Legal Theory Blog |
|
 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 
|
Thursday, September 30, 2004
Thursday Calendar
Stanford Law & Economics: Chris William Sanchirico (University of Pennsylvania Law School), Evidence, Procedure, and the Upside of Cognitive Error. Boston University Law Faculty Workshop: David Lyons. Morris on the Civil Criminal Distinction Grant H. Morris (University of San Diego School of Law)has posted Mental Disorder and the Civil/Criminal Distinction (San Diego Law Review, Vol. 41, No. 3, 2004) on SSRN. Here is the abstract:
Zacharias on Lawyers as Gatekeepers Fred C. Zacharias (University of San Diego School of Law) has posted Lawyers as Gatekeepers (San Diego Law Review, 2004) on SSRN. Here is the abstract:
Wednesday, September 29, 2004
Call for Papers: 2005 Joint Session
Wednesday Calendar
Tuesday, September 28, 2004
Goodman on Media Policy Ellen P. Goodman (Rutgers University - Law School) has posted Media Policy Out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets on SSRN. Here is the abstract:
Conference Announcement: Consequentialism at Edingurgh
Monday, September 27, 2004
Mondayh Calendar
Hofstra School of Law: Deborah Brake, University of Pittsburgh School of Law, Resistance and Retaliation: The Under-Protection and Policing of Discrimination Claimants. Columbia Law & Economics: Professor Max Schanzenbach, Northwestern University School of Law, Instrument Choice Theory and Criminal Sentencing: Strategic Judging Under the United States Sentencing Guidelines, Co-author, Emerson H. Tiller. New York University Law: Roberta Romano (Visiting from Yale), Empirical Studies of Corporate Law. Cardozo Law School: Alan Schwartz (Yale Law), A Normative Theory of Bankruptcy. Sunday, September 26, 2004
Legal Theory Calendar
Hofstra School of Law: Deborah Brake, University of Pittsburgh School of Law, Resistance and Retaliation: The Under-Protection and Policing of Discrimination Claimants. Columbia Law & Economics: Professor Max Schanzenbach, Northwestern University School of Law, Instrument Choice Theory and Criminal Sentencing: Strategic Judging Under the United States Sentencing Guidelines, Co-author, Emerson H. Tiller. New York University Law: Roberta Romano (Visiting from Yale), Empirical Studies of Corporate Law. Cardozo Law School: Alan Schwartz (Yale Law), A Normative Theory of Bankruptcy.
Stanford Law & Economics: Chris William Sanchirico (University of Pennsylvania Law School), Evidence, Procedure, and the Upside of Cognitive Error. Boston University Law Faculty Workshop: David Lyons.
Georgetown Law and Economics: Kevin Davis, New York University School of Law, The Demand for Immutable Contracts: Another Look at the Law and Economics of Contract Modifications. Legal Theory Lexicon: The Reasonable Person
Introduction Today's Legal theory Lexicon is about the "reasonable person," who used to be the "reasonable man" and is now occasionally the "reasonable woman." This topic was suggested to me by my host and friend, the eminently reasonable (and rational. The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory. A cautionary note. The word "reasonable" is used in a wide variety of legal contexts, some of which have very little to do with the reasonable person. In Antitrust law, for example, the notion of "an unreasonable restraint of trade" is crucially important, but this topic does not, at least on the surface, have anything to do with the reasonable person of torts and criminal law. The Reasonable and the Rational This is, after all, Legal Theory Blog, so I hope you will forgive me for starting at a fairly high level of abstraction. "Reasonable" and "rational" are used in many different contexts and have a variety of meanings, but when I think about the "reasonable," the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls. When the rational is defined in contradistinction to the reasonable, rational usually refers to instrumental rationality--that is, the rationality of ends and means. Given that an agent has end X, it is rational for the agent to engage in action Y, only if Y will lead to X. Instrumental rationality is relative to the ends of a particular agent, and may (but need not) consider the interests of others. Thus, it may be instrumentally rational for me to steal from you, if you have something that I want and I have good reason to believe that I won't get caught. But it may also be rational for me to help a stranger, if I happen to have the welfare of others as my end. When we contrast the reasonable with the rational, the notion of the reasonable goes beyond instrumental rationality. It may be rational for me to steal from you, but unreasonable for me to do so. Why not? Well, that is quite a question. One answer is based on the idea that the reasonable is, in some way, connected to what could be justified to others. Another idea is that the reasonable is in some way specified by that to which others would consent. So as we are thinking about the "reasonable person," it is important to distinguish her from her cousin, the "rational person." The rational person may or may not take the interests of others into account. To be a reasonable person, however, is to consider the interests or viewpoints of others--to give them their proper due. Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"? How much is enough? How much is too much? So far, we have only the general concept of the reasonable person. In order to make use of the "reasonable person" in the law, we need a particular conception of the "reasonable person"--a set of standards or criteria that will enable us to sort the reasonable actions from the unreasonable ones. Subjective and Objective Reasonableness One more preliminary distinction--much is made of the difference between subjective and objective reasonableness. For example, we might, for example, distinguish between the "reasonable person" and the "reasonable intoxicated person" or the "reasonable person with a developmental disability" or the "reasonable person with a hot temper." Usually, we call the reasonable-person standard an objective standard, signifying that the we are not taking the particular characteristics of defendants in tort or criminal actions into account when we ask whether they met the relevant standard of care. Some critics of the reasonable person standard argue that its "objectivity" is a mask for a bias that favors some groups over others. On this, see Mayo Moran's forthcoming book Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard. Learned Hand and the Reasonable Person as Cost-Benefit Analyst The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous Carroll Towing case.
The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency, and specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.) Even if the Learned Hand formula is best interpreted as employing cost-benefit analysis or the economic idea of efficiency, it does not directly follow that the purpose of the law of negligence is itself to promote the most cost-beneficial consequences. It might be, for example, that a strict liability regime (rather than a negligence regime) will produce the best consequences. There are two different questions regarding the relationship between cost-benefit analysis and the reasonable person. (1) Does the reasonable person standard employ cost-benefit analysis as the criterion for negligence?, and (2) Does cost-benefit analysis support the choice of negligence (as opposed to strict liability or no liability) as the rule governing nonintentional torts? Once the questions are separated, it is clear that they are different. It might be that the law employs a cost-benefit (Learned Hand) test as the standard of care in negligence cases, but that this approach itself is not the best when judged by cost-benefit analysis. Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others Although many scholars interpret the Learned Hand formula as an endorsement of an economic approach to the reasonable person, others reject this move. The Hand formula can also be interpreted as reflecting an argument of principle (or fairness). At a very high level of generality, we might say that the reasonable person treats others with respect. This approach to the reasonable person is roughly correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative. The reasonable person, we might say, acts so that the maxim of her action (the principle upon which she acts) could be willed as a universal law--or to be put it differently, the reasonable person treats others as ends-in-themselves and not only as means. In this vein, Ronald Dworkin has argued that the Learned Hand formula can be understood as reflecting the moral equality of persons. Virtue Jurisprudence and the Aretaic Conception of the Reasonable Person Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in particular from the idea that the focal standard for morality is the "virtuous agent," i.e. the person who posseses the moral and intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose. And the winner is . . . As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then? Conclusion If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory. Bibliography Saturday, September 25, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends The Difficulty of Tolerance : Essays in Political Philosophy by T. M. Scanlon. Scanlon is without doubt one of the fienst moral philosophers of his generation. I sometimes find his prose frustrating--he often uses baroquely complex paragraph constructons--but, for me, the effort has always been worthwhile. Here is a blurb:
Download of the Week The Download of the Week is Judges as Rulemakers by Larry Alexander and Emily L. Sherwin. Here is the abstract:
Friday, September 24, 2004
Yu on P2P Peter K. Yu (Michigan State University College of Law) has posted P2P and the Future of Private Copying (University of Colorado Law Review, Vol. 76, 2005) on SSRN. Here is the abstract:
Morgan & Zietlow on the New Parity Debate Denise C. Morgan and Rebecca E. Zietlow (New York Law School - General and University of Toledo - College of Law) have posted The New Parity Debate: Congress and Rights of Belonging on SSRN. Here is the abstract:
Shavell on the Appeals Process Steven Shavell (Harvard Law School) has posted The Appeals Process and Adjudicator Incentives. Here is the abstract:
Conference Announcement: Society for Applied Philosophy
Friday Calendar
University of Texas School of Law: Bill Sage, Columbia Law School Friday Afternoon Faculty, Medical Malpractice Reform as a Research and Policy Problem. University of Buffalo: Jim Milles, UB, Leaky Boundaries and the Decline of the Autonomous Law School Library. Oxford University Faculty of Law, Institute of European and Comparative Law: Constitutionalism and the Role of Parliaments. Thursday, September 23, 2004
Mercurio on Internet Voting as the Salvation of Democracy Bryan Christopher Mercurio (University of New South Wales - Faculty of Law) has posted Democracy in Decline: Can Internet Voting Save the Electoral Process? (John Marshall Journal of Computer & Information Law, 2004) on SSRN. Here is the abstract:
Alexander & Sherwin on Precedent Larry Alexander and Emily L. Sherwin (University of San Diego School of Law and Cornell University - School of Law) have posted Judges as Rulemakers (COMMON LAW THEORY, Douglas Edlin, ed., Cambridge University Press) on SSRN. Here is the abstract:
Zacharias on Recent Trends in Federal Regulation of Lawyers Fred C. Zacharias (University of San Diego School of Law) has posted Understanding Recent Trends in Federal Regulation of Lawyers (Professional Lawyer, Symposium Issue, 2003) on SSRN. Here is the abstract:
Prüfer on the Economics of Open Source Jens Prüfer (University of Frankfurt) has posted Why Do Developers and Firms Contribute to the Production of Open Source Software? on SSRN. Here is the abstract:
Thursday Calendar
UCLA Legal Theory Workshop: Gideon Yaffe (Philosophy, USC), The Government Beguiled Me”: The Entrapment Defense and the Problem of Private Entrapment. Yale Legal Theory Workshop: Kendall Thomas, Columbia (Law), If There is Such a Thing": Race, Sex and the Politics of Enjoyment in the Killing State. Harvard Public Law Workshop: Cass R. Sunstein, University of Chicago Law School and Political Science Department, Group Judgments: Deliberation, Statistical Means, and Information Markets. Florida State University School of Law: Edward McCaffery, University of Southern California, Shakedown at Gucci Gultch: A Tale of Death, Money & Taxes. Boston University School of Law Faculty Workshop: Gary Lawson, On Expounding Constitutions. University of Michigan Law & Economics: Vic Khanna, Michigan, Corporate Defendants and the Protections of Criminal Procedure: An Economic Analysis. Vanderbilt School of Law: Richard Nagareda (Vanderbilt) & Sam Issacharoff (Columbia), ALI Principles of the Law of Aggregate Litigation: Aggregate Treatment of Overlapping Common Issues. Vanderbilt School of Law: Sam Issacharoff, Columbia Law School, Judicial Review of Partisan Gerrymanders. Wednesday, September 22, 2004
An Intriguing Proposal Karen Selick has an intriguing idea for the reform of Canada's highest court:
Program Annoucement: The Past Present and Future in Antitrust Enforcement at the FTC
Can a Moral Subjectivist Change Her Mind? Take a look at Intra-Personal Moral Disagreement by Uriah Kriegel on Desert Landscapes. Here is a taste:
Program Announcement: Knowledge Anywhere, Anytime at Stanford
Wednesday Calendar
Northwestern University Law & Economics Colloquium: David Haddock, Northwestern University, Irrelevant Externality Angst. Australian National University: Conference, Australian Lawyers and Social Change, Canberra, 22 - 24 September 2004. Tuesday, September 21, 2004
Lecture Announcement: Perry at Notre Dame
Conference Announcement: Bellhead/Nethead: The FCC Takes On The Internet
Tuesday Calendar
Monday, September 20, 2004
Monday Calendar
Sarah Waldeck, Seton Hall Law School, An Appeal to Charity: Using Philanthropy to Reinvigorate the Estate Tax. New York University School of Law: Stephen Choi (Berkeley, visiting NYU), Topic not announced. Weekend Update On Saturday, the Download of the Week was Constitutional Amendments and the Constitutional Common Law by Adrian Vermeule and the Legal Theory Bookworm recommended Promises to Keep by William Fisher. On Sunday, the Legal Theory Lexicon topic was "Hypotheticals" and the Legal Theory Calendar is back in full swing. Rasmusen on Lemley and the Consumer Surplus Argument for IP Check out The Consumer Surplus Argument for Patent Monopolies on Rasmusen's Not Politics Weblog. Metaethics in Legal Reasoning Download Meta Ethics in Legal Reasoning by Hanno Kaiser of Law & Society Weblog. McCaffery & Siemrod on Behavioral Public Finance Edward J. McCaffery and Joel B. Slemrod (University of Southern California - Law School and University of Michigan Business School) have psoted Toward an Agenda for Behavioral Public Finance on SSRN. Here is the abstract:
Burke on Lee Alafair S. Burke (Hofstra University - School of Law) has posted BOOK REVIEW: Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom. By Cynthia Lee. (Michigan Law Review, 2005) on SSRN. Here is the abstract:
Berg on Owning Persons Jessica Wilen Berg (Case Western Reserve University - School of Law) has posted Owning Persons: The Application of Property Theory to Embryos and Fetuses on SSRN. Here is the abstract:
Sunder on Property in Personhood Madhavi Sunder (University of California, Davis - School of Law) has posted Property in Personhood (RETHINKING COMMODIFICATION: CASES AND READINGS IN LAW & CULTURE, Martha M. Ertman and Joan C. Williams, eds., 2005) on SSRN. Here is the abstract:
Sunday, September 19, 2004
Legal Theory Calendar
Sarah Waldeck, Seton Hall Law School, An Appeal to Charity: Using Philanthropy to Reinvigorate the Estate Tax. New York University School of Law: Stephen Choi (Berkeley, visiting NYU), Topic not announced.
Northwestern University Law & Economics Colloquium: David Haddock, Northwestern University, Irrelevant Externality Angst. Australian National University: Conference, Australian Lawyers and Social Change, Canberra, 22 - 24 September 2004.
UCLA Legal Theory Workshop: Gideon Yaffe (Philosophy, USC), The Government Beguiled Me”: The Entrapment Defense and the Problem of Private Entrapment. Yale Legal Theory Workshop: Kendall Thomas, Columbia (Law), If There is Such a Thing": Race, Sex and the Politics of Enjoyment in the Killing State. Harvard Public Law Workshop: Cass R. Sunstein, University of Chicago Law School and Political Science Department, Group Judgments: Deliberation, Statistical Means, and Information Markets. Florida State University School of Law: Edward McCaffery, University of Southern California, Shakedown at Gucci Gultch: A Tale of Death, Money & Taxes. Boston University School of Law Faculty Workshop: Gary Lawson, On Expounding Constitutions. University of Michigan Law & Economics: Vic Khanna, Michigan, Corporate Defendants and the Protections of Criminal Procedure: An Economic Analysis. Vanderbilt School of Law: Richard Nagareda (Vanderbilt) & Sam Issacharoff (Columbia), ALI Principles of the Law of Aggregate Litigation: Aggregate Treatment of Overlapping Common Issues. Vanderbilt School of Law: Sam Issacharoff, Columbia Law School, Judicial Review of Partisan Gerrymanders.
University of Texas School of Law: Bill Sage, Columbia Law School Friday Afternoon Faculty, Medical Malpractice Reform as a Research and Policy Problem. University of Buffalo: Jim Milles, UB, Leaky Boundaries and the Decline of the Autonomous Law School Library. Oxford University Faculty of Law, Institute of European and Comparative Law: Constitutionalism and the Role of Parliaments. Legal Theory Lexicon: Hypotheticals
What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from hypotithenai, "to put under." In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching. Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Ben agreed to pay Alice $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following: The Purposes of Hypotheticals Why do law professors use hypotheticals? "Beware the hypothetical, my son. The laws that catch, the facts that bite." Hypos can be fun, but many law students don't have a good time, when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialog is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game. Lesson Number One: Fight the hypothetical, lose the war! The first and most important lesson to learn about hypotheticals is that you can't get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the "hypothesis." One way to do this is to fight the facts. "That wouldn't happen." Or "In the real world, it would happen differently." Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, "O.K., but for the sake of argument, assume these facts." At the best, you get another version of the same hypo that works around your factual objection." As a general rule, don't fight the facts. Lesson Number Two: Watch for Slippery Slopes Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule." When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon. Lesson Number Three: Watch Out for Cold Rules and Hot Facts This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. "Starving babies" are a common device. But should Alice have to pay Ben damages if Alice has a "starving baby!" Of course not, you say to yourself, but in fact whether or not Alice's baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense." Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of "necessity." Obviously, these two strategies can be combined: "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of "necessity" to actions for breach of contract." Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:
Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn't. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided--"novel questions" where not precedent or rule is binding; (2) Rules sometimes have "gaps," places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a "hard case." When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:
(2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body. (3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted. Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren't punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as "intuition pumps." That is, the wild case is constructed so as to generate a particular reaction--an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating--they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work--pumping the intuition. When you are questioned about a wild case, you should simply give your reaction--your gut instinct. But it is also fair to qualify your answer: "My answer is yes, but this case is so wild that I really don't feel very sure about my intuitions." Wild cases are the dessert of law school. Saturday, September 18, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Promises to Keep by William W. Fisher III. Here is a blurb:
Download of the Week This Download of the Week is Constitutional Amendments and the Constitutional Common Law by Adrian Vermeule. Here is the absract:
Friday, September 17, 2004
Garrett on Framework Legislation Elizabeth Garrett (University of Southern California - Law School) has posted Conditions for Framework Legislation on SSRN. Here is the abstract:
Thursday, September 16, 2004
Smith on Conscience Steven Douglas Smith (University of San Diego - School of Law) has posted The Tenuous Case for Conscience on SSRN. Here is the abstract:
Vermeule on Constitutional Amendments & Constitutional Common Law Adrian Vermeule (University of Chicago Law School) has posted Constitutional Amendments and the Constitutional Common Law on SSRN. Here is the absract:
Long on Information Costs in Patent & Copyright Clarisa Long (Virginia) has posted Information Costs in Patent and Copyright (Virginia Law Review, Vol. 90, No. 2, 2004) on SSRN. Here is the abstract:
Molot on Principled Minimalism Jonathan T. Molot (The George Washington University Law School) has posted Principled Minimalism: Restriking The Balance Between Judicial Minimalism And Neutral Principles (Virginia Law Review, 2004) on SSRN. Here is the abstract:
Jolls & Sunstein on Debiasing Christine Jolls and Cass R. Sunstein (Harvard Law School and University of Chicago Law School) have posted Debiasing through Law on SSRN. Here is the abstract:
Emens on Mental Illness & the ADA Elizabeth F Emens (University of Chicago - Law School) has posted The Sympathetic Discriminator: Mental Illness and the ADA (Georgetown Law Journal, 2005) on SSRN. Here is the abstract:
Wednesday, September 15, 2004
Green & Zacharias on Prosecutorial Neutrality Bruce A. Green and Fred C. Zacharias (Fordham University School of Law and University of San Diego School of Law) have posted Prosecutorial Neutrality (Wisconsin Law Review, 2004) on SSRN. Here is the abstract:
Lee on Foreign Law in IP Cases Edward Lee (Ohio State University - Michael E. Moritz College of Law) has posted The New Canon: Using or Misusing Foreign Law to Decide Domestic Intellectual Property Claims (Harvard International Law Journal, Vol. 46, 2005) on SSRN. Here is the abstract:
Kerr on Technology & Privacy Orin S. Kerr (George Washington University Law School) has posted Technology, Privacy, and the Courts: A Reply to Colb and Swire (Michigan Law Review, Vol. 102, pp. 934-943, March 2004) on SSRN. Here is the abstract:
Radin & Sunder on Commodification Margaret Jane Radin and Madhavi Sunder (Stanford University - School of Law and University of California, Davis - School of Law) have posted The Subject and Object of Commodification (RETHINKING COMMODIFICATIONS: CASES AND READINGS IN LAW AND CULTURE, Martha M. Ertman, Joan C. Williams, eds., 2005) on SSRN. Here is the abstract:
Conference Announcement: ISUS
Tuesday, September 14, 2004
Foundations of Political Theory Book Reviews
Martha Nussbaum. Upheavals of Thought: The Intelligence of Emotions. Cambridge University Press, 2003. $26.99 (paper), $50.00 (cloth). Reviewed by Aaron Margolis. Vickie B. Sullivan. Machiavelli, Hobbes, & the Formation of a Liberal Republicanism in England. Cambridge University Press, 2004. $75.00 (cloth). Reviewed by Ilya Winham. Jeffrey Stout. Democracy and Tradition. Princeton University Press, 2003. $35.00 (cloth). Reviewed by William Junker. Ajume H. Wingo. Veil Politics in Liberal Democratic States. Cambridge University Press, 2003. $55.00 (cloth) $22.00 (paper). Reviewed by Andrew Dilts. Steven Shavell. Foundations of Economic Analysis of Law. Belknap Press, 2004. $65.00 (cloth). Reviewed by .M. Bilgehan Ozturk. Mark C. Murphy (ed.). Alasdair MacIntyre. Cambridge University Press, 2003. $20.00 (paper). Reviewed by William Junker. Conference Announcement: ASPLP
Call for Papers: Technology & the Chaing Face of Humanity
Call for Papers: British Society for Ethical Theory
Monday, September 13, 2004
New from Law & Politics Book Review
Punishment, Places and perpetrators: Developments in Criminology and Criminal Justice Research by Gerben Bruinsma, Henk Elffers, and Jan de Keijser (Editors). Cullompton, UK: Willan Publishing, 2004. 336pp. Hardback. £45.00 / $69.95. ISBN 1-84392-060-3. Reviewed by Mathieu Deflem. TAKING SPACE SERIOUSLY: LAW, SPACE AND SOCIETY IN CONTEMPORARY ISRAEL by Issachar Rosen-Zvi . Aldershot, England and Burlington, VT: Ashgate, 2004. 224pp. Hardback. $89.95/£50.00. ISBN: 0-7546-2351-3. Reviewed by Allan E. Shapiro. VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE, by Bruce Ackerman and Ian Ayres. New Haven: Yale University Press, 2002. 303pp. Cloth $35.00. ISBN: 0-300-09262-8. Paper $18.00. ISBN: 030010149X. Reviewed by Stephen K. Medvic. MATTHEW J. PERRY: THE MAN, HIS TIMES, AND HIS LEGACY, by W. Lewis Burke and Belinda F. Gergel (Editors). Columbia, SC: University of South Carolina Press, 2004. 312pp. Hardcover $24.95. ISBN: 1-57003-534-2. Reviewed by Staci L. Beavers. FROM '9-11' TO THE 'IRAQ WAR 2003': INTERNATIONAL LAW IN AN AGE OF COMPLEXITY, by Dominic McGoldrick. Oxford and Portland, Oregon: Hart Publishing, 2004. 396pp. Paper $36.00 / £18.00. ISBN: 1-84113-496-1. Reviewed by Mark J. Harris. HIDING FROM HUMANITY: DISGUST, SHAME AND THE LAW, by Martha C. Nussbaum. Princeton, N.J.: Princeton University Press, 2004. 432pp. Cloth. $29.95 / £18.95. ISBN 0-691-09526-4. Reviewed by Stefanie A. Lindquist. Sunday, September 12, 2004
Legal Theory Lexicon: Ex Ante/Ex Post If I had to select only one theoretical tool for a first-year law student to master, it would be the ex post/ex ante distinction. (Of course, this is cheating, because there is a lot packed into the distinction between looking-back and looking-fowards when assessing legal rules.) The terminology comes from law and economics, and here is the basic idea:
Why is the distinction between ex ante and ex post so important? Because it marks an important theoretical divide between consequentialist and deontological approaches to legal theory. Consequentialists, we might say, simply don't care about the question whether A has violated the rights of B, for their own sake. Rather, a consequentialist cares about the consequences of attaching liability to those who act like A did. Ex ante, is a strict liability rule or a negligence rule more efficient? Deontologists, on the other hand, care very much about who has acted rightly and wrongly. In tort law, for example, corrective justice theories of tort are associated with the ex post perspective. A should be liable to B, only if A has acted wrongly. If you are a first-year law student, you might make a habit of asking yourself questions like the following:
Will the rule produce good consequences (as compared to the alternatives) from an ex ante perspective? Saturday, September 11, 2004
Download of the Week The Download of the Week is Property, Intellectual Property, and Free Riding by Mark A. Lemley. Lemley is The Man, and this is another in a series of stunningly good papers. Here is the abstract:
Friday, September 10, 2004
Friday Calendar
University of Texas Law School Faculty Colloquium: John Fabian Witt, Visiting Professor, Columbia Law School, "Crystal Eastman and the Internationalist Beginnings of American Civil Liberties". University of Pennsylvania Institute for Law & Philosophy: Mini-Symposium on Kant on Law.
Thursday, September 09, 2004
Ogletree I am probably the last legal academic to learn about the Ogletree/Balkin incident. Here's a quote (with proper attribution) from the story in the Boston Globe:
A Tournament of Virtue Long-time readers of Legal Theory Blog may recall Choi and Mitu Gulati’s essay, A Tournament for Judges, which prompted a post entitled A Tournament for Judges. Mad? Brilliant? Clever?. Florida State's law review has organized a symposium on Choi & Gulati's proposal, and my contribution, A Tournament of Virtue, is now available for download on SSRN. Here is the abstract:
Thursday Calendar
Loyola Marymount University, Loyola Law School: John Nockleby, Professor of Law, Loyola Law School “Making Sense of Tort Reform”. Boston University School of Law Faculty Workshops: Keith Hylton/David Lyons joint presentation, "Two Approaches to Equality, with Implications for Grutter" (Hylton) and "Comments on Keith Hylton's 'Two Approaches ... '" (Lyons). Florida State University School of Law: David Brennen, Mercer University School of Law. Topic: "A Rationale for the Charitable Tax Exemption. Chander & Sunder on the Public Doman Anupam Chander and Madhavi Sunder (University of California, Davis - School of Law and University of California, Davis - School of Law) have posted The Romance of the Public Domain (California Law Review, Vol. 92, 2004) on SSRN. Here is the abstract:
Wednesday, September 08, 2004
Yu on the Mistrust of Intellectual Property Peter K. Yu (Michigan State University College of Law) has posted The Trust and Distrust of Intellectual Property Rights on SSRN. Here is the abstract:
Wednesday Calendar
Geras on the Marxian idea of the End of the State Over at Normblog, Norman Geras has a series of posts that critique the Marxian idea of the end of the state. Begin here and continue here. Here's a taste from the first post:
Book Announcement: A Cultural History of Causality Science, Murder Novels, and Systems of Thought
Tuesday, September 07, 2004
Graber on Civil Liberties in Times of War Guest blogging over at Balkinization Mark Graber has a post entitled Civil Liberties in Wartime II . Here is a taste:
Lemley on Intellectual Property and Free Riding Mark A. Lemley (Stanford University - School of Law) has posted Property, Intellectual Property, and Free Riding on SSRN. Here is the abstract:
Orbach on Unwelcome Benefits Barak Y. Orbach (New York University - School of Law) has posted Unwelcome Benefits on SSRN. Here is the abstract:
McAdams & Rasmusen on Norms in Law and Economics Richard H. McAdams and Eric Bennett Rasmusen (University of Illinois at Urbana-Champaign - College of Law and Indiana University Bloomington - Department of Business Economics & Public Policy) have posted Norms in Law and Economics on SSRN. Here is the abstract:
Monday, September 06, 2004
Two By Sherwin Emily L. Sherwin (Cornell University - School of Law) has posted two papers on SSRN.
Hoffman & O'Shea on Whether Law & Economics Can Be Practical & Principled David A. Hoffman and Michael O'Shea (Temple University - James E. Beasley School of Law and U.S. Court of Appeals - 8th Cicuit) have posted Can Law and Economics be Both Practical and Principled? (Alabama Law Review, Vol. 53, p. 335, 2002) on SSRN. Here is the abstract:
Kesavan & Paulson on the Interpretive Force of the Records of the Constitutional Convention Vasan Kesavan and Michael Stokes Paulsen (Independent and University of Minnesota Law School) have posted The Interpretive Force of the Constitution's Secret Drafting History (Georgetown Law Journal, Vol. 91, 2003) on SSRN. Here is the abstract:
Sunday, September 05, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends The Idea of Private Law by Ernest J. Weinrib. Weinrib has one of the most original and interesting theories of private law and this is the place to go for a comprehensive statement of his theory. Here's the blurb from the Harvard University Press website:
Legal Theory Calendar
Loyola Marymount University, Loyola Law School: John Nockleby, Professor of Law, Loyola Law School “Making Sense of Tort Reform”. Boston University School of Law Faculty Workshops: Keith Hylton/David Lyons joint presentation, "Two Approaches to Equality, with Implications for Grutter" (Hylton) and "Comments on Keith Hylton's 'Two Approaches ... '" (Lyons). Florida State University School of Law: David Brennen, Mercer University School of Law. Topic: "A Rationale for the Charitable Tax Exemption.
University of Texas Law School Faculty Colloquium: John Fabian Witt, Visiting Professor, Columbia Law School, "Crystal Eastman and the Internationalist Beginnings of American Civil Liberties". University of Pennsylvania Institute for Law & Philosophy: Mini-Symposium on Kant on Law.
Legal Theory Lexicon: The Coase Theorem
This is where Coase came in. But to understand what Coase said, we need to add another bit of economic jargon. By transaction cost, we mean the cost of reaching a bargain. In the real world, lawyers are frequently part of transaction costs, but the time and expense that it takes to strike a deal are transaction costs as well--even if you don't actually lay out any cash. One more little move, if we assume that there are zero transaction costs, we are simply assuming that it costs absolutely nothing to strike a deal--no time, no effort, no lawyers, not even any paper on which to write it up. Coase said, "Let's assume zero transaction costs!" Okey dokey, what next! If we assume zero transaction costs, then when there are externalities, the market will reach the efficient outcome irrespective of how entitlements are assigned. Another mouthful! Let's go back to our hypo:
If we assign the entitlement to the railroad, the farmer will incur $100 in costs from the fire. The farmer will realize that he can save this $100 cost by entering into a contract whereby he pays $50 (plus some extra enducement, say $51 total) to the railroad in exchange for the railroad installing the spark arrestor. Since we have assumed zero transaction costs, the railroad and the farmer both benefit from this deal. One word of warning, the zero-transaction-costs assumption is just an assumption. In the real world, there are always (or almost always) transaction costs. Nonetheless, in some situations, transactions costs are sufficiently low so that the efficient bargain can be struck. In other situations, this is not the case. That's where the action is! Links
The Coase Theorem: A Study in Economic Epistemology by Gary North Bill Edmundson's Handout on the Coase Theorem Saturday, September 04, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Ideals as Interests in Hobbes's Leviathan : The Power of Mind over Matter by S. A. Lloyd. To understand the normative commitments that underlies modern theories of law, you must understand Hobbes. The past two decades have witnessed a flowering of Hobbes scholarship. Traditional interpretations of Hobbes (which emphasize the first half of Leviathan gave way to high-tech versions (especially Greg Kavka and Jean Hampton) that utilized the tools of game theory and contemporary philosophy. Lloyd's Ideals as Interests marked a crucial turning point in the contemporary understanding of Hobbes, providing a remarkable and persuasive interpretation that integrated the long-neglected second half of Leviathan into a coherent account of Hobbes's political philosophy. Key to Lloyd's account is the idea of a "transcendent interest," the kind of interest for which humans are willing to lay down their lives. Here is the blurb from the Cambridge University Press Website:
Download of the Week The Download of the Week is Reform(aliz)ing Copyright by Chris Sprigman. Here is the abstract:
Friday, September 03, 2004
McGowan on Garver David McGowan (University of Minnesota Law School) has posted (So) What if it's All Just Rhetoric? on SSRN. Here is the abstract:
Williams on Kramer Norman Williams (Willamette University - College of Law) has posted The People's Constitution (Stanford Law Review, Vol. 57, October 2004) on SSRN. Here is the abstract:
Sprigman on Reformalizing Copyright Chris Sprigman (Stanford University - School of Law) has posted Reform(aliz)ing Copyright (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
Thursday, September 02, 2004
Ayres & Baker on Reckless Sex Ian Ayres and Katharine K. Baker (Yale Law School and Illinois Institute of Technology) have posted A Separate Crime of Reckless Sex on SSRN. Here is the abstrat:
Chorvat & McCabe on the Law & the Brain Terrence R. Chorvat and Kevin McCabe (George Mason University School of Law and George Mason University - Department of Economics) have posted The Brain and the Law (Philosophical Transactions of the Royal Society of London, Forthcoming) on SSRN. Here is the abstract:
Conference Announcement: Bankruptcy of Religious Nonprofits
Wednesday, September 01, 2004
Carlson on Hegel David Gray Carlson (Cardozo Law School) has posted Why Are There Four Hegelian Judgments? (Cardozo Journal of Law, Policy and Ethics, Vol. 2, Forthcoming) on SSRN. Here is the abstract:
Rosenfeld on Constitutional Adjudciation in the United States & Europe Michel Rosenfeld (Cardozo Law School) has posted Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts (International Journal of Constitutional Law, Vol. 2, No. 2, October 2004). Here is the abstract:
Conference Announcement: Supreme Court Preview
Conference Announcement: Conflict of Laws & the University of Pennsylvania
|