as the question whether corporate class action defendants act "as if" they were risk averse--and then makes the following argument:
Affirmative answers to these questions have radical potential. If litigants' risk tolerances should guide judges' choices among available procedures, personal injury plaintiffs may be entitled to many accommodations. First, these plaintiffs typically are human beings, not corporations, so evidence of risk aversion applies to them straightforwardly. Second, the worst-off of these plaintiffs have severe injuries and correspondingly large compensation claims. The latter represent sizeable fractions of their wealth--perhaps their largest assets--and entail nondiversifiable risks. Risk aversion is likely to have serious consequences in this setting. Third, empirical studies show that plaintiffs with large personal injury claims often settle cheaply and identify risk aversion as the likely cause.
I learned greatly from Silver's article, which I recommend highly. Much of this is out of my area--so please take my comments as speculative suggestions. Bilgrami on Identity Politics at Penn Akeel Bilgrami (Philosophy- Columbia) presents Liberaism and Relativism in the face of Indentity Politics at the Penn's law and philosophy series today. The first paragraph starts thus:
Weiler on a Constitution for Europe at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, J.H.H. Weiler (NYU School of Law) presents A Constitution for Europe? Some Hard Choices. Jolls on Debiasing at Yale At Yale's Legal Theory Workshop, Christine Jolls (Harvard Law) presents Debiasing Through Law. Young on Structural Injustice at Princeton At the Princeton Political Philosophy Colloquium, Iris Marion Young will present Responsibility and Structural Injustice. Davis on Slavery at FSU At Florida State University, Adrienne Davis (University of North Carolina) presents Re-thinking Slavery. McAdams at the University of Michigan At the University of Michigan's Law and Economics series, Richard McAdams is presenting. Norman on the Meaning of Life at Herfordshire At the University of Hertfordshire Centre for Normativity and Narrative, Richard Norman (Kent) presents two lectures, Aesthetic Form and the Meaning of Life & The Ethics of War: War and Human Rights. Stanley on Interest Relativity and Knowledge at MIT At MIT's philosophy series, Jason Stanley (University of Michigan) presents Context, Interest-Relativity, and Knowledge. Molot on Judicial Role Jonathan T. Molot's An Old Judicial Role for a New Litigation Era recently appeared at 113 Yale L.J. 27 (2003) (Westlaw here, account required). Here is a taste of this very stimulating paper:
Margalioth on Mandates Yoram Y. Margalioth (Tel Aviv University - Law School) has posted The Many Faces of Mandates: Beyond Traditional Accommodation Mandates and Other Classic Cases (San Diego Law Review, Vol. 40, No. 645, Spring 2003) on SSRN. Here is the abstract:
Tiersma on the Meaning of Sex Peter Tiersma (Loyola Marymount University) has uploaded Did Clinton Lie?: Defining 'Sexual Relations' (Chicago-Kent Law Review, Forthcoming) to SSRN. Here is the abstract:
Eisenberg and Macey ask whether Anderson was Different Theodore Eisenberg and Jonathan R. Macey (Cornell Law School) have posted Was Arthur Andersen Different? An Empirical Examination of Major Accounting Firms' Audits of Large Clients on SSRN. Here is the abstract:
Licht on Corporate Governance Reform Amir N. Licht (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Legal Plug-Ins: Cultural Distance, Cross-Listing, and Corporate Governance Reform (Berkeley Journal of International Law, Forthcoming) on SSRN. Here is the abstract:
Beaulac on Vattel Stephane Beaulac (Faculty of Law, University of Montreal) has posted Emer de Vattel and the Externalization of Sovereignty (Journal of the History of International Law, Vol. 5, pp. 237-292, 2003) on SSRN. Here is the abstract:
Williams on Originalism Norman Williams (Willamette University - College of Law) has posted The Failings of Orginalism: The Federal Courts and the Power of Precedent (UC Davis Law Review, January/February 2004) on SSRN. Here is the abstract:
Licht on Corporate Governance Amir N. Licht (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Maximands of Corporate Governance: A Theory of Values and Cognitive Style on SSRN. Here is the abstract:
Wednesday, December 03, 2003
The Night of the Living Dead . . . or why we should read Marx today. Brian Leiter has a wonderful post on the contemporary relevance of Marx. Here is a taste:
Speech Act Theory & Overruling The November issue of the Yale Law Journal has a very interesting student note titled How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis, 113 Yale L.J. 493 (2003). (Westlaw here, account required). Here is a taste:
Patterson on Interpretation at Oxford Frequent readers of Legal Theory Blog know that one of the most interesting events of the week is likely to be the Tuesday paper at the Oxford's Jurisprudence Discussion Group. This week, the regular Tuesday meeting is moved to Wednesday. Dennis Patterson (Rutgers, Camden-Law & New Brunswick-Philosophy) presents Interpretation in Law. Here is a taste:
Mahoney on the Value of Judicial Independence at Northwestern At Northwestern's Law and Economics series, Paul Mahoney (University of Virginia School of Law) presents The Value of Judicial Independence: Evidence from 18th Century England. Stanko on Government Targets & Criminal Justice at Oxford At Oxford's CENTRE FOR CRIMINOLOGICAL RESEARCH Seminar Series, Betsy Stanko presents Between the Home Office, PSAs and a real place: a critical reflection on government targets and doing criminal justice. Araiza on Section 5 Power William D. Araiza (Loyola Marymount University) has posted The Section 5 Power and the Three-Tiered Structure of Equal Protection on SSRN. Here is the abstract:
Ghosh on Deprivatizing Copyright Shubha Ghosh (State University of New York - Law School) has posted Deprivatizing Copyright on SSRN. Here is the abstract:
Conference on the Laws of War (Today through Friday) at Notre Dame
Madigan on Self-Identifying Speech James P. Madigan (University of Chicago - Law School) has posted Questioning the Coercive Effect of Self-Identifying Speech (Iowa Law Review, Volume 87, No. 1) on SSRN. Here is the abstract:
Black and Cheffins on Comparative Outside Director Liability Bernard S. Black and Brian R. Cheffins (Stanford Law School and Faculty of Law, University of Cambridge) have posted Outside Director Liability Across Countries on SSRN. Here is the abstract:
Nance on Admissibility of Expert Testimony Dale A. Nance (Case Western Reserve University - School of Law) has posted Reliability and the Admissibility of Experts (Seton Hall Law Review, Vol. 34) on SSRN. Here is the abstract:
Margalioth on Tax Incentives for the Promotion of Developing Countries Yoram Y. Margalioth (Tel Aviv University - Law School) posts Tax Competition, Foreign Direct Investments and Growth: Using the Tax System to Promote Developing Countries (Virginia Tax Review, Vol. 23, Forthcoming) on SSRN. Here is the abstract:
Bake on Constitutional Theory Thomas E. Baker (Florida International University - College of Law) has posted Constitutional Theory in a Nutshell on SSRN. Here is the abstract:
Hall on Business Method Patents Bronwyn H. Hall (University of California at Berkeley) has posted Business Method Patents, Innovation, and Policy on SSRN. Here is the abstract:
Tuesday, December 02, 2003
Baker on the Voice of the People Lynn A. Baker (University of Texas Law School) has posted Preferences, Priorities, and Plebiscites on SSRN. Here is the abstract:
Bainbridge on Disney In the wake of Roy Disney's resignation, Stephen Bainbridge has a really fine post on the failures of the Walt Disney Co.'s Board of Directors. Here is a taste:
A Seat at the Bargaining Table I recently blogged Jessica Litman's paper Sharing and Stealing, quoting this passage:
A more difficult question is how to get consumers a seat at the table. There is, of course, a huge collective action problem. It is all well and good to discuss the moral and political claims of all citizens, but file sharers have a concrete interest and may even be politically engaged by the issue. As I read Litman, it is those characteristics that single out the 60 million as a politically relevant group. Leiter's Advice for Academic Job Seekers Brian Leiter has sound advice & good information for those seeking jobs in law schools or philosophy departments. Course Websites Eszter Hargittai blogs on the trend towards password protecting course web sites over at Crooked Timber. Here is a taste:
Bernstein on Article 2 at Northwestern At Northwestern's Empirical Legal Studies Colloquium, Lisa Bernstein (University of Chicago Law School) presents Custom in the Courts: The Flawed Evidentiary Basis of Article 2's Incorporation Strategy. Schwartz at Chicago At the University Chicago's Law and Economics Series, Alan Schwartz (Yale Law School) is presenting. Baade on the Texas Supreme Court at UT At the University of Texas Hans Baade presents The Post-Civil War Texas Supreme Court. Piper on the Patentability of Medical Diagnostic Methods At Oxford's IP Seminar, Tina Piper presents The Unpatentability of Medical Diagnostic Methods: A Promise and its Perils. Nolan on Rylands v. Fletcher at Oxford At Oxford's Private and Commercial Law Discussion Group, Donal Nolan presents The Distinctiveness of Rylands v Fletcher. Vexler on Berlin's Failure to Ground LIberalism at Oxford At Oxford's Ockham Society, Vladislav Vexler (Oxford) presents Why Isiah Berlin Failed to Ground Liberalism. Vandall on Casino Liability for the Social Costs of Gambling Frank J. Vandall (Emory University - School of Law) has posted Winning At Craps: Are Casinos Vulnerable To State Suits For Social Costs? – A Preliminary Analysis (Managerial and Decision Economics, 2003) on SSRN. Here is the abstract:
Zick on Constitutional Empiricism Timothy Zick (St. John's University - School of Law) has posted Constitutional Empiricism: Quasi-Neutral Principles and Constitutional Truths (North Carolina Law Review, Vol. 82, December 2003) on SSRN. Here is the abstract:
Field on Judicial Review of Copyright Examination Thomas G. Field Jr. (Franklin Pierce Law Center) has uploaded Judicial Review of Copyright Examination to SSRN. Here is the abstract:
Gilson versus Lipton and Rowe Martin Lipton and Paul K. Rowe (Wachtell, Lipton, Rosen & Katz and Wachtell, Lipton, Rosen & Katz) have posted Pills, Polls, and Professors: A Reply to Professor Gilson (The Delaware Journal of Corporate Law, Vol. 27, No. 1, pp. 1-55, 2002). Here is the abstract:
Garvey on Mercy and Atonement in Death Penalty Commutations Stephen P. Garvey (Cornell Law School) has posted Is it Wrong to Commute Death Row? Retribution, Atonement and Mercy (North Carolina Law Review, Vol. 82) on SSRN. Here is the abstract:
Beale on Corporate Tax Shelters Linda M. Beale (Illinois) has posted Putting SEC Heat on Audit Firms and Corporate Tax Shelters: Responding to Tax Risk with Sunshine, Shame and Strict Liability (Journal of Corporation Law, Vol. 29, 2004) on SSRN. Here is the abstract:
Monday, December 01, 2003
Conference Announcement: Equal Justice in the West at UNLV
Viet Dinh on the Padilla Case Randy Barnett points to this article in the Los Angeles Times, recounting the criticism that Viet Dinh (formerly the head of the Office of Legal Policy) has made in public of the incarceration of Jose Padilla. Kudos to Viet Dinh! Special Interest Groups & the Politics of Judicial Selection Byron York's The Hill piece on the Democratic memos on judicial selection has prompted a reply from Rick Hasen. Rick is right: there is nothing per se wrong with close collaboration between Senate Democratic Staffers and special interest groups regarding judicial appointments. If there is a problem here, it is the content of the interaction. This kind of lobbying is part of the increased politicization of the judicial selection process, and it is further evidence that respect for the rule of law and concern for judicial virtue is not high on the agenda of the Senate. O'Connor on Statutory Construction Gary O'Connor is the author of the fine blog, Statutory Construction Zone. Now he has an article posted on SSRN: Restatement (First) of Statutory Interpretation. Here is the abstract:
Weekend Update On Saturday, the Download of the Week was Matt Adler's new paper on fear and cost-benefit analysis. Also on Saturday, the Legal Theory Bookworm recommended Heidi Hurd's Moral Combat. On Sunday, the topic of the Legal Theory Lexicon was virtue ethics. Finally, the Legal Theory Calendar presented a roundup of talks, workshops, and conferences for this week. Schiff on Alterity at Chicago At the University of Chicago's Political Theory Workshop, Jacob Schiff (University of Chicago) presents Different Strokes: Mapping the Terrain of Alterity with discussant: Anne Holthoefer. Preuss on Comparative Constitutionalism at the University of Chicago At the University of Chicago's Law and Philosophy Workshop, Professor Ulrich Preuss, Freie Universität, Berlin and Visiting Professor, University of Chicago Law School, will present work on comparative constitutionalism. Grajzl & Murrell on Politicians at George Mason At George Mason's Philosophy, Politics and Economics series, Peter Grajzl & Peter Murrell (Economics/IRIS, University of Maryland Professions) present Politicans and Institutional Reforms. Nagin-Brown on Brown v. Board at Northwestern At Northwestern's Colloquium on the Legal and Constitutional History of the United States, Tomiko Nagin-Brown (Washington University, St. Louis, School of Law/History) presents Middle class African-Americans' views of desegregation in the era of Brown v. Board of Education. Hurd & Moore on Hate Crimes Michael Moore & Heidi M. Hurd (University of Illinois at Urbana-Champaign - College of Law) has posted Punishing Hatred and Prejudice on SSRN. Here is the abstract:
Baldwin on Right Regulation Robert Baldwin (University of London - Department of Law) has posted Is Regulation Right? on SSRN. Here is the abstract:
Klarman on the History of Race and Rights Michael J. Klarman (University of Virginia School of Law) has posted Race and Rights, 1920-2000 on SSRN. Here is the abstract:
Steinberg on Short Form Mergers in Delaware Marc Steinberg (Southern Methodist School of Law) has posted Short-Form Mergers in Delaware (The Delaware Journal of Corporate Law, Vol. 27, No. 2, pp. 489-504, 2002) to SSRN. Here is the abstract:
Harcourt on Racial Profiling Bernard E. Harcourt (University of Chicago - Law School) has uploaded Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature, and of Criminal Profiling More Generally (The University of Chicago Law Review, Vol. 71, Fall 2004) to SSRN. Here is the abstract:
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