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. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? (Eric Muller) --Law & Society Weblog (Group Blog) --The Leiter Reports (Brian Leiter) --Lessig Blog (Lawrence Lessig) --Marstonalia (Brett Marston) --Paper Chase @ Jurist (Bernard Hibbitts) --Political Arguments (Group Blog) --ProfessorBainbridge.com (Stephen Bainbridge) --Pea Soup (Group Blog) --Punishment Theory (Group Blog) --The Right Coast (Group Blog) --SCOTUS Blog (Group Blog) --Sentencing Law and Policy (Douglas Berman --Statutory Construction Zone (Gary O'Connor) --TaxProf Blog (Paul Caron) --Volokh Conspiracy (Group Blog) Websites of Interest +Arts and Letters Daily +Conference Alerts +Daily Whirl +fa.philos-l +Economic Theory News +Encyclopedia of Law and Economics +Jurisprudence and Social Policy Program (U.C. Berkeley) eScholarship Repository +Law and Politics Book Reviews +Metapsychology Book Reviews +Notre Dame Philosophical Review +Online Papers in Philosophy +PoliticalTheory.info +SSRN Most Recent Uploads More Blogs of Interest --Althouse (Ann Althouse) --Asymmetrical Information (Jane Galt) --bIPlog (Group Blog) --The Blawg Review (Group Blog) --Brad DeLong --The Buck Stops Here (Stuart Buck) --Copyfight (Group Blog) --A Copyfighter's Musings (Derek Slater) --The Curmudgeonly Clerk --Daniel Drezner --Discriminations (John and Jessie Rosenberg) --Eastmania (Wayne Eastman) --EveTushnet.com (Eve Tushnet) --Freespace (Timothy Sandefur) --Furdlog Frank Field --Ideoblog (Larry Ribstein) --The Importance Of (Ernest Miller) --The Indiana Law Blog (Marcia J. Oddi) --Infothought (Seth Finkelstein) --IPKat (Jeremy Phillips and Ilanah Simon) --Law and Economics Blog (Greg Goelzhauser) --Law Dork (Chris Geidner) --Law Meme (Group Blog) --Lee Blog Edward Lee --Legal Ramblings (Steven Wu) --Lenz Blog (Karl-Friedrich Lenz) --Letters of Marque (Heidi Bond) --The Light of Reason (Arthur Silber) --Matthew Yglesias --philosophy.com (Gary Sauer-Thompson ) --Public Defender Dude --Rodger A. Payne's Blog --Southern Appeal (Group Blog) --Strange Doctrines/A> --Susan Crawford blog --A Taxing Blog (Group Blog) --That's News to Me (Group Blog) --Thoughts Arguments and Rants (Brian Weatherson) --Three Years of Hell to Become the Devil --The Trademark Blog (Martin Schwimmer) --Troppo Armadillo (Ken Parish) --Technology 360 --Tutissima Cassis (Nate Oman) --Unlearned Hand --Weatherall's Law (Kim Weatherall) --WENDY.SELTZER.ORG (Wendy Seltzer) --yin (Tung Yin) Legal Theory Programs & Websites --Arizona State Committee on Law and Philosophy --Cambridge Forum for Legal and Political Philosophy --Columbia Law School Center for Law and Philosophy --Columbia Legal Theory Workhsop --Georgetown University Law Center--Colloquium on Constitutional Law and Theory --Jurisprudence and Social Policy Program (U.C. Berkeley) --Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley) --NYU Colloquium in Legal, Political and Social Philosophy --Oxford Jurisprudence Discussion Group --Oxford Legal Philosophy --Oxford Centre for Ethics & Philosophy of Law --Queen's University Belfast Forlum for Law and Philosophy --Rutgers Institute for Law and Philosophy --UCLA Legal Theory Workshop --University of Pennsylvania Institute for Law and Philosophy --University College London: Colloquium in Legal and Social Philosophy --University of Chicago Law And Philosophy Workshops --University of Chicago: John M. Olin Program in Law and Economics Workshop --University of San Diego Institute for Law and Philosophy --University of Texas Law and Philosophy Program --Yale Law School: Legal Theory Workshop Links to Law School Workshops +Australian National University Faculty Events +Boston University +Buffalo +Columbia Center for Law and Economic Studies +Florida State +Fordham +George Mason +George Washington--IP Workshop Series +Georgetown Colloquium on Intellectual Property & Technology Law +Georgetown Law Workshops +Georgetown Law and Economics Workshop +Georgetown Law & Economics Workshop Series +Hofstra +University of Illinois +Lewis & Clark +Loyola Marymount +New York University +NYU Legal History Colloquium +Northwestern Law Colloquium +Oxford Law Events +Rutgers, Camden +Stanford Center for Internet & Society +Stanford Law School Olin Series +UCLA Colloquium +UCLA Legal History Workshop +UCLA Tax Policy --University of Chicago: John M. Olin Program in Law and Economics Workshop +University of Michigan Law and Economics +University of San Diego Colloquium Series +University of Texas Colloquium Series +Vanderbilt Scholarly Programs & Events Calendar +Villanova +Washington & Lee Faculty Workshops +Yale Law, Economics & Organizations Workshop Calendars & Events +Aristotelian Society +British Society for Ethical Theory +Conference Alerts +Events in Analytic Philosophy in Europe (and Overseas Countries) +The Philosophical Calendar +Philosophy Now Calendar +Political Science Online Upcoming Conferences +SSRN Professional Announcements Other Programs --Australian National University, Research School of Social Science, Philosophy Seminars --Boston University Philosophy Colloquia --Brown University Philosoophy Upcoming Events George Mason Workshop in Philosophy, Politics, and Economics --Harvard University, Philosophy Colloquia --MIT Philosophy Colloquia --New York University, Philosophy Events --Oxford: Events at the Faculty of Philosophy --Princeton University: Philosophy Department Talks --Princeton University: Political Philosophy Colloquium --Princeton University: Public Law Colloquium --Princeton University: Seminar in Law and Public Affairs --Tulane Philosophy and Center for Ethics & Public Affairs Seminars --University College, London: Political Theory Seminars --University of Arizona Philosophy Colloquia --University of Bristol Philosophy Research Seminars --University of California at Berkeley Philosophy Events --University of California at San Diego Philosophy Colloquia --University of Chicago Political Theory Workshop --University of London, School of Advanced Study, Philosophy Programme --University of Manchester Politics & Philosophy Research Seminars --University of Melbourne Philosophy Events --University of North Carolina: Philosophy Speakers --University of Pennsylvania: Philosophy Colloquiua --University of Pittsburgh Philosophy Calendar --Yale Philosophy Department Talks Some Legal Theorist Homepages --Robert Alexy (Christian Albrechts University Kiel) --Randy Barnett (BU) --Brian Bix (Minnesota) --Jules Coleman(Yale Law & Philosophy) --Ronald Dworkin(NYU & University College) --John Finnis(Oxford and Notre Dame) --John Gardner (Oxford) --Brian Leiter (Texas) --Micahel Moore (Illinois) --Dennis Patterson (Rutgers, Camden) --Stephen Perry (NYU) --Richard Posner (University of Chicago & USCA7) --Joseph Raz (Oxford and Columbia) --Jeremy Waldron (Columbia More to come! Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Saturday, July 31, 2004
Legal Theory Bookworm This week, I have a list of contemporary "classic" titles on utilitarianism & consequentialism:
Download of the Week This week, the Download of the Week is Should We Value Legislative Integrity? by Andrei Marmor. Here's the abstract:
Friday, July 30, 2004
Posner & Sykes on Optimal War Eric Posner & Alan Sykes have posted Optimal War and Jus Ad Bellum on SSRN. Here is the abstract:
Guadamuz on the Technology Transfer Andres Guadamuz has posted The Future of Technology Transfer in the Global Village (Journal of World Intellectual Property, Vol. 3, No. 4, pp. 589-602, 2000) on SSRN. Here is the abstract:
Harris on Innocence Seth D. Harris (New York Law School) has posted Innocence and The Sopranos (New York Law School Law Review Vol. 49) on SSRN. Here is the abstract:
Tan on Finnis Seow Hon Tan (National University of Singapore) has posted Justification in Finnis' Natural Law Theory (Singapore Journal of Legal Studies, Forthcoming) on SSRN. Here is the abstract:
Hor on Corroboration Michael Hor (National University of Singapore - Faculty of Law) has posted Corroboration: Rules and Discretion in the Search for Truth (Singapore Journal of Legal Studies, pp. 509-542, 2000) on SSRN. Here is the abstract:
Thursday, July 29, 2004
Early Modern Philosophy Texts on the Web Jonathan Bennett has launched a new website (www.earlymoderntexts.com) containing versions of some classics of early modern philosophy, prepared with a view to making them easier to read while leaving the main arguments, doctrines, and lines of thought intact. He writes:
Two By Marmor Andrei Marmor has two new papers on SSRN:
Kerr on the Fourth Amendment & New Technologies Owen Kerr has posted The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution on SSRN. Here is the abstract:
More from Barnett on the Moral Foundations of Libertarianism Randy Barnett has a post entitled More on the Moral Foundations of Libertarianism on the Volokh Conspiracy. He concludes, "separating the political (how society should be structured) from the moral (how people should live their lives) is not to deny existence or importance of the moral." And for more on this, see Will Wilkinson's Understanding Political Libertarianism. Litigation Blogs Gail Diane Cox of the National Law Journal has a piece entitled Blogs Dot the Litigation Landscape: Lawyers using Web logs must be mindful of pitfalls on Law.com. Here's a taste:
Lemley & Shapiro on Probabilistic Patents Mark A. Lemley and Carl Shapiro (Stanford University - School of Law and University of California, Berkeley - Economic Analysis & Policy Group) have posted Probabilistic Patents on SSRN. Here is the abstract:
Rai on Biotechnology Research, Proprietary Rights, and Collective Action Arti K. Rai (Duke University School of Law) has posted Proprietary Rights and Collective Action: The Case of Biotechnology Research with Low Commercial Value (INTERNATIONAL PUBLIC GOODS AND TRANSFER OF TECHNOLOGY UNDER THE GLOBALIZED INTELLECTUAL PROPERTY REGIME, Jerome Reichman, Keith Maskus, eds., 2004) on SSRN. Here is the abstract:
Lillquist & Sullivan on the Law & Genetics of Racial Profiling in Medicine R. Erik Lillquist and Charles A. Sullivan (Seton Hall Law School and Seton Hall University - School of Law) have posted The Law and Genetics of Racial Profiling in Medicine (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 39, No. 391, 2004) on SSRN. Here is the abstract:
Koenig & Rustad on Environmental Crimtorts Thomas Koenig and Michael L. Rustad (Northeastern University - School of Law and Suffolk University - School of Law) have posted Toxic Torts, Politics, and Environmental Justice: The Case for Crimtorts (Law & Policy, Vol. 26, pp. 189-207, April 2004) on SSRN. Here is the abstract:
Jaisingh on Recording Company Strategies & Filesharing Jeevan Jaisingh (Hong Kong University of Science & Technology) has posted Piracy on File Sharing Networks: Strategies for Recording Companies on SSRN. Here is the abstract:
Wednesday, July 28, 2004
Leiter on Marx & CLS Brian Leiter has an excellent post on the relationship between Marxism and the Critical Legal Studies movement. Here's a taste:
Balkin on a Progressive Constitution Check out this post by Jack Balkin. Here's a taste:
Issacharoff & Karlan on Political Gerrymandering Samuel Issacharoff and Pamela S. Karlan (Columbia Law School and Stanford Law School) have posted Where to Draw the Line?: Vieth v. Jubelirer, Cox v. Larios, and Judicial Review of Political Gerrymanders (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
McCann on Consumer Choice Theory in Nutritional Labeling Michael A. McCann (Harvard University - Harvard Law School) has posted Economic Efficiency and Consumer Choice Theory in Nutritional Labeling (Wisconsin Law Review, November 2004) on SSRN. Here is the abstract:
Harris on the East India Company as a Deal Ron Harris (University of California, Berkeley - School of Law (Boalt Hall)) has postedThe Formation of the East India Company as a Deal between Entrepreneurs and Outside Investors on SSRN. Here is the abstract:
Hayden on One Person One Vote Grant M. Hayden (Hofstra University - School of Law) has posted The False Promise of One Person, One Vote (Michigan Law Review, Vol. 102, p. 213, 2003) on SSRN. Here is the abstract:
Tuesday, July 27, 2004
McCaffery & Baron Think About Tax Edward J. McCaffery and Jonathan Baron (University of Southern California Law School and University of Pennsylvania - Department of Psychology) have posted Thinking about Tax on SSRN. Here is the abstract:
Horwitz on Grutter Paul Horwitz (University of San Diego - School of Law and Southwestern University School of Law) has posted Grutter's First Amendment on SSRN. Here is the abstract:
Conference Announcement: Impact of the Presidential Elections
New from Law and Politics Book Review
THE RULE OF LAW IN AMERICA, by Ronald A. Cass. Baltimore: Johns Hopkins University Press, 214 pp. 2003, Paper. $19.95. ISBN:0-8018-7441-6. 2001, Cloth $32.50. ISBN 0-8018-6728-2. Reviewed by John Brigham. TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM, by Ran Hirschl. Cambridge: Harvard University Press, 2004. 294pp. Cloth $49.95. ISBN: 0-674-01264-X. Reviewed by Mark Rush. DIRECTIONS IN SEXUAL HARASSMENT LAW, by Catharine A. MacKinnon and Reva B. Siegel(eds.). New Haven: Yale University Press, 2003. 752pp. Cloth. $50.00. ISBN: 0-300-09800-6. Reviewed by Kathleen S. Sullivan. Monday, July 26, 2004
Stout on the Nature of the Corporation Lynn A. Stout (University of California, Los Angeles - School of Law) has posted On the Nature of Corporations on SSRN. Here is the abstract:
Brady on the Lessons of Smith Kathleen Brady (Villanova University - School of Law) has posted Religious Organizations and Free Exercise: The Surprising Lessons of Smith (Brigham Young University Law Review, Forthcoming) on SSRN. Here is the abstract:
Wilkins on Diversity David B. Wilkins (Harvard University - Harvard Law School) has posted From 'Separate is Inherently Unequal' to 'Diversity is Good for Business': The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar (Harvard Law Review, Vol. 117, No. 5, March 2004) on SSRN. Here is the abstract:
Spindelman on Lawrence v. Texas Marc Spindelman (Ohio State University - Michael E. Moritz College of Law) has posted Sodomy Politics in Lawrence v. Texas (Jurist, June 12, 2003) on SSRN. Here is the abstract:
Sunday, July 25, 2004
Ethical Internalism Check out A Problem for Ethical Internalism by Uriah Kriegel on Desert Landscapes. Here's a taste:
Saturday, July 24, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Objectivity in Law and Morals edited by Brian Leiter. Here's the blurb:
Download of the Week This week, the Download of the Week is Barnett and the Constitution We Have Lost (forthcoming University of San Diego Law Review) on SSRN by Stephen M. Griffin (Tulane). Here is the abstract:
Friday, July 23, 2004
Trachtman on Cyberterrorism Joel P. Trachtman (Tufts University - The Fletcher School) has posted Global Cyberterrorism, Jurisdiction, and International Organization on SSRN. Here is the abstract:
Josephs on Apology in International and Comparative Law Hilary K. Josephs (Syracuse University College of Law) has posted The Remedy of Apology in Comparative and International Law: Self-Healing and Reconciliation (Emory International Law Review Emory International Law Review, Vol. 18, 2004, pages 53-84) on SSRN. Here is the abstract:
Call for Papers: Social Justice in a Changing World
Call for Papers: Journal of Social Philosophy
Call for Papers: Liberalism, Feminism and Multiculturalism
Conference Announcement: The Practice of Law-making and the Problem of Difference
Call for Papers: Ratio Juris
Call for Papers: Pluralism: Exploring Critical Issues
Conference Announcement: The 2004 Election: What Does it Mean for Campaigns and Governance?
http://lawweb.usc.edu/cslp/conferences/Election_04/election_04.html Schedule:
Thursday, July 22, 2004
Barnett on the Moral Foundations of Libertarianism Randy E. Barnett (Boston University) has posted The Moral Foundations of Modern Libertarianism on SSRN. Here is the abstract:
Shah & Kesan on the Role of Institutions in Shaping Communications Technology Development 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) have posted Recipes for Cookies: The Role of Institutions in Shaping the Development of Communication Technologies on SSRN. Here is the abstract:
Garnett on the State's Interest in the Development of Religious Doctrine Richard W. Garnett (University of Notre Dame - Law School) has posted Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine (UCLA Law Review, Vol. 51, No. 1, 2004) on SSRN. Here is the abstract:
Liu on Regulatory Copyright Joseph P. Liu (Boston College - Law School) has posted Regulatory Copyright (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
Vanneste et al on Commons & Anticommons Sven Vanneste , Alain Van Hiel , Francesco Parisi and Ben Depoorter (Universiteit Gent , Universiteit Gent , George Mason University School of Law and Yale University - Law School) have posted From 'Tragedy' to 'Disaster': Welfare Effects of Commons and Anticommons Dilemmas on SSSR. Here is the abstract:
Goldberg on Tort Law for Federalists John C.P. Goldberg (Vanderbilt University - School of Law) has posted Tort Law for Federalists (and the Rest of Us): Private Law in Disguise (Harvard Journal of Law & Public Policy, Vol. 28, 2004) on SSRN. Here is the abstract:
Sanchirico & Triantis on the Verifiability of Contract Performance & the Fabrication of Evidence Chris William Sanchirico and George G. Triantis (University of Pennsylvania - Law School & Wharton School and University of Virginia School of Law) have posted Evidentiary Arbitrage: The Fabrication of Evidence and the Verifiability of Contract Performance on SSRN. Here is the abstract:
Moore on Worthless Patents Kimberly A. Moore (George Mason University School of Law) has posted Worthless Patents on SSRN. Here is the abstract:
Conference Announcement: Particularism
Jonathan Dancy, the main proponent of moral particularism, has confirmed his participation at the conference. So a symposium on his work, including his just published book Ethics Without Principles (Oxford University Press, 2004) is one obvious topics; review of particularist criticism and the promise of positive particularism are another. An additional aim of this conference is assessing the prospect of extending particularist approach to other areas, such as aesthetics, epistemology and even metaphysics. Those interested to participate should send the title of their contribution with a longer abstract (1000-1500 words) till November 1st, 2004. They will receive the notice of acceptance by December 1st, 2004. Bled conferences do not possess any financial means, so we would kindly ask you to request financing from your own institution in the case you would be interested to attend. For more info see http://www.daf-drustvo.si/bled.html. Best wishes, Matjaz Potrc and Vojko Strahovnik. Wednesday, July 21, 2004
Blakely News & the Blogosphere Over at Sentencing Law & Policy, Doug Berman has the latest Blakely news, including links to the Solicitor General's filings! Chris Geidner has a very nice comment on the role that blogs have played in the post-Blakely fall out:
Baude on Blakely Check out Will Baude of Crescat Sententia who has a column titled Pro Circuit on the New Republic Online. Here's a taste:
Griffin Reviews Barnett Stephen M. Griffin (Tulane) has posted Barnett and the Constitution We Have Lost (forthcoming University of San Diego Law Review) on SSRN. Here is the abstract:
Cueller on Sovereignty & Collective Security Mariano-Florentino Cuellar (Stanford) has posted Reflections on Sovereignty and Collective Security (Stanford Jounral of International Law, Vol. 40, No. 211, 2004) on SSRN. Here is the abstract:
Bibas & Bierschbach on Remorse and Apology in Criminal Procedure Stephanos Bibas and Richard Bierschbach (University of Iowa - College of Law and Yeshiva University - Benjamin N Cardozo School of Law) have posted Integrating Remorse and Apology into Criminal Procedure (Yale Law Journal, Vol. 114, No. 1, 2004) on SSRN. Here is the abstract:
Gregg on Catholic Moral Theology and the Market Samuel Gregg (Acton Institute for the Study of Religion and Liberty) has posted Ethics and the Market Economy: Insights from Catholic Moral Theology (Economic Affairs, Vol. 24, pp. 4-10, June 2004) on SSRN. Here is the abstract:
Richman on a Positive Theory of Private Ordering Barak D. Richman (Duke University - School of Law) has posted Firms, Courts, and Reputation Mechanisms: Towards a Positive Theory of Private Ordering (Columbia Law Review, Vol. 104, No.8, 2004) on SSRN. Here is the abstract:
Virtual Free Speech, or Is That Free Virtual Speech? Peter S. Jenkins has posted The Virtual World as a Company Town - Freedom of Speech in Massively Multiple Online Role Playing Games (Journal of Internet Law, Vol. 8, No. 1, July 2004) on SSRN. Here is the abstract:
More on the Virtual Worlds, Crime This Time F. Gregory Lastowka and Dan Hunter have another article on virtual worlds, this one is called Virtual Crime (New York Law School Law Review, Forthcoming). Here is the abstract:
Moore on Xenophobia in American Courts Kimberly A. Moore (George Mason University School of Law) has posted Xenophobia in American Courts (Northwestern University Law Review, Vol. 97, 2003) on SSRN. Here is the abstract:
Mahoney and Sanchirico on General and Specific Legal Rules Paul G. Mahoney and Chris William Sanchirico (University of Virginia School of Law and University of Pennsylvania - Law School & Wharton School) have posted General and Specific Legal Rules on SSRN. Here is the abstract:
Cotterrell on Law in Culture Roger Cotterrell (University of London - Centre for Commercial Law Studies) has posted Law in Culture (Ratio Juris, Vol. 17, pp. 1-14, March 2004) on SSRN. Here is the abstract:
Tuesday, July 20, 2004
More Blakely News Doug Berman has more Blakely news, including a report of a District Court opinion that argues that the implications of Blakely require invalidation of the entire federal sentencing guidelines scheme. Surf here. Welcome to the Blogosphere . . . to The Garden of Forking Paths, a philosophy blog on free will and moral responsibility. Contributors include: Andrei Buckareff, Andrew Eshleman, Carl Ginet, Daniel Speak, Eddy Nahmias, Eleonore Stump, Gary Watson, Gustavo Llarull, Hilary Bok, Ish Haji, Jing Zhu, John Martin Fischer, John McAteer, Jonathan Kvanvig, Manuel Vargas, Michael McKenna, Neal Tognazzini, Neil Levy, Paul Russell, Randolph Clarke, Rico Vitz, Saul Smilansky, and Tim O'Connor. Posner on Law and Economics in Historical and Comparative Perspective Richard A. Posner has posted Law and Economics in Common-Law, Civil-Law, and Developing Nations (Ratio Juris, Vol. 17, pp. 66-79, March 2004) on SSRN. Here is the abstract:
Lafont on Realism & Constructivism Cristina Lafont (Northwestern University) has posted Moral Objectivity and Reasonable Agreement: Can Realism Be Reconciled with Kantian Constructivism? (Ratio Juris, Vol. 17, pp. 27-51, March 2004) on SSRN. Here is the abstract:
Hage on Law and Coherence Jaap Hage (University of Maastricht (formerly University of Limburg) - Faculty of Law) has posted Law and Coherence (Ratio Juris, Vol. 17, pp. 87-105, March 2004) on SSRN. Here is the abstract:
Prakken & Sartor on Defeasibility Henry Prakken and Giovanni Sartor (University of Utrecht and University of Bologna) have posted The Three Faces of Defeasibility in the Law (Ratio Juris, Vol. 17, pp. 118-139, March 2004) on SSRN. Here is the abstract:
Monday, July 19, 2004
Hiring Trends at 18 "Top" American Law Schools
The law schools covered by Leiter's data are: Columbia, Cornell, Duke, Georgetown, Harvard, NYU, Northwestern, Stanford, UC Berkeley, UCLA, University of Chicago, University of Michigan, University of Pennsylvania, University of Southern California, University of Texas, University of Virginia, Vanderbilt and Yale. These schools added approximately 183 faculty members during the 2000-01 through 2004-05 period that Leiter studied. I have not attempted to replicate Leiter's survey of entry-level and lateral hires. There is some fuzziness in this data, resulting from the uncertain status of some joint appointments and some part-time appointments. My raw data can be inspected in a post entitled Supporting Information re New Faculty at Major American Law Schools, posted at the Legal Theory Annex. JD Institution Which JD institutions produced the 176 (or so) individuals hired during the 5 year period at the 18 law schools that Leiter studied? Unsurprisingly, Yale, Harvard, and Stanford placed the greatest numbers of JD graduates at these schools. The following pie chart breaks placement down by school, with a residual category for law schools that placed only 1 student and categories for foreign first degrees in law and for individuals with no law degree:  If we remove those without JDs or with non-US first-law degrees from the data, the domination of Yale, Harvard, and Stanford becomes even clearer:  I am not quite sure what to think about this data. I suspect that this intense concentration of placement in a handful of institutions is somewhat atypical among academic disciplines. Althouigh a few strong PhD programs may dominate some other fields, my informed intuition suggests that in economics, philosophy, and history, one would need to go considerably beyond the top two programs to account for one-half the hiring at the equivalent of the Leiter's 18 top law schools. Advanced Doctorates Folk wisdom among law professors is that the hiring of elite institutions is dominated by candidates with PhDs. The data that I collected suggest that there is a foundation for this perception, but that the majority of faculty members hired by the 18 law schools during hte five-year period did not have a doctoral degree other than the JD:  This chart includes advanced doctoral degrees in law (e.g. the SJD, LLD, and D. Juris.). Another way to look at the data is to compare the percentage of candidates who had exclusively legal training with candidates who had a doctoral degree (PhD, MD, etc.) from another discipline:  Almost 2/3rds of those hired by the eighteen schools in the five year period were trained exclusively in law. To look at the same glass half-full, fully one-third of those hired did have an advanced doctoral degree from a discipline other than law. Which disciplines are non-law doctoral degrees from? Economics, political science, philosophy, and history PhDs clearly dominate:  Disparities in Interdisciplinary/Non-JD-Doctoral Hiring One of the interesting aspects of Leiter's data is that it reveals that the hiring from other disciplines and hiring of candidates with non-JD doctoral degrees varies widely among the 18 schools. The next chart provides the total number of hires and the number of non-JD doctoral hires for each of the eighteen schools:  The differences can be seen more clearly if the number of non-JD doctoral hires is expressed as a percentage of the total number of hires. The following chart lists the percentage of hires with a non-JD doctorate in ascending order:  Of the 79 individuals with doctoral degrees hired during the five year period, 59 were hired by nine schools (Penn, USC, Northwestern, Stanford, Michigan, Columbia, Yale, Texas, and Virginia), while the remaining nine schools hired only 20. 89% of Penn's hires had non-JD doctorates, while only 13% of Georgetown's hires had such degrees. Conclusion The legal academy has changed enormously over the course of the last thirty years, with a marked decline of the "Trade School" model and a rise in scholarship and interdisciplinary approaches to law. Nonetheless, the data indicate that traditional hiring practices continue to guide the majority of law-school hiring. Most of those who are hired by Leiter's elite eighteen have a JD but no other doctorate and are graduates of Yale, Harvard, and Stanford. Leiter has brief comments here. Conference Announcement: Principles & Practices of Subsidiarity
Peczenik on the Utility of Philosophy for Legal Doctrine Aleksander Peczenik (Lund University - Faculty of Law) has posted Can Philosophy Help Legal Doctrine? (Ratio Juris, Vol. 17, pp. 106-117, March 2004) on SSRN. Here is the abstract:
Pettit on Democracy Philip N. Pettit (Princeton University - Department of Politics) has posted Depoliticizing Democracy (Ratio Juris, Vol. 17, pp. 52-65, March 2004) on SSRN. Here is the abstract:
Strnad on the Fat Tax Jeff Strnad (Stanford University Law School) has posted Conceptualizing the Fat Tax: The Role of Food Taxes in Developed Economies on SSRN. Here is the abstract:
Dahlman on Normative and Descriptive Legal Propositions Christian Dahlman (Lund University - Faculty of Law) has posted Fused Modality or Confused Modality? (Ratio Juris, Vol. 17, pp. 80-86, March 2004) on SSRN. Here is the abstract:
Vick on Interdisciplinarity & Law Douglas W. Vick (University of Stirling - Department of Accounting, Finance & Law) has posted Interdisciplinarity and the Discipline of Law (Journal of Law and Society, Vol. 31, pp. 163-193, June 2004) on SSRN. Here is the abstract:
Saturday, July 17, 2004
Legal Theory Bookworm The recommendation this week is Legitimation Crisis by Jurgen Habermas, a classic work on legitimation and ideology. Habermas's work is frequently rough going, but this is one of his most accessible (and shortest) books. Highly recommended! Download of the Week This week, the Download of the Week is The New Formalism: Requiem for Tiered Scrutiny? by Calvin Massey. Here is the abstract:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:
Friday, July 16, 2004
Sargent on Catholic Visions of the Corporation Mark Sargent (Villanova Law School) has posted Competing Visions of the Corporation in Catholic Social Thought (Journal of Catholic Social Thought, Forthcoming) on SSRN. Here is the abstract:
Clark on Unitary Judicial Review Bradford R. Clark (George Washington Law School) has posted Unitary Judicial Review (George Washington Law Review, Vol. 72, 2004) on SSRN. Here is the abstract:
Polinsky on Strict Liability versus Negligence A. Mitchell Polinsky (Stanford Law School) has posted Strict Liability versus Negligence in a Market Setting on SSRN. Here here is the abstract:
Dogan & Lemley on Trademark Stacey L. Dogan and Mark A. Lemley (Northeastern University School of Law and Stanford University - School of Law) have posted Trademarks and Consumer Search Costs on the Internet on SSRN. Here is the abstract:
Thursday, July 15, 2004
Kang on Insincerity John Kang (University of Michigan, Political Science) has posted The Case for Insincerity on SSRN. Here is the abstract:
New from Law & Politics Book Review
FAMILIES BY LAW: AN ADOPTION READER, by Naomi Cahn and Joan Heifetz Hollinger (eds.). New York: New York University Press, 2004. 282pp. Cloth US$ 70.00. ISBN: 0814715893. Paperback. US$ 24. ISBN: 0814715907. Reviewed by Francis Regan. WATCHING JIM CROW: THE STRUGGLES OVER MISSISSIPPI TV, 1955-1969 by Steven D. Classen. Durham, NC: Duke University Press, 2004. 288pp. Cloth $74.95. ISBN 0-8223-3329-5. Paper. $21.95. ISBN 0-8223-3341-4. Reviewed by James C. Foster. BROWN v. BOARD OF EDUCATION: CASTE, CULTURE, AND THE CONSTITUTION, by Robert J. Cottrol, Raymond T. Diamond, and Leland B. Ware. Lawrence: the University Press of Kansas, 2003. 304 pp. Cloth $25.00. ISBN: 0-7006-1288-2. Paper $15.95. ISBN: 0-7006-1289-0. Reviewed by Daniel Lipson. Criminal Justice and Political Cultures: National and International Dimensions of Crime Control, by Tim Newburn and Richard Sparks (eds.). Cullompton, UK: Willan Publishing, 2004. 256pp. Hardback. £45.00 / US $59.95. ISBN: 1-84392-026-3. Paperback. £18.99 / US $29.95. ISBN: 1-84392-054-9. Reviewed by Mathieu Deflem. TOURNAMENT OF APPEALS: GRANTING JUDICIAL REVIEW IN CANADA by Roy B. Flemming. Vancouver, B.C.: UBC Press, 2004. 144pp. Cloth US$ 80.00 / CDN$ 109.69. ISBN: 0-7748-1082-3. Reviewed by Richard A. Brisbin, Jr. INSIDE THE PENTAGON PAPERS, by John Prados and Margaret Pratt Porter (eds.). Lawrence: University Press of Kansas, 2004. 272pp. Hardcover. $29.95. ISBN: 0-7006-1325-0. Reviewed by Daniel N. Hoffman. Wednesday, July 14, 2004
Entry Level Hiring (Update #33, Last Updated on August 20, 2004, with 67 schools reporting) Recently Blogger (the back end for Blogspot) has been refusing to generate an archive file for June 2004. This has resulted in the unavailability of the post on entry level hiring. In order to make the post available, I am republishing it today, with some very minor corrections & changes. Here are some interesting numbers:
 
Adam Chodorow (JD Virginia & LLM NYU) Linda Demaine (JD Arizona & PhD Psychology Arizona State) Aaron Fellmeth (JD Yale) Sandeep Gopalan (JD National Law School of India & DPhil Law Oxford) Orde Kittrie (JD Michigan)
Donald Kochan (JD Cornell) Francine Lipman (JD UC Davis & LLM NYU)
Michael Scodro (JD Yale Law) Carolyn Shapiro (JD Chicago JD)
Bernadette Meyler (JD Stanford & PhD English UC Irvine)
Neil Siegel (JD & PhD Berkeley)
Michael Kang (JD Chicago & PhD Government Harvard) Julie Seaman (JD Harvard)
Heather Lauren Hughes (JD Harvard) Andre L. Smith (JD Howard & LLM Georgetown) Carlton Mark Waterhouse (JD Howard & PhD Social Ethics Emory)
Curtis Bridgeman (JD & PhD Philosophy Vanderbilt) Jonathan Klick (JD & PhD Economics George Mason)
Amanda Tyler (J.D. Harvard)
Ethan Yale (JD Tulane & LLM NYU)
Lauren Willis (JD Stanford)
Stephanie M. Stern ( JD Yale)
Scott A. Moss (J.D. Harvard)
Noga Morag-Levine (LL.B. Hebrew; Ph.D. Jurisprudence and Social Policy, UC Berkeley)
David Stras (JD & MBA Kansas)
Jide Nzelibe (JD Yale)
John Oberdiek (JD & PhD Philosophy Penn)
Shavar Jeffries (JD Columbia) Frank Pasquale (JD Yale & MPhil Oxford Politics)
Nicole Porter (JD Michigan)
Terry Turnipseed (JD & LLM Georgetown)
David Hoffman (JD Harvard) Duncan Hollis (JD Boston College)
Aric Short (JD Texas)
Jennifer Chacon (JD Yale) Carlton Larson (JD Yale) Donna Shestowsky (JD Stanford & PhD Psychology Stanford)
Noah Zatz (JD Yale)
Clare Huntington (JD Columbia)
Erica Hashimoto (J.D. Georgetown)
David Law (JD Harvard & PhD Political Science Stanford) Lisa Ramsey (JD UCLA)
Josh Eagle (JD Georgetown) Joel Samuels (JD Michigan)
Melissa Waters (JD Yale)
Michael Dimino (J.D. Harvard)
Nancy Combs (JD Berkeley) Erin Ryan (JD Harvard)
John Radsan (JD Harvard) And JD students are also hired in other disciplines. For example, Wharton Legal Studies reports that they have hired Kevin Werbach (JD Harvard). Note: This list is for entry-level hires only. I have arbitrarily grouped first degrees in law as JDs, even though many non-US law schools award the LLB as the first law degree. Several readers have asked that I collect data on subject-matter areas, but my judgment is that this data is both too soft to be reliable and too difficult to collect. My thanks to everyone who has contributed information! Pildes on Conceptions of Democracy Richard H. Pildes (New York University School of Law) has posted Competitive, Deliberative, and Rights-Oriented Democracy (Election Law Journal, Forthcoming) on SSRN. Here is the abstract:
Bone on Trademark Puzzles Robert G. Bone (Boston University School of Law) has posted Enforcement Costs and Trademark Puzzles (Virginia Law Review, Forthcoming). Here is the abstract:
Scott & Triantis Make the Case Against Compensation in Contract Law Robert E. Scott and George G. Triantis (University of Virginia School of Law and University of Virginia School of Law) have posted Embedded Options and the Case Against Compensation in Contract Law (Columbia Law Review, Vol. 104, 2004) on SSRN. Here is the abstract:
Morgan on the Economisation of Politics Bronwen Morgan (University of Oxford - Centre for Socio-Legal Studies) has posted The Economisation of Politics: Metaregulation as a Form of Nonjudicial Legality (Social and Legal Studies, Vol. 12, No. 4, pp. 489-523, December 2003) on SSRN. Here is the abstract:
Bartow on Gender and Law School Ann Bartow (University of South Carolina - School of Law) has posted Still Not Behaving Like Gentlemen (Kansas Law Review, Vol. 49, p. 809, May 2001) on SSRN. Here is the abstract:
Tuesday, July 13, 2004
Just War Theroy If you are interested in just war theory, you will definitely want to check out JustWarTheory.com, maintained by Mark Rigstad, Assistant Professor of Philosophy at Oakland University. Yoo, Calabresi & Nee on the Unitary Executive Christopher S. Yoo , Steven G. Calabresi and Laurence Nee (Vanderbilt University - School of Law , Northwestern University - School of Law and Government of the United States of America - California Central District Court ) have posted The Unitary Executive During The Third Half-Century, 1889-1945 (Notre Dame Law Review, 2004) on SSRN. Here is the abstract:
Bar-Gill and Parchomovsky on Intellectual Property & the Boundaries of the Frim Oren Bar-Gill and Gideon Parchomovsky (The Society of Fellows, Harvard University; The John M. Olin Center for Law, Economics and Business, Harvard Law School and University of Pennsylvania Law School) have posted Intellectual Property Law and the Boundaries of the Firm. Here is the abstract:
Lund on the Rehnquist Court & Civil Rights Nelson Lund (George Mason University School of Law) has posted The Rehnquist Court's Pragmatic Approach to Civil Rights on SSRN. Here is the abstract:
Kontorovich on Universal Jurisdiction Eugene Kontorovich (George Mason University - School of Law) has posted A Positive Theory of Universal Jurisdiction (Notre Dame Law Review, Vol. 80, November 2004) on SSRN. Here is the abstract:
Gardner on Federalism & Positivsm James A. Gardner (State University of New York - University at Buffalo School of Law) has posted Whose Constitution Is It? Why Federalism and Constitutional Positivism Don't Mix on SSRN. Here is the abstract:
Monday, July 12, 2004
Blakely, the Sentencing Guidelines, and Certification to the United States Supreme Court In United States v. Penaranda (PDF here), the Second Circuit has certified the applicability of the Blakely decision to the federal sentencing guidelines to United States Supreme Court. Doug Berman is following these developments closely at Sentencing Law and Policy. Lawyers, law students, and even some constitutional law scholars may be unfamiliar with Section 1254(3) of Title 28 of the United States Code, which permits a United States Court of Appeal to certify questions to the United States Supreme Court. Here is the text of the provision:
2. The Court can accept certification and limit its consideration of the case to the questions certified. 3. The Court can take jurisdiction of the whole case. Rescheduling the Election Newsweek has a story titled Election Day Worries:
Update Comments from Rick Hasen, here, and Jack Balkin, here. Balkin's post has an especially nice discussion of the constitutional issues. Ted Olson on the Supreme Court Term Gina Holland has an interesting report on Solicitor General Ted Olson's critique of the just-ended Supreme Court term titled Olson's Parting Shots: Supreme Court Term Bad for Conservatives. Here's a taste:
Massey on Tiers & Formalism Calvin R. Massey (University of California, Hastings) has posted The New Formalism: Requiem for Tiered Scrutiny? on SSRN. Here is the abstract:
Polinsky on Nuisance Remedies A. Mitchell Polinsky (Stanford Law School) has posted Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies on SSRN. Here is the abstract:
Riles on the Cultural Study of Law and Technology Annelise Riles (Cornell University - School of Law) has posted Taking on Technology: A New Agenda for the Cultural Study of Law on SSRN. Here is the abstract:
Joyce and Patterson on the Founder's View of the Copyright Power Craig Joyce and L. Ray Patterson (University of Houston Law Center - Institute for Intellectual Property & Information Law and University of Houston Law Center (Deceased)) have posted Copyright in 1791: An Essay Concerning the Founders' View of the Copyright Power Granted to Congress in Article I, Section 8, Clause 8 of the US Constitution (Emory Law Journal, Vol. 52, No. 909, 2003). Here is the abstract:
Saturday, July 10, 2004
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Natural Law Theory: Contemporary Essays by Robert P. George (Princeton). Here's the blurb:
Download of the Week This week, the Download of the Week is Toleration and Liberal Commitments by Steven Douglas Smith (University of San Diego - School of Law). Smith is one of the most interesting writers on law and religion, and I always learn from him. Here is the abstract:
SSRN Top Recent Downloads As of this morning, SSRN's top download links were not working. Look for this feature again next Saturday. Friday, July 09, 2004
Posner Applies Blakely to the Federal Sentencing Guidelines Courtesy of Doug Berman at Sentencing Law and Policy, here is the opinion. I just finished reading Posner, who wrote on of his signature get-to-the-point, no-BS opinions. Well, we all new something like this was coming, and here it is! Law on Ideology and Publication in the Ninth Circuit David S Law (USD School of Law) has posted Strategic Judicial Lawmaking: An Empirical Investigation of Ideology and Publication on the U.S. Court of Appeals for the Ninth Circuit on SSRN. Here is the abstract:
Law on Generic Constitutional Law David S Law (USD School of Law) has posted Generic Constitutional Law on SSRN. Here is the abstract:
Ryskamp on Sunstein John Ryskamp has posted On Sunstein and the New Bill of Rights on SSRN. Here is the abstract:
Claeys on Zoning Eric Claeys (Saint Louis University - School of Law) has posted Euclid Lives? The Uneasy Legacy of Progressive Political Theory in Zoning (Fordham Law Review, Vol. 73, No. 2, November 2004) on SSRN. Here is the abstract:
Heise on Litigated Learning Michael Heise (Cornell Law School) has posted Litigated Learning and the Limits of Law (Vanderbilt Law Review, Vol. 57, 2004) on SSRN. Here is the abstract:
Thursday, July 08, 2004
Medema on Sidgwick and the Economic Analysis of Law Steven G. Medema has posted Sidgwick's Utilitarian Analysis of Law: A Bridge from Bentham to Becker?. Here is a taste:
Levy on Experimental Philosophy Neil Levy has posted Experimental Philosophy: A Critique. Here is a taste:
Feldman on Trade Secret Yuval Feldman (Faculty of Law, Bar-Ilan University (starting Fall 2004) and University of California, Berkeley - School of Law (Boalt Hall)) has posted The Behavioral Foundations of Trade Secrets: Tangibility, Authorship and Legality on SSRN. Here is the abstract:
Harman on Moral Particularism Gilbert Harman has posted Moral Particularism and Transduction. Here is a taste:
New on Law and Politics Book Review
Wednesday, July 07, 2004
Volokh & Bell on Treason Eugene Volokh has a nice post on treason, with a pointer to an article by Tom Bell entitled Treason, Technology, and Freedom of Expression. Here is a snippet from the conclusion of Bell's article:
Haack on Science and Advocacy Susan Haack (University of Miami) has posted Truth and Justice, Inquiry and Advocacy, Science and Law (Ratio Juris, Vol. 17, pp. 15-26, March 2004) on SSRN. Here is the abstract:
Kitrosser on the R.A.V. Problem Heidi Kitrosser (Brooklyn Law School) has posted Containing Unprotected Speech: Toward A New Understanding of the R.A.V. Problem on SSRN. Here is the abstract:
Brophy on Reparations Alfred L. Brophy (University of Alabama - School of Law) has posted The Cultural War Over Reparations for Slavery (DePaul Law Review, Vol. 53, pp. 1181-1213, 2004) on SSRN. Here is the abstract:
Call for Papers: Alternative Histories of Law & Legal Theory
Call for Papers: Maritain, Politics and the Ethical
Tuesday, July 06, 2004
Wentworth on the Induce Act Donna Wentworth has an informative post on the Induce Act titled Tech Companies Rally Against the Induce Act. Blakely News Blakely v. Washington was surely a landmark opinion, but it has been neglected in the wake of less procedural and splashier cases from last term. If you want to know more about this immensely important decision on the role of jury factfinding in the sentencing process, the place to to is Doug Berman's Sentenching Law and Policy. Here are some of the recent posts:Highly recommended! Another Review of the October 2003 Supreme Court Term Over at Law.com, there is yet another review of 03/04 term of the Supreme Court. Here's a taste:
Two by Hasen Election-law superbloger Rick Hasen has two new papers on SSRN:
Online Communities Eszter Hargittai has a really excellent post on online communities over at Crooked Timber, including a pointer to Community without Propinquity Revisited: Communications Technology and the Transformation of the Urban Public Sphere by Craig Calhoun. Yoo on Torture and the Law John Yoo has an op/ed in the Los Angeles Times entitled A Crucial Look at Torture Law. Here is a taste:
Boldrin & Levine on IP & the Scale of the Market Michele Boldrin and David K Levine have uploaded Intellectual Property and the Scale of the Market to Levine's Working Paper Archive. Here is a taste:
Barry on Redistribution Christian Barry has a new Stanford Encyclopedia of Philosophy entry entitled Redistribution:
Simpson Reviews Desert and Justice At Notre Dame Philosophical Revies, Peter Simpson has a Review of Serena Olsaretti's Desert and Justice. Here is a taste:
Medema on Sidgwick on Law Steven G. Medema has posted Sidgwick's Utilitarian Analysis of Law: A Bridge from Bentham to Becker?. Here's a taste:
Monday, July 05, 2004
New RSS Feed Courtesy of a tip by Ernie Miller, I have a new RSS feed. Link here and on the sidebar. I would appreciate feedback about functionality and reliability. Metaethics and Sentenching Do check out Kyron Huigens's post Sentencing, Metaethics, and Justice Breyer over at Punishment Theory. More Metaethics Over at Pea Soup, there is a marvelous series of three posts by Dan Boisvert on expressivism (as a position in metaethics):
The Embedding Objection: Part II, Four Kinds of Expressivism The Embedding Objection: Part III "The Objection from Truth Ascriptions"
(2) If intentionally flying airplanes into tall buildings is wrong, then I won't do it Leiter & Bainbridge on Ideology and the Estate Tax Check out Brian Leiter & Stephen Bainbridge on ideology and the estate tax. Smith on Toleration Steven Douglas Smith (University of San Diego - School of Law) has posted Toleration and Liberal Commitments on SSRN. Here is the abstract:
Garvey et al on Jury First Votes Stephen P. Garvey , Paula Hannaford-Agor , Valerie P. Hans , Nicole L. Mott , G. Thomas Munsterman and Martin T. Wells (Cornell Law School , National Center for State Courts , University of Delaware - Department of Sociology and Criminal Justice , National Center for State Courts , NCSC and Cornell University) have posted Juror First Votes in Criminal Trials (Journal of Empirical Legal Studies, Vol. 1, No. 2, p. 372, 2004) on SSRN. Here is the abstract:
Rasmussen on Sovereign Debt Restructuring Robert K. Rasmussen (Vanderbilt University School of Law) has posted Integrating A Theory of The State Into Sovereign Debt Restructuring (Emory Law Journal, 2004) on SSRN. Here is the abstract:
Choi on the Private Securities Litigation Reform Act Stephen J. Choi (University of California, Berkeley) has posted Do the Merits Matter Less After the Private Securities Litigation Reform Act? on SSRN. Here is the abstract:
Christiano on Authority Tom Christiano has a new Stanford Encyclopedia of Philosophy entry entitled Authority:
Johnson & Millon on Corporate Fiduciaries Lyman Johnson and David Millon (Washington and Lee University - School of Law and Washington and Lee University - School of Law) have posted Recalling Why Corporate Officers are Fiduciaries on SSRN. Here is the abstract:
Sunday, July 04, 2004
Sunstein on Minimalism In today's New York Times, Cass Sunstein has an op/ed entitled The Smallest Court in the Land. Here is a taste:
Saturday, July 03, 2004
A Modest Proposal Over at Law and Society Weblog, drhfk has a post up entitled The Virtue of Justice: Comment on Solum, which comments on my Swing Votes, Making Things Come Out Right, and the Virtue of Justice from yesterday. Here is a taste:
(2) Justices would be appointed in "batches" of two, where each political party, through their representatives, gets to nominate one justice and the other party has a veto right as to the batch of two. Once a veto is exercised, both nominees are rendered ineligible for the present vacancies. Legal Theory Bookworm This week, the Legal Theory Bookworm recommends The People Themselves: Popular Constitutionalism and Judicial Review by Larry D. Kramer. Here is a description:
Download of the Week This week, the Download of the Week is Philosophy of Tort Law: Between the Esoteric and the Banal by Benjamin C. Zipursky. Here is the abstract:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:
Friday, July 02, 2004
Swing Votes, Making Things Come Out Right, and the Virtue of Justice, Last updated at 3:08 p.m.
Two Scenarios
Second, a stable supermajoritarian results-oriented court is likely to be predictable. This predictability does not derive from the formal written materials (by definition, a results-oriented court is not following the rules laid down), but rather is a function of the fact that the ideological makeup of the court is stable and predictable. Scenario Two: A Divided Formalist Court What about the other scenario? Imagine now that we have a court that is closely divided on ideological grounds, but which consists of judges who share a commitment to the rule of law principle that cases should be decided on the basis of the rules laid down, rather that policy preferences. Let's assume that even formalist judges are influenced by their ideological preferences. The formal materials underdetermine outcomes, especially in the case of broad constitutional provisions like the equal protection, due process, and free speech clauses. So, a closely divided formalist court will produce 5-4 decisions, when different ideological lenses produce different interpretations of what the constitution and its history mean. Nonetheless, such differences are likely to be less damaging to the rule of law when the court is composed of judges whose ideological commitments are tempered by a true dedication to the rule of law. Formalist judges who respect precedent, for example, will take 5-4 decisions as decisive. Having lost the battle, they will not continue to fight the war--continuing to dissent and maneuvering for a reversal in a future case. As time goes on, then, a formalist court will converge on rules of law, even if they do not converge on political ideology. Comparison with a Results-Oriented Closely Divided Court And how do these two scenarios compare with a results-oriented, closely-divided court. Because such a court is results oriented, its decisions cannot be predicted on the basis of the rules laid down; a results-oriented court is not much concerned with precedent, constitutional text or original meaning. Because the such a court is closely divided, its decisions cannot easily be predicted on the basis of a consistent political ideology. Of course, this does not mean that such a court is utterly unpredictable. How do you predict a results-oriented, closely-divided court? You predict the votes of individual swing justices! And of course, that is exactly what court watchers try to do. They try to get inside the psyches of the swing votes; today, that means they try to predict the voting behavior of Justices Kennedy and O'Connor. (The combination of both Kennedy and O'Connor was in the minority only twice this term. In other words, in every case but two, so long as you did not lose both O'Connor and Kennedy, you prevailed.) Assuming a certain amount of noise (generated by random or opaque internal inconsistencies within Justices perhaps), however, this method of prediction is likely to be very difficult to use as a practical guide for planning behavior. The unidimensional left-right model may be out best model for predicting votes in the Supreme Court, but that does not mean it is good enough to serve as a substitute for decisions according to the rules laid down. The difficulty of predicting is likely to be compounded if the swing justices themselves are unpredictable--as many Kennedy and O'Connor may well be. Solutions? And this brings me round to the question, "What can be done?" One answer is suggested by Jonathan Turley's proposal to expand the Court from 9 to 19. Turley's proposal would reinforce the rule of law in two distinct ways:
Second, over the long-run it is simply less likely that a 19 member court would be divided 10 to 9. With 19 members, there will be more regular vacancies and a greater likelihood of stable 12+ member majorities; more justices equals more chances that the "middle" of the court will consist of more than one or two members. The Virtue of Justice Is there an alternative? Frequent readers of Legal Theory Blog will not be surprised to learn that I think there is. The key to the solution is rejection of the realist dogma that judges must be ideological. To put this point differently, we need to expand our model of judicial attitudes and dispositons and recognize that judges vary not only in their political ideology, but also in their judicial philosophies. Realist judging is not hard wired into the furniture of the universe; it is the result of particular forces, beliefs, and attitudes. And yet another way of making the point is this: formalism is a possibility. But how could we get a formalist Supreme Court? The answer to this question can begin with the virtue of justice. As is often the case with the virtues, we can learn much by going back to Aristotle. The eminent scholar, Richard Kraut explains:
There is another important way in which Aristotle's use of the term nomos differs from our word "law": he makes a distinction between nomoi and what the Greeks of his time called psephismata--conventionally translated as "decrees". A decree is a legal enactment addressed solely to present circumstances, and sets no precedent that applies to similar cases in the future. By contrast a nomos is meant to have general scope: it applies not only to cases at hand but to a general category of cases that can be expected to occur in the future.
At this point, I know that many readers will be saying to themselves, "Solum is hopelessly naive." Some of you may think that human beings really are hard wired to be realists when given judicial power. Others may think that politics are so polarized that neither party can resist the opportunity to view the opportunities to fill vacant Supreme Court seats as the ultimate spoils of political victory. And I cannot confidently say that you are wrong. In my more pessimistic moments, I am inclined to think that the downward spiral of politicization must hit bottom and the rule of law almost utterly destroyed before political actors will come to see that the long-run costs of realist judging outweigh the short run political benefits. But I take it that Jonathan Turley's proposal to increase the size of the Court from 9 to 19 is a sign of disquiet and unease. The realization that the Supreme Court is becoming increasingly dysfunctional is growing. It is not, I think, utopian to believe that a consensus can be reached on the very great value of the rule of law. Legal realism is not written in the fabric of the universe; it is the product of human choices.
And Sasha Samberg-Champion (posted in full here at the Legal Theory Annex):
And for another reaction, check out Bloomfield's Realism and the Virtue of Justice(s) at Law & Society Blog:
Hasen has more on Larios and a Post on Farenheit 9/11 Over at Election Law Blog, Rick Hasen has More on the meaning of the summary affirmance in Larios and a great post entitled "Fahrenheit 9/11," NRANews, and the Media Exemption: Should Michael Moore, the NRA and Others Get a Pass from McCain-Feingold's Electioneering Communications Provisions? Kriegel on Internalism Uriah Kriegel has a nice post on Desert Landscapes entitled On the Formulation of Ethical Internalism. Here is a taste:
Bebchuk on Shareholder Power Lucian Arye Bebchuk (Harvard Law School) has posted The Case for Increasing Shareholder Power (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:
Ku on the Intellectual Property Clause Raymond Shih Ray Ku (Case Western Reserve University - School of Law) has posted Copyright, the Constitution & Progress on SSRN. Here is the abstract:
Book Announcement: The Hand of Compassion
Patterson on Law Fixing Mark R. Patterson (Fordham University School of Law) has posted Law-Fixing: Should Lawyers Agree How to Interpret Statutes? on SSRN. Here is the abstract:
Zipursky on Tort Theory Benjamin C. Zipursky (Fordham) has posted Philosophy of Tort Law: Between the Esoteric and the Banal (BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding, William Edmundson, eds., Blackwell, 2004) on SSRN. Here is the abstract:
Sebok on the History of Mass Tort Restitution Litigation Anthony J. Sebok (Brooklyn Law School) has posted A Brief History of Mass Restitution Litigation in the United States (CALLING POWER TO ACCOUNT, David Dyzenhaus, May Moran, eds., University of Toronto Press, 2004). Here is the abstract:
Owen on Media Con Bruce M. Owen (Stanford University - Institute for Economic Policy Research) has posted Confusing Success with Access: "Correctly" Measuring Concentration of Ownership and Control in Mass Media and Online Services on SSRN. Here is the abstract:
Thursday, July 01, 2004
Smith on the Pluralist Predictament Steven Douglas Smith (University of San Diego) has posted The Pluralist Predicament: Contemporary Theorizing in the Law of Religious Freedom on SSRN. Here is the abstract:
Bebchuk on Threats to Sue Lucian Arye Bebchuk (Harvard Law School) has posted A New Theory concerning the Credibility and Success of Threats to Sue (Journal of Legal Studies, Vol. 25, pp. 1-25, 1996) on SSRN. Here is the abstract:
Dupré Reviews LaPorte on Natural Kinds and Conceptual Change On Notre Dame Philosophical Reviews, John Dupré has a Review of Joseph LaPorte's Natural Kinds and Conceptual Change. Here's a taste:
Eggleston Reviews West on Mill On Notre Dame Philosophical Reviews, Ben Eggleston has a Review of Henry West's An Introduction to Mill’s Utilitarian Ethics. Here is a taste:
Väyrynen on Hedged Moral Principles Pekka Väyrynen has posted A Theory of Hedged Moral Principles. Here is a taste:
Conference Announcement: Hegal Society of Great Britain
Conference Announcement: Social Justice in a Changing World
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