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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Sunday, October 31, 2004
Legal Theory Calendar--Updated
Oxford Seminar on Moral Philosophy: Michael Zimmerman (North Carolina at Greensboro), 'Is moral obligation objective or subjective?' NYU Law: Albert Yoon (Visiting from Northwestern). The End of the Rainbow: Understanding Turnover among Federal Judges. Oxford Centre for Socio-Legal Studies: Ambreena Manjim Socio-Legal Approaches to Law and Development: The Rebirth of Law and Development: A Feminist Critique. Oxford Faculty of Law: Michele Graziadei, 2004 Clarendon Lectures : On playing tennis with the net up: fiduciary obligations, contractual relations and property. UCLA School of Law: David Callahan, Founder, Demos Public Policy Center, “The Cheating Culture: Why More Americans Are Doing Wrong to Get Ahead”.
University of Chicago Law & Economics: Alex Stein, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University, Overenforcement. Oxford Intellectual Property Research Centre: Andreas Panagopoulos, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: The Effects of Firm Size in Reaching an Out-of-court Settlement.
Oxford Centre for Criminology: Pat O’Malley, The Uncertain Promise of Risk.
Boston University, School of Law: Ward Farnsworth, "Signatures of Ideology: The Case of the Supreme Court's Criminal Docket". Florida State University, School of Law: Kathyrn Zeiler, Georgetown University Law Center, "Common Law Disclosure Duties and the Sin of Omission: Testing the Meta-theories." Loyola Marymount, Loyola Law School: Sharon Dolovich, Professor of Law, UCLA Law School, “Punishment and Profit: The Case Against Private Prisons”. Oxford Public International Law Discussion Group: Salem Chalabi, Prosecuting Saddam Hussein: The Iraqi Special Tribunal for War Crimes. University of Michigan Law & Economics: Daryl Levinson, New York, Empire-Building Government in Constitutional Law.
UCLA School of Law: Kathleen Clark, Washington University School of Law, "The Meaning of Corruption in Campaign Finance Law". University of Texas, School of Law: Richard Markovits, "Predatory Investments," "Predatory Systems Rivalry and Predatory Aftermarket Conduct". Legal Theory Lexicon: Public Reason
Historical Perspective Where does the idea of public reason come from? Contemporary scholarship sometimes assumes that the notion of public reason was invented out of whole cloth by Rawls, but in fact, it has a long philosophical history. For example, the phrase "public reason" is found in Thomas Hobbes' Leviathan. The section of Leviathan in which this passage appears addresses the question, whose reason should govern the question of whether a purported miracle has occurred?
A second use of the phrase "public reason" is found in Rousseau's Discourse on Political Economy:
Another early use of the phrase "public reason" is found in Thomas Jefferson's Second Inaugural Address:
In What is Enlightenment, Kant introduces the idea of public reason as an answer to a question that might be phrased, "What restrictions on freedom of public discourse will facilitate public enlightenment?" Kant replies:
Here is the point of the history: the idea of public reason is contested, with different theorists offering different conceptions public reason. I am about to give you Rawls's ideas about public reason, but it is very important to realize that Rawls's theory is just one of many, and that new theories of public reason are likely to emerge in the years ahead. Rawls and Public Reason In an early formulation, Rawls explained what he has called the "idea of free public reason":
Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not. Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature. Public Reason and Law How is the idea of public reason relevant to legal theory? One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was recently overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted in Judeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers. One of the interesting features of the idea of public reason is that it provides an argument against what we might call going deep in legal theory. By going deep, I mean making arguments that rely on deep philosophical premises, about ultimate values on the one hand or metaethics and moral psychology on the other. So, for example, it might be argued that utilitarianism (or welfare economics) is an inappropriate source of legal arguments, when the argument relies on a deep utilitarian premises, such as the notion that only utility (e.g. hedonic value or preference satisfaction) is valuable. That premise, it might be argued, goes beyond public reason. The idea of public reason is deeply controversial and the subject of heated debate, but the connections between public reason and law have only recently begun to be explored in depth. Saturday, October 30, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends A Dictionary of Legal Theory by Brian Bix. I've just been browsing through Bix's marvelous volume--a real treat! Here's a brief description:
Download of the Week The Download of the Week is The End of Empire: Dworkin and Jurisprudence in the 21st Century by Brian Leiter. Here is a taste from his blog post on the paper:
Friday, October 29, 2004
Friday Calendar
UCLA School of Law: Lynn Baker, University of Texas Law School of Law, "Lochner's Lessons for Modern Federalism" University of Texas, School of Law: Richard Markovits, "Predatory Investments" & "Predatory Systems Rivalry and Predatory Aftermarket Conduct" Conference Announcement: 28th International Wittgenstein Symposium
Jacob on Aristotle on Justice as a Virtue Bernard E. Jacob (Hofstra University - School of Law) has posted Aristotle and the Graces:
Thursday, October 28, 2004
Dougherty on First Amendment Defenses to the Rights of Publicity Claims F. Jay Dougherty (Loyola Marymount) has posted All the World's Not a Stooge: The 'Transformativeness' Test for Analyzing a First Amendment Defense to a Right of Publicity Claim Against Distribution of a Work of Art (Columbia Journal of Law & the Arts, Vol. 27, No. 1, 2003) on SSRN. Here is the abstract:
Solove on the Digital Person Daniel J. Solove (George Washington University Law School) has posted The Digital Person: Technology and Privacy in the Information Age (Daniel Solove, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION Age, NYU Press, 2004) on SSRN. Here is the abstract:
LoPucki on the Death of Liability Lynn M. LoPucki (University of California, Los Angeles - School of Law) has posted The Death of Liability (Yale Law Journal, October 1996) on SSRN. Here is the abstract:
Post on Naturalism and Normativity John Post has uploaded Naturalism, Reduction and Normativity: Pressing from Below:
Thursday Calendar
Loyola Marymount University, Loyola Law School: Vikram Amar, Professor of Law, University of California, Hastings College of the Law, “The Cheney Case and the Unresolved Lingering Questions About Executive Privilege and the Odd Office of the Vice Presidency” Florida State University, School of Law: Robin Craig, University of Indiana-Indianapolis, "The Stevens-Scalia Principle: Statutory Conversations and the Strict Plain Meaning Approach." UCLA Legal Theory: Heather K. Gerken, Harvard, "Second-Order Dissent" Hofstra School of Law: Edward Stein, Cardozo Law School, "Past and Present Proposed Amendements to the Constitution Regarding Marriage." Oxford Public International Law Discussion Group: Professor Malcolm Evans OBE, Recent Approaches to Torture in English Law. Stanford Law & Economics: Mark Geistfeld (New York University Law School) “Economic Analysis in a Rights-Based Conception of Tort Law” University of Michigan Law & Economics: Mitu Gulati, Georgetown, What Drives Changes in Boilerplate Contracts Saint Louis University, School of Law: Stacey Dogan, The Merchandising Right: Fragile Theory or Fait Accompli? Wednesday, October 27, 2004
Wednesday Calendar
NYU Legal History: Ed Purcell, New York Law School. New from Law & Politics Book Review
RULE OF LAW: THE JURISPRUDENCE OF LIBERTY IN THE SEVENTEENTH AND EIGHTEENTH CENTURIES, by John Phillip Reid. DeKalb, Illinois: Northern Illinois University Press, 2004. 160pp. Cloth $32.00. ISBN: 0-87580-327-X. Reviewed by Craig Hanyan. THE POLITICS OF RIGHTS, 2ND EDITION: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE, by Stuart Scheingold (Foreword by Malcolm Feeley). Ann Arbor: University of Michigan Press, 2004. 280pp. Cloth $22.95. ISBN: 0-472-03005-1. Reviewed by Jeffrey R. Dudas. THE UNITY OF PUBLIC LAW, by David Dyzenhaus (ed). Oxford and Portland Oregon: Hart Publishing, 2004. 520pp. Hardback. £45.00 / $90.00. ISBN: 1-84113-434-1. Reviewed by Upendra Baxi. THE HUMAN RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES, by Stanley S. Herr, Lawrence O. Gostin, and Harold Hongju Koh (eds). New York and Oxford: Oxford University Press, 2003. 578pp. Paperback. $49.95 / £35.00. ISBN: 0199264511. Hardback. $175.00 / £100.00. ISBN: 0198267797. Reviewed by Dr Susan C. Breau. AN AMERICAN TRAVESTY: LEGAL RESPONSES TO ADOLESCENT SEX OFFENDING, by Franklin E. Zimring. Chicago: University of Chicago Press, 2004. 216pp. Cloth. $29.00. ISBN: 0-226-98357-9. Reviewed by Mark Chaffin. Tuesday, October 26, 2004
Boettke on Hayek & Market Socialism Check out Hayek and Market Socialism: Science, Ideology, and Public Policy by Peter J. Boettke over at mises.org. Leiter on Dworkin Brian Leiter's keynote address (from the inaugural conference of the Rutgers Institute for Law and Philosophy last May) is finally available at SSRN. You must read this--even if you disagree with Leiter! The title is The End of Empire: Dworkin and Jurisprudence in the 21st Century. Here is a taste from his blog post on the paper:
Gilreath on the Technicolor Constitution Shannon D. Gilreath (Wake Forest University - School of Law) has posted The Technicolor Constitution: Popular Constitutionalism, Ethical Norms, and Legal Pedagogy (Texas Journal on Civil Liberties & Civil Rights, Vol. 9, No. 22, 2003) on SSRN. Here is the abstract:
Tuesday Calendar
Lewis & Clark School of Law: Jennifer Johnson, Wall Street Meets the Wild West: Bringing Law and Order to Securities Arbitration. Oxford Intellectual Property Research Centre: Dev Gangjee, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: The Name Blame Game (or Why are Geographical Indications so Controversial?)” Monday, October 25, 2004
Weekend Update On Saturday, the Download of the Week was Humanitarian Intervention as a Perfect Duty. A Kantian Argument by Carla Bagnoli and the Legal Theory Bookworm recommended Facts, Values, and Norms: Essays toward a Morality of Consequence by Peter Railton. Sunday's Legal Theory Lexicon entry was on Utilitarianism. And the Legal Theory Calendar previews this weeks talks and conferences. Monday Calendar
At Stanford's Center for Internet and Socienty (CIS), Eugene Volok presents Crime-Facilitating Speech. Columbia Law & Economics: Professor Jennifer Arlen, New York University, School of Law, "Contracting Over Malpractice Liability". Hofstra, School of Law: Jennifer Gordon, Fordham Law School, “The Best Labor Law in America: The United Farm Workers, the Agricultural Labor Relations Act, and Reflections on the Reform of the NLRA.” Oxford Moral Philosophy Seminar: Robert Audi, Notre Dame. New York University, School of Law: Mark Tushnet (Visiting from Georgetown), Our Perfect Constitution. UCLA School of Law: Sam Thompson, UCLA School of Law, "How Will the Tax Policies of Bush & Kerry Affect Economic Growth?" Conference Announcement: Moral Particularism at Canterbury
Epstein versus Levinson Over at Legal Affairs, Richard Epstein & Sandy Levinson debate Should Colorado split its electoral votes?. Sunday, October 24, 2004
Legal Theory Calendar
At Stanford's Center for Internet and Socienty (CIS), Eugene Volok presents Crime-Facilitating Speech. Columbia Law & Economics: Professor Jennifer Arlen, New York University, School of Law, "Contracting Over Malpractice Liability". Hofstra, School of Law: Jennifer Gordon, Fordham Law School, “The Best Labor Law in America: The United Farm Workers, the Agricultural Labor Relations Act, and Reflections on the Reform of the NLRA.” Oxford Moral Philosophy Seminar: Robert Audi, Notre Dame. New York University, School of Law: Mark Tushnet (Visiting from Georgetown), Our Perfect Constitution. UCLA School of Law: Sam Thompson, UCLA School of Law, "How Will the Tax Policies of Bush & Kerry Affect Economic Growth?"
Lewis & Clark School of Law: Jennifer Johnson, Wall Street Meets the Wild West: Bringing Law and Order to Securities Arbitration. Oxford Intellectual Property Research Centre: Dev Gangjee, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: The Name Blame Game (or Why are Geographical Indications so Controversial?)”
NYU Legal History: Ed Purcell, New York Law School.
Loyola Marymount University, Loyola Law School: Vikram Amar, Professor of Law, University of California, Hastings College of the Law, “The Cheney Case and the Unresolved Lingering Questions About Executive Privilege and the Odd Office of the Vice Presidency” Florida State University, School of Law: Robin Craig, University of Indiana-Indianapolis, "The Stevens-Scalia Principle: Statutory Conversations and the Strict Plain Meaning Approach." UCLA Legal Theory: Heather K. Gerken, Harvard, "Second-Order Dissent" Hofstra School of Law: Edward Stein, Cardozo Law School, "Past and Present Proposed Amendements to the Constitution Regarding Marriage." Oxford Public International Law Discussion Group: Professor Malcolm Evans OBE, Recent Approaches to Torture in English Law. Stanford Law & Economics: Mark Geistfeld (New York University Law School) “Economic Analysis in a Rights-Based Conception of Tort Law” University of Michigan Law & Economics: Mitu Gulati, Georgetown, What Drives Changes in Boilerplate Contracts Saint Louis University, School of Law: Stacey Dogan, The Merchandising Right: Fragile Theory or Fait Accompli?
UCLA School of Law: Lynn Baker, University of Texas Law School of Law, "Lochner's Lessons for Modern Federalism" University of Texas, School of Law: Richard Markovits, "Predatory Investments" & "Predatory Systems Rivalry and Predatory Aftermarket Conduct" Legal Theory Lexicon: Utilitarianism
What is “utilitarianism”? Just about every law student has some basic familiarity with the idea of utilitarianism, but unless you were a philosophy or economics major, you may have only a fuzzy notion of what this term really means. In this history of moral philosophy, utilitarianism is strongly associated with two historical figures, Jeremy Bentham and John Stuart Mill. Mill’s views are important and deeply interesting, but they are also extremely difficult to sort out properly. Jeremy Bentham, however, provides a wonderful entrée into the world of utilitarian moral and political philosophy. Law students should be especially fond of Bentham, because with only a bit of exaggeration, we can say than Bentham is the original disgruntled law student. Bentham, you see, was highly displeased with William Blackstone’s lectures on law at Oxford University. The common law, Bentham thought, was a disorganized body of rules. Common-law judges irrationally worshipped historical pedigree and had an immoral disregard of the consequences of legal rules. Legal rules, Bentham believed, should be codified, and the codes should be written so as to produce “the Greatest Good, for the Greatest Number.” That is, we should adopt those legal rules that will maximize utility. Consequentialism Utilitarianism is just one member of a more general family of moral theories, which we might call “consequentialist.” Consequentialism is the view that morality is about consequences of decisions. Utilitarianism is a particular form of consequentialism, but not the only form. Consequentialism is sometimes contrasted to deontology, where deontological moral and political theories maintain that there are moral rules or principles, the violation of which cannot be justified on the ground that good consequences would result. Thus, a consequentialist might believe that one may tell lies, break promises, or injure innocent persons in order to accomplish a greater good, whereas a deontologist might believe that such actions are forbidden--even if good consequences will result. Disambiguating Utilitarianism Let’s pause for a moment. It turns out that “utilitarianism,” the term, refers to many different interrelated theories. “Utilitarianism” is ambiguous, and so we need to specify what we mean by utilitarianism by answering some questions:
Eudaimonistic Utilitarianism. But is the good really just a matter of pleasures and pains? Many of Bentham’s critics argued that not all pleasures are good. Would you really want to live your life carrying around a device that constantly stimulated the pleasure center of your brain and suppressed the pain center? Rather than maximize pleasure, we might instead maximize “happiness”—eudaimonia in ancient Greek. Happiness may be related to pleasure, but it includes more abstract satisfactions. Climbing a mountain may involve much more pain than pleasure, but this activity may still contribute to the happiness of the climber. Preference Satisfaction Utilitarianism. But if happiness seems a better candidate for “good” than pleasure, there are difficulties with the proposition that the law should maximize “happiness.” Happiness is notoriously difficult to define, and different persons have different views about what makes for a happy life. Moreover, happiness, like pleasure, is difficult to measure directly. For these reasons and others, some utilitarian theorists (especially economists) substitute “preference” for happiness as the “good” to be maximized. Preferences can be measured in a variety of ways. For example, we can ask individuals to simply rank order their preferences among various states of affairs, giving us an ordinal utility function for the individual. Economists have devised a variety of techniques for translating these rank orderings (1st best, 2nd best, etc.) into numerical values. Thus, we can construct a cardinal utility function for an individual. Because preference-satisfaction is measurable, most economists use a preference-based conception of utility. And because of the influence of economics on legal theory, this form of utilitarianism has had the greatest impact on contemporary legal theory as well. Scope of Decision So let’s assume we have a working conception of utility. Our next question is: What exactly is the decision that is supposed to maximize utility? Is each individual action required to maximize utility? Or is it general rules that we are concerned with? Or principles? Or something else? I am going to call this question, the scope of decision question. Different forms of utilitarianism give different answers to the scope of decision question. Let’s take a quick look at some of the possibilities:
Action B has a 90% chance of producing a utility of 0, and a 10% chance of producing a utility of 100. Since .9*0 +.1*100 = 10, the expected utility of action A is 10. And since 10 > 5, action A has the greater expected utility. Of course, it may turn out that action B produces a utility of zero, but if what counts is expected utility, then this ex post fact is irrelevant to the moral evaluation of action A.
The Self-Defeating Objection Another objection is that utilitarianism may be self-defeating. Suppose that everyone tried to deliberate as a utilitarian. It might turn out that nonetheless they would make decisions that led to bad consequences. For example, some people may be extremely bad at predicting the consequences of their actions. Others may systematically overestimate their own utilities while systematically underestimating those of others. One answer to this objection is famously associated with the British moral philosopher R.M. Hare. Hare proposed a two-level theory of morality. Utilitarianism, Hare argued, operates at the level of detached moral theorizing. Ultimately, an action is deemed good or bad based on its utility. But ordinary moral deliberation, Hare continued, operates at a different level. Ordinary folks should deliberate on the basis of moral rules of thumb, such as keep your promises, don’t steal, and don’t enslave your enemies when you vanquish them. As you might guess, there are many criticisms of two-level theories, but you get the general idea. The Impossibility of Interpersonal Utility Comparisons This one gets very complicated, very fast. So let me just state the general idea. Suppose we are trying to add up individual utilities for everyone in society. How do we come up with values that are truly comparable across persons. That is, how do we know that X amount of my pleasure or happiness or preference satisfaction is equal to Y amount of yours? This problem is especially vexing for economists, and one solution is simply to limit the conclusions of economics to cases that involve making everyone better off—hence obviating the need for interpersonal comparisons. The Demandingness Objections The list of objections goes on and on, but let’s do just one more. It is frequently argued that utilitarianism (especially act utilitarianism) is too demanding. Why? Imagine that it is your day off. You have two choices. You can either read a novel or your can work for Oxfam. If you read a novel, you will produce some positive utility—your enjoyment of the novel. But if you worked for Oxfam, you would save 1.7 starving children in the third world from death. Well, of course, you should work for Oxfam. But the problem is that it will always be the case that I could produce more utility for others if I dedicated my time to helping the least fortunate. Utilitarianism seems to require me to work for Oxfam after work and to stay up as late as I possibly can. In fact, I may be able to maximize utility by neglecting my health and family. If this is true, many would find utilitarianism too demanding and hence implausible.
--Normative law and economics usually assumes that the system of legal rules (as opposed to individual actions or ideal moral rules) provide the relevant scope of decision. --Normative law and economics usually assumes that utilities are to be summed—although this issue is rarely addressed in any detail. --Normative law and economics usually assumes that it is expected utilities, rather than actual utilities, that are to be maximized. Links Saturday, October 23, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Facts, Values, and Norms: Essays toward a Morality of Consequence by Peter Railton. Here a blurb:
Download of the Week The Download of the Week is Humanitarian Intervention as a Perfect Duty. A Kantian Argument by Carla Bagnoli. Here is a taste:
Friday, October 22, 2004
Bibas on Fisher on Plea Bargaining Stephanos Bibas (University of Iowa - College of Law) has posted Pleas' Progress (Michigan Law Review, Vol. 102, 2004) on SSRN. Here is the Abstract:
Yeazell on Brown & the Silent Litigation Revolution Stephen C. Yeazell (University of California, Los Angeles - School of Law) has posted Brown, The Civil Rights Movement, and the Silent Litigation Revolution (Vanderbilt Law Review, 2004) on SSRN. Here is the abstract:
Hasen Replies Richard L. Hasen (Loyola Marymount) has posted The Supreme Court and Election Law: A Reply to Three Commentators (Journal of Legislation, Vol. 31, January 2005) on SSRN. Here is the abstract:
Burke on the Rhetoric of the Endangered Species Act Marcilynn A Burke (University of Houston - Law Center) has posted Klamath Farmers and Cappuccino Cowboys: The Rhetoric of the Endangered Species Act and Why it (Still) Matters (Duke Environmental Law & Policy Forum, Vol. 14, p. 441, 2004) on SSRN. Here is the abstract:
Book Announcement
Mikos on Congress's Shadow & Enforcement of State Law Robert A. Mikos (University of California, Davis - School of Law) has posted Enforcing State Law in Congress's Shadow on SSRN. Here is the abstract:
The Role of Folk Psychology Joshua Knobe (Princeton) has posted The Concept of Intentional Action: A Case Study in the Uses of Folk Psychology:
Friday Calendar
UCLA, School of Law: Julie Greenberg, Thomas Jefferson School of Law, "You Can't Take It with You: Gender Identity Across State Lines" Thursday, October 21, 2004
Event Announcement: Volokh at Stanford
Thursday Calendar
Oxford Public International Law Discussion Group: Chris Sidoti, The Implementation of International Human Rights Standards. Oxford Financial Law Discussion Group: Colin Mayer, The Evolution of Law and Finance in Germany and the UK. Welcome to the Blogosphere . . . . . . to Political Arguments, a blog that focuses on political theory. Alfredo Perez writes:
Call for Papers: The First Decade of Cyberspace Law
Conference Announcement: Corporate Misbehavior & Social Psychology
Wednesday, October 20, 2004
Wednesday Calendar
Oxford Centre for Criminology: Kathleen Daly, Restorative Justice and Sexual Assault. NYU Legal History: Maribel Morey, NYU Law School. Tuesday, October 19, 2004
Stanford Encyclopedia of Philosophy: Game Theory and Ethics Be sure to check out Game Theory and Ethics, a new entry in the Stanford Encyclopedia of Philosophy by Bruno Verbeek and Christopher Morris. Here is a taste:
Bagnoli on Humanitarian Intervention as a Perfect Duty Carla Bagnoli has uploaded Humanitarian Intervention as a Perfect Duty. A Kantian Argument (Nomos, forthcoming). Here is a taste:
Tuesday Calendar
Florida State University, School of Law: Jonathan Adler, Case Western Reserve University, "Wetland Federalism." Oxford Jurisprudence Discussion Group: Dwight Newman, Collectivities as Moral Rights-Holders: Some Conceptual Foundations. Oxford Intellectual Property Research Centre: Leslie Kim Treiger-Bar-Am, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: The Moral Right of Integrity: A Freedom of Expression. UCLA Civil Justice Workshop: Janet Cooper Alexander, Stanford Law School "Procedural Design and Terror Victim Compensation" Monday, October 18, 2004
Weekend Update On Saturday, the Download of the Week was Lochner's Legacy for Modern Federalism: Pierce County v. Guillen as a Case Study by Lynn Baker, and the Legal Theory Bookworm recommended Ethics and the A Priori : Selected Essays on Moral Psychology and Meta-Ethics by Michael Smith. On Sunday, the Legal Theory Lexicon topic was Game Theory & the Prisoner's Dilemma. As usual, the Legal Theory Calendar lists this week's talks, events, and conferences. Conference Announcement: Copyright & Privacy
McLure at Standford's CIS Today
The Boston Globe on the Left Critique of Judicial Review In the Boston Globe, Drake Bennett has a story entitled A really restrained judiciary: Attacking judicial activism isn't just for conservatives anymore. Here is a taste:
Monday Calendar
Hofstra, School of Law: Denise Morgan, New York Law School, “The New Parity Debate: Congress and Rights of Belonging” Oxford Centre for Socio-Legal Studies: Barbara Harris-White, Socio-Legal Approaches to Law and Development: De and Re- Regulating Business in Rural W. Bengal: Capitalism under the Left Front. UCLA School of Law: Eve Darian Smith, UC Santa Barbara – Anthropology, "Great White Hunter: Schwarzenegger & California's Laws and Politics on Indian Gaming" Call for Papers: Sources of Slavery
Conference Announcement: Particularism at Bled
Sunday, October 17, 2004
Legal Theory Calendar
Hofstra, School of Law: Denise Morgan, New York Law School, “The New Parity Debate: Congress and Rights of Belonging” Oxford Centre for Socio-Legal Studies: Barbara Harris-White, Socio-Legal Approaches to Law and Development: De and Re- Regulating Business in Rural W. Bengal: Capitalism under the Left Front. UCLA School of Law: Eve Darian Smith, UC Santa Barbara – Anthropology, "Great White Hunter: Schwarzenegger & California's Laws and Politics on Indian Gaming"
Florida State University, School of Law: Jonathan Adler, Case Western Reserve University, "Wetland Federalism." Oxford Jurisprudence Discussion Group: Dwight Newman, Collectivities as Moral Rights-Holders: Some Conceptual Foundations. Oxford Intellectual Property Research Centre: Leslie Kim Treiger-Bar-Am, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: The Moral Right of Integrity: A Freedom of Expression. UCLA Civil Justice Workshop: Janet Cooper Alexander, Stanford Law School "Procedural Design and Terror Victim Compensation"
Oxford Centre for Criminology: Kathleen Daly, Restorative Justice and Sexual Assault. NYU Legal History: Maribel Morey, NYU Law School.
Oxford Public International Law Discussion Group: Chris Sidoti, The Implementation of International Human Rights Standards. Oxford Financial Law Discussion Group: Colin Mayer, The Evolution of Law and Finance in Germany and the UK. Organised by: Thursday 21 October 2004 at 12:00 – 2pm Speaker: Prof
Julie Greenberg, Thomas Jefferson School of Law, "You Can't Take It with You: Gender Identity Across State Lines" Legal Theory Lexicon: Game Theory & the Prisoner's Dilemma
An Example Ben and Alice have been arrested for robbing Fort Knox and placed in seperate cells. The police make the following offer to each of them. "You may choose to confess or remain silent. If you confess and your accomplice remains silent I will drop all charges against you and use your testimony to ensure that your accomplice gets a heavy sentence. Likewise, if your accomplice confesses while you remain silent, he or she will go free while you get the heavy sentence. If you both confess I get two convictions, but I'll see to it that you both get light sentences. If you both remain silent, I'll have to settle for token sentences on firearms possession charges. If you wish to confess, you must leave a note with the jailer before my return tomorrow morning." This is illustrated by Table One. Ben's moves are read horizontally; Alice's moves read vertically. Each numbered pair (e.g. 5, 0) represents the payoffs for the two players. Ben's payoff is the first number in the pair, and Alice's payoff is the second number. Table One: Example of the Prisoner's Dilemma. ________________________________________Ben __________________________Confess______________Do Not Confess___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| __________Confess___|_____1, 1___________|_____0, 5___________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| _____Alice_____________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ___________Do not___|_____5, 0___________|_____3, 3___________| ___________Confess__|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ Suppose that you are Ben. You might reason as follows. If Alice confesses, then I have two choices. If I confess, I get a light sentence (to which we assign a numerical value of 1). If Alice confesses and I do not confess, then I get the heavy sentence and a payoff of 0. So if Alice confesses, I should confess (1 is better than 0). If Alice does not confess, I again have two choices. If I confess, then I get off completely and a payoff of 5. If I do not confess, we both get light sentences and a payoff of 3. So if Alice does not confess, I should confess (because 5 is better than 3). So, no matter what Alice does, I should confess. Alice will reason the same way, and so both Ben and Alice will confess. In other words, one move in the game (confess) dominates the other move (do not confess) for both players. But both Ben and Alice would be better off if neither confessed. That is, the dominant move (confess) will yield a lower payoff to Ben and Alice (1, 1) than would the alternative move (do not confess), which yields (3, 3). By acting rationally and confessing, both Ben and Alice are worse off than they would be if they both had acted irrationally. The Real World The prisoner's dilemma is not just a theoretical model. Here is an example from Judge Frank Easterbrook's opinion in United States v. Herrera, 70 F.3d 444 (7th Cir. 1995):
Iterated Game As described above, the prisoner's dilemma is a one-shot game. But in the real world, may prisoner's dilemmas involve repeated plays. You can imagine a series of moves, for example:
If you want to get a really good feel for the iterative prisoner's dilemma, go to this website, where you can actually try out various strategies. One more twist. Suppose that this game is finite, i.e. it has a fixed number of moves, e.g. ten. How will Ben and Alex play in the "end game." Ben might reason as follows. If I defect and confess on the tenth move, Alice cannot retaliate on the eleventh move (because there is no eleventh round of play). And Alice might reason the same way, leading both Ben and Alice to confess in the final round of play. But now Ben might think, since it is rational for both of us to defect in the tenth round, I need to rethink my strategy in the ninth round. Since I know that Alice will confess anyway in the tenth round, I might as well confess in the ninth round. But once again, Alice might reason in exactly this same way. Before we know it, both Alice and Ben have decided to defect in the very first round. Conclusion This has been a very basic introduction to the prisoner's dilemma, but I hope that it has been sufficient to get the basic concept across. As a first year law student, you are likely to run into the prisoner's dilemma sooner or later. If you have an interest in this kind of approach to legal theory, I've provided some references to much more sophisticated accounts. Happy modeling! References Here are some links to game theory and prisoner's dilemma resoures on the web: Saturday, October 16, 2004
Legal Theory Bookworm This week, I am recommending some state of the art metaethics, Ethics and the A Priori : Selected Essays on Moral Psychology and Meta-Ethics by Michael Smith. (Cambirdge University Press page is here.) Here's a blurb:
Download of the Week The Download of the Week is Lochner's Legacy for Modern Federalism: Pierce County v. Guillen as a Case Study by Lynn Baker of the University of Texas. Here is a taste:
Friday, October 15, 2004
Law on Ideology & Publication Decisions David S. Law (University of San Diego 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 (University of Cincinnati Law Review, Vol. 73, June 2005) on SSRN. Here is the abstract:
Scheffler on the Value of Equality Samuel Scheffler has uploaded Choice, Circumstance, and the Value of Equality. Here is a taste:
Friday Calendar
Boston University, School of Law: LOCHNER CENTENNIAL CONFERENCE, today and tommorrow. Speakers include: Lynn A. Baker, Jack M. Balkin, Barry Cushman, Pamela S. Karlan, Keith E. Whittington, David E. Bernstein, William E. Forbath, Richard Thompson Ford, Howard Gillman, Joseph W. Singer, Larry Yackle, Gerald Leonard, Wendy Gordon, Daniela Caruso, and Katharine Silbaugh. Papers available online include:
Barry Cushman, Some Varieties and Vicissitudes of Lochnerism Pamela S. Karlan, Contracting the Thirteenth Amendment: Hodges v. United States Keith E. Whittington, Congress Before the Lochner Court University of Texas, ACS: "The 2004 Election and the Future of Judicial Nominations," Moderator: Jordan Steiker, UT (Law), Panelists: A.J. Bellia, Notre Dame (Law); Ernie Young, Harvard (Law); Doug Laycock and Sanford Levinson, UT (Law). Thursday, October 14, 2004
Bascuas on Material Witness Detentions Ricardo J. Bascuas (University of Miami - School of Law) has posted The Unconstitutionality of 'Hold Until Cleared': Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet (Vanderbilt Law Review, April 2005). Here is the abstract:
Keren on Gender and the Parole Evidence Rule Hila Keren (University of California, Berkeley - Center for the Study of Law and Society) has posted Textual Harassment: A New Historicist Reappraisal of the Parol Evidence With Gender in Mind (American University Journal of Gender, Social Policy & the Law, Vol. 13, No. 2, 2004) on SSRN. Here is the abstract:
Neta on Peacocke on Reason Over at Notre Dame Philosophical Reviews, Ram Neta has a Review of Christopher Peacocke's The Realm of Reason. Here is a taste:
Sedgwick on Pippin on Hegel Over at Notre Dame Philosophical Reviews, Sally Sedgwick has a Review of Robert B. Pippin's Hegel on Ethics and Politics Here is a taste:
Feser on Nozick Edward Feser has a new paper entitled On Nozick. Here is a description of the paper from the Independent Review:
Thursday Calendar
Stanford Law & Economics: Allen Ferrell (Harvard Law School), “Mandated Disclosure and Stock Returns: Evidence from the Over-the-Counter Market” University of Michigan, Law & Economics: John de Figueiredo, MIT & Princeton Paying for Politics. Boston University, School of Law: Jill Fisch (Fordham), "Cause for Concern: Loss Causation and the Analyst Scandal." Florida State University, School of Law: Benjamin Zipursky, Fordham University Law School. Topic: "BMW v. Gore: In praise of a New Chestnut." Two by Hurley Two new papers by Susan Hurley:
Conference Announcement: Virtue Epistemology
Wednesday, October 13, 2004
Wenger on Causation & Reparations Kaimipono Wenger (Cravath, Swaine & Moore LLP) has posted Causation and Attenuation in the Slavery Reparations Debate on SSRN. Here is the abstract:
Kersch on the Globalized Judicary Kenneth Kersch (Princeton University - Department of Politics) has posted The Globalized Judiciary and the Rule of Law (The Good Society, Fall 2004) on SSRN. Here is the abstract:
Meyer on Emotion in Justice Judgments Christopher Meyer (Michigan State University - The Eli Broad College of Business and The Eli Broad Graduate School of Management) has posted On the Operation of Emotion in Justice Judgments: There's More Than Unfairness to Injustice on SSRN. Here is the abstract:
Taipale on Security, Privacy, and Technology K. A. Taipale (Center for Advanced Studies in Science and Technology Policy) has posted Technology, Security and Privacy: The Fear of Frankenstein, the Myth of Privacy and the Lessons of King Ludd (Yale Journal of Law and Technology, Vol. 7, December 2004) on SSRN. Here is the abstract:
Wednesday Calendar
NYU Legal History: Jed Shugerman, NYU Golieb Fellow. Northwestern Law & Economics: Laura Beny, University of Michigan, "Do Insider Trading Laws Matter?" Oxford Public International Law Discussion Group: Vaughan Lowe, The Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Tuesday, October 12, 2004
Jacobson on Spinoza on Authority Arthur J. Jacobson (Cardozo Law School) has posted Law Without Authority: Sources of the Welfare State in Spinoza's Tractatus Theologico-Politicus (Cardozo Law Review) on SSRN. Here is the abstract:
Tuesday Calendar
University of Texas, School of Law: Chantal Thomas, "On Constitutional Democracy and Globalization, with Special Attention to International Trade Agreements." UCLA Civil Justice Workshop: Michele Landis Dauber, Stanford Law School, "The War of 1812, September 11th, and the Politics of Compensation." Call for Papers: The Joint Session
Monday, October 11, 2004
Three by Pettit Philip Pettit (Princeton, Politics) has three new papers up on SSRN:
Flaherty on Foreign Relations Law Martin S. Flaherty (Fordham Law School) has posted The Future and Past of U.S. Foreign Relations Law (Law and Contemporary Problems, Vol. 67, 2004) on SSRN. Here is the abstract:
Simon on Rolling Rule Regimes William H. Simon (Stanford Law School) has posted Toyota Jurisprudence: Legal Theory and Rolling Rule Regimes on SSRN. Here is the abstract:
Slobogin on the Civilization of the Criminal Law Christopher Slobogin (University of Florida, Levin College of Law) has posted The Civilization of the Criminal Law (Vanderbilt Law Review, Spring 2005) on SSRN. Here is the abstract:
Ginsburg on Public Availability and Copyright Jane C. Ginsburg (Columbia Law School) has posted The (New?) Right of Making Available to the Public (INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM, ESSAYS IN HONOUR OF WILLIAM R. CORNISH, David Vaver, Lionel Bently, eds., pp. 234-47, Cambridge University Press, 2004) on SSRN. Here is the abstract:
Dorf on the oherentist Case for Representation Reinforcement Michael C. Dorf (Columbia Law School) has posted Putting the Democracy in Democracy and Distrust: The Coherentist Case for Representation Reinforcement on SSRN. Here is the abstract:
Nolan on Comparative Governmental Liability Donal Nolan (University of Oxford - Faculty of Law) has posted Suing the State: Governmental Liability in Comparative Perspective (Modern Law Review, Vol. 67, No. 5, pp. 844-860, September 2004) on SSRN. No abstract available. Lichtman Blogs on Self Help Doug Lichtman of the University of Chicago's Law School is guest blogging on Crescat Sententia. His posts will be on the topic of self help, and here is an excerpt from Self Help: Getting Started, the first in the series:
Justice Thomas's Jurisprudence The Washington Post has a story on Justice Thomas's jurisprudence. Here is a taste:
Monday Calendar
University of Texas, School of Law: Eric Talley, USC Law School, "Corporate Governance, Executive Compensation and Securities Litigation." Loyola Marymount University, Loyola Law School: Larry Zelenak , Professor of Law, Duke Law School, "Framing the Distributional Effects of the Bush Tax Cuts." New York University, School of Law: Frank Upham, Law and Judges in Chinese Rural Society. Oxford Centre for Socio-Legal Studies: Patrick McAuslan, Socio-Legal Approaches to Law and Development: In the Beginning was the Law...An Intellectual Odyssey. UCLA School of Law: Steve Oney, Author, “And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank.” UCLA Legal History: Michael Klarman, Virginia, Brown and Lawrence. Sunday, October 10, 2004
Legal Theory Calendar
University of Texas, School of Law: Eric Talley, USC Law School, "Corporate Governance, Executive Compensation and Securities Litigation." Loyola Marymount University, Loyola Law School: Larry Zelenak , Professor of Law, Duke Law School, "Framing the Distributional Effects of the Bush Tax Cuts." New York University, School of Law: Frank Upham, Law and Judges in Chinese Rural Society. Oxford Centre for Socio-Legal Studies: Patrick McAuslan, Socio-Legal Approaches to Law and Development: In the Beginning was the Law...An Intellectual Odyssey. UCLA School of Law: Steve Oney, Author, “And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank.” UCLA Legal History: Michael Klarman, Virginia, Brown and Lawrence.
University of Texas, School of Law: Chantal Thomas, "On Constitutional Democracy and Globalization, with Special Attention to International Trade Agreements." UCLA Civil Justice Workshop: Michele Landis Dauber, Stanford Law School, "The War of 1812, September 11th, and the Politics of Compensation."
NYU Legal History: Jed Shugerman, NYU Golieb Fellow. Northwestern Law & Economics: Laura Beny, University of Michigan, "Do Insider Trading Laws Matter?" Oxford Public International Law Discussion Group: Vaughan Lowe, The Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
Stanford Law & Economics: Allen Ferrell (Harvard Law School), “Mandated Disclosure and Stock Returns: Evidence from the Over-the-Counter Market” University of Michigan, Law & Economics: John de Figueiredo, MIT & Princeton Paying for Politics. Boston University, School of Law: Jill Fisch (Fordham), "Cause for Concern: Loss Causation and the Analyst Scandal." Florida State University, School of Law: Benjamin Zipursky, Fordham University Law School. Topic: "BMW v. Gore: In praise of a New Chestnut." Jacques Derrida Jacques Derrida, the French philosopher lionized by literary theorists and students of culture, has passed away. I've added a few more links & moved this post to the top of the blog. Links: Legal Theory Lexicon: The Original Position and The Veil of Ignorance
From the Ex Ante Perspective to the Veil of Ignorance Law students quickly learn that law school focuses more about the normative ("Is it a good rule?") than the descriptive ("What is the rule?"). ("Just give me the black letter law!" is a cry in the wilderness!) Once you've learned that lesson, another one quickly follows. (Either it creeps up on you, or perhaps it just hits in one of those glorious a ha moments!) The legal academy (and hopefully your section) is full of different (radically different) perspectives on normative questions about the law. The ex ante/ex post distinction is all about normative perspective. We can look at legal rules ex post (backwards from the present), and ask, "Does this rule provide a fair resolution of this particular controversy?" Of we can look at legal rules ex ante (forward from the present) and ask, "Will the adoption of this rule produce good consequences if applied to similar situations in the future?" The move to the ex ante perspective is the crucial move made by consequentialist legal theories--and in particular, by normative law and economics. But there is another important perspective on legal rules that is not captured by the the distinctin between ex post/ex ante perspective. This alternative perspective is frequently associated with the twentieth century's most important political philosopher, the late John Rawls. Rawls is famous for his book, A Theory of Justice, which argued for two principles of justice (the liberty principle and the difference principle) using a striking thought experiment called "the original position." The basic idea is that principles of justice for the basic structure of society are to be chosen by representative parties behind a veil of ignorance. That is, the representatives are deprived of information about the talents, abilities, and socio-economic status of the parties they represent. Rawls saw the original position as an improved and generalized form of the "state of nature" that Hobbes, Rousseau, and Locke used as the choice situation for the adoption of a social contract. Rawls's basic intuition was that the state of nature allowed morally irrelevant factors--e.g. the strategic advantages of the strong and cunning--to determine the content of the social contract. The point of the veil of ignorance is to filter out these factors, yielding a fair choice situation. Whereas classical social contract theory asks, "What would be chosen in a state of nature?," Rawls asks, "What would be chosen in the original position from behind the veil of ignorance?" Going Behind the Veil, Part One So how do you use the veil of ignorance when doing legal theory? I want to start with a very simple answer to that question (in Part One), then we will introduce some objections and clarifications, and give a more complicated answer (n Part Two). So here goes. "Going behind the veil of ignorance" means performing a thought experiment. You ask yourself: "What legal rule would I choose if I didn't know such and such information." Right away, you see that we must fill in the blank! What information is placed behind the veil of ignorance. Let me give some examples:
(2) The government pays for all lawyers. Some socialist systems provide for this rule. (3) If the plaintiff wins, the defendant pays for both the plaintiff's and the defendant's lawyer, but if the defendant wins, each side pays for its own lawyer. This is the rule that currently prevails under several statutes, e.g. 28 U.S.C. Section 1983. (4) The loser pays for its own lawyer and for the winners lawyer. This is the so-called English rule. Objections The veil of ignorance is a controversial tool. So its worth our while to briefly scan some of the objections to its employment: Back to the Classroom So if you are a theoretically inclined first-year law student, how can you use the veil of ignorance. Here is my suggestion. At least some of the time, when you are reading and thinking about a morally interesting case--one where you say, this case involves questions about fairness--ask yourself the following three questions: (1) ex post, which rule provides the fair resolution of this controversy; (2) ex ante, which rule would produce the best consequences if applied to similar cases in the future, and (3) from behind the veil of ignorance, which rule would I choose if I didn't know whether I was the plaintiff or the defendant? Sometimes, as you begin to answer that third question, you will find yourself interested by the questions as to who is behind the veil of ignorance, what they know, when they decide, and how they deliberate. Spend a few minutes thinking about those questions, and you may find that you have a deeper understanding of the concerns of principle or fairness that are relevant to the case. A cautionary note: The veil of ignorance is controversial. In some classrooms, an attempt to introduce the veil into a classroom discussion will be welcomed; in others, you will draw a withering stare or a dismissive comment. Go with the flow! Saturday, October 09, 2004
Legal Theory Bookworm When I was a law student, Dick Fallon was a brand new member of the Harvard Law School faculty. So it is with special pleasure that I recomment The Dynamic Constitution : An Introduction to American Constitutional Law by by Richard H. Fallon as the choice of the Legal Theory Bookworm. Here is a short description:
Download of the Week The Download of the Week is The Original Meaning of the Recess Appointments Clause by Michael Rappaport. Here's the abstract:
Friday, October 08, 2004
New from Law and Politics Book Reviews
HARD LESSONS: REFLECTIONS ON GOVERNANCE AND CRIME CONTROL IN LATE MODERNITY, by Richard Hil and Gordon Tait (eds). Burlington, VT: Ashgate Publishing Ltd., 2004. 214pp. Cloth £50.00 / $89.95 ISBN: 0-75462216-9. Reviewed by Priscilla H.M. Zotti. MAKING POLICY, MAKING LAW: AN INTERBRANCH PERSPECTIVE, by Mark C. Miller and Jeb Barnes (eds). Washington, D.C.: Georgetown University Press, 2004. 256pp. Paper $26.95. ISBN: 1-58901-025-6. Reviewed by Richard A. Brisbin, Jr. COLONIAL JUSTICE: JUSTICE, MORALITY AND CRIME IN THE NIAGARA DISTRICT, 1791-1849, by David Murray. Toronto: University of Toronto Press, 2003. 297pp. Cloth CDN$55.00 / US$55.00 / £35.00. ISBN: 0-8020-3749-6. Paper CDN$27.95 / US$27.95 / £18.00. ISBN 0-8020-8688-8. Reviewed by Bradley C. Canon. THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM, by David Kennedy. Princeton: Princeton University Press, 2004. 400pp. Cloth $29.95 / £18.95. ISBN 0-691-11686-5. Reviewed by Donald W. Jackson. Friday Calendar
University of Texas, School of Law: Gillian Lester, UCLA, In Defense of Paid Family Leave. Georgetown, Law & Economics: Susan Rose-Ackerman, Yale Law School, "Bilateral Investment Treaties and Foreign Direct Investment." UCLA School of Law: David Hyman, University of Illinois College of Law, "How Kind are Strangers? An Empirical Perspective on the Duty to Rescue." University of Buffalo, School of Law: Henry Schlegel, UB Law, “Law and Economic Change Since World War I,” Commentator: William Greiner, UB Law. Tulane University, Center for Ethics and Public Affairs: Eric Mack, Tulane, "The Instability of Contractualism: Scanlon as Natural Rights Theorist". Update :Lewis & Clark School of Law: Markman v. Westview Instruments: Lessons from a Decade of Experience.” Participants include Mark Lemley (Stanford), Dan Burk (Minn.), Chris Cotropia (Tulane), Tim Holbrook (Chi-Kent), Mike Meurer (BU) and Jay Thomas (Georgetown). Meeting Announcement: Midsouth Philosophy Conference
Thursday, October 07, 2004
Rappaport on the Original Meaning of the Recess Appointments Clause
Conference Announcement: Does File Sharing Hurt Record Sales?: An Economic Inquiry
Conference Announcement & Call for Papers: Nanotechnology: Ethical & Legal Issues
Job Announcement: Princeton University Center for Human Values
Conference Announcement: Law Enforcement & National Security in the Information Age
Conference Reminder: The 2004 Election: What Does it Mean for Campaigns and Governance?
http://lawweb.usc.edu/cslp/conferences/Election_04/election_04.html Schedule:
Thursday Calendar
Harvard University, Philosophy Colloquium: Samuel Scheffler, University of California at Berkeley, Is the Basic Structure Basic? Princeton University, Political Philosophy Colloquium: Nadia Urbinati, Columbia, The Power of Judgment and Democratic Representation. U.C. Berkeley, General Aspects of Law Seminar: Richard Pildes (NYU) The Constitutionalization of Democratic Politics. University of San Diego, School of Law: Ed Larson (University of Georgia). Boston University, Faculty Workshop: Keith Hylton, Church and State: An Economic Analysis, with Yulia Rodionova. University of Michigan, Law & Economics: Margaret Jane Radin, Stanford & Michigan, Regulation by Contract, Regulation by Machine and Regime Change in Intellectual Property: Superseding the Law of the State with the "Law" of the Firm. Vanderbilt University, Legal Theory Workshop: Howard Erichson, Seton Hall Law School, A Typology of Aggregate Settlements. Florida State University, School of Law: Bill Buzbee, Emory University School of Law. Topic: "Westway and the Challenges of Regulatory Fragmentation." Cook & Ludwig on the Social Costs of Gun Ownership Philip J. Cook and Jens Ludwig (Duke University - Terry Sanford Institute of Public Policy and Georgetown University - Public Policy Institute (GPPI)) have posted The Social Costs of Gun Ownership on SSRN. Here is the abstract:
Wednesday, October 06, 2004
Magliocca on the Legal Tender Cases Gerard N Magliocca (Indiana University Purdue University Indianapolis (IUPUI)) has posted Rethinking Implied Power: Lost Lessons from the Legal Tender Cases on SSRN. Here is the abstract:
Tsai on Sacred Visions of Law Robert L. Tsai (University of Oregon - School of Law) has posted Sacred Visions of Law (Iowa Law Review, Vol. 90, 2005) on SSRN. Here is the abstract:
Wednesday Calendar
University of Tennessee, Philosophy: Symposium centered on Jeffrey Stout's "Democracy and Tradition". U.C. Berkeley, Philosophy: Alan Hajek (Australian National University) "Two New Paradoxes For Decision Theory". Tuesday, October 05, 2004
Fennell on Options Lee Anne Fennell (University of Illinois College of Law) has posted Revealing Options (Harvard Law Review, Vol. 118, March 2005) on SSRN. Here is the abstract:
Depoorter & Vanneste on Anticommons Pricing Ben Depoorter & Sven Vanneste (Ghent University School of Law - Center for Advanced Studies in Law and Economics, George Mason University - School of Law and Universiteit Gent) have posted Putting Humpty Dumpty Back Together: Pricing in Anticommons Property Arrangements on SSRN. Here is the abstract:
Tuesday Calendar
UCLA Civil Justice Series: Deborah R. Hensler, Stanford Law School "Money Talk: Searching for Justice Through Compensation for Personal Injury and Death." Vanderbilt University Law School: Edward Cheng, Brooklyn Law School, "Does Frye or Daubert Matter?: An Empirical Study of Scientific Admissibility Standards". Monday, October 04, 2004
Weekend Wrapup On Saturday, the Legal Theory Bookworm recommended Nicola Lacey's new biography of H.L.A. Hart and the Download of the Week was Evidence, Procedure, and the Upside of Cognitive Error by Chris William Sanchirico. On Sunday, the Legal Theory Lexicon topic was Holdings and the Legal Theory Calendar previewed this weeks talks, workshops, and conferences. Seidman on Sovereign Immunity Guy I Seidman (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Origins of Accountability: Everything I know about the Sovereigns' Immunity, I learned from King Henry III (Saint Louis University Law Journal, Vol. 49, No. 2, Winter 2004/2005) on SSRN. Here is the abstract:
Three by Pauwelyn Joost Pauwelyn (Duke University School of Law) has posted three papers on SSRN:
Mialon on the Economics of the Fifth Amendment Hugo M. Mialon (Emory University, Department of Economics) has posted An Economic Theory of the Fifth Amendment on SSRN. Here is the abstract:
Monday Calendar
Princeton University, Program on Public Law: Annelise Riles, Cornell University, School of Law. UCLA School of Law: Manny Klausner, REASON MAGAZINE, "Litigating Racial Preferences After Grutter & Gratz." Sunday, October 03, 2004
Legal Theory Calendar
Princeton University, Program on Public Law: Annelise Riles, Cornell University, School of Law. UCLA School of Law: Manny Klausner, REASON MAGAZINE, "Litigating Racial Preferences After Grutter & Gratz."
UCLA Civil Justice Series: Deborah R. Hensler, Stanford Law School "Money Talk: Searching for Justice Through Compensation for Personal Injury and Death." Vanderbilt University Law School: Edward Cheng, Brooklyn Law School, "Does Frye or Daubert Matter?: An Empirical Study of Scientific Admissibility Standards".
University of Tennessee, Philosophy: Symposium centered on Jeffrey Stout's "Democracy and Tradition". U.C. Berkeley, Philosophy: Alan Hajek (Australian National University) "Two New Paradoxes For Decision Theory".
Harvard University, Philosophy Colloquium: Samuel Scheffler, University of California at Berkeley, Is the Basic Structure Basic? Princeton University, Political Philosophy Colloquium: Nadia Urbinati, Columbia, The Power of Judgment and Democratic Representation. U.C. Berkeley, General Aspects of Law Seminar: Richard Pildes (NYU) The Constitutionalization of Democratic Politics. University of San Diego, School of Law: Ed Larson (University of Georgia). Boston University, Faculty Workshop: Keith Hylton, Church and State: An Economic Analysis, with Yulia Rodionova. University of Michigan, Law & Economics: Margaret Jane Radin, Stanford & Michigan, Regulation by Contract, Regulation by Machine and Regime Change in Intellectual Property: Superseding the Law of the State with the "Law" of the Firm. Vanderbilt University, Legal Theory Workshop: Howard Erichson, Seton Hall Law School, A Typology of Aggregate Settlements. Florida State University, School of Law: Bill Buzbee, Emory University School of Law. Topic: "Westway and the Challenges of Regulatory Fragmentation."
University of Texas, School of Law: Gillian Lester, UCLA, In Defense of Paid Family Leave. Georgetown, Law & Economics: Susan Rose-Ackerman, Yale Law School, "Bilateral Investment Treaties and Foreign Direct Investment." UCLA School of Law: David Hyman, University of Illinois College of Law, "How Kind are Strangers? An Empirical Perspective on the Duty to Rescue." University of Buffalo, School of Law: Henry Schlegel, UB Law, “Law and Economic Change Since World War I,” Commentator: William Greiner, UB Law. Tulane University, Center for Ethics and Public Affairs: Eric Mack, Tulane, "The Instability of Contractualism: Scanlon as Natural Rights Theorist". Update :Lewis & Clark School of Law: Markman v. Westview Instruments: Lessons from a Decade of Experience.” Participants include Mark Lemley (Stanford), Dan Burk (Minn.), Chris Cotropia (Tulane), Tim Holbrook (Chi-Kent), Mike Meurer (BU) and Jay Thomas (Georgetown). Legal Theory Lexicon: Holdings
Introduction It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of the concept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So here we go! Holding, Dicta, and Stare Decisis It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents! Given that court decisions set precedents, the question naturally arises: what is the precedential effect of a decision? The traditional answer to that question is that subsequent courts are bound to follow the holding of a decision, but they are not bound by mere dicta--statements that are "unnecessary to the decision." This is as good a place as any to mention that "dictum" is the singular (one unecessary statement) whereas the word "dicta" is the plural of dictum, meaning two or more such statements. Just a bit more about stare decisis So to understand the idea of a holding, you also must have a basic knowledge of the doctrine of stare decisis, which is just the fancy Latin phrase for "precedent." Here are some very basic points: Two Theories of Holdings In fact, there are two theories of what constitutes the holding of a case. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are: Conclusion The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least two holdings when you read a case. First, look for the true ratio decidendi, the narrowest reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court. And then you might compare the two holdings that emerge from these two inquries. Which is broader? Which is narrower? If you read subsequent cases that discuss this case, then you can ask a further question, "Which holding was recognized by subsequent courts as the the holding of the case?" If you are frequently reader of Legal Theory Blog, you will know that I am a proponent of the formalist view of stare decisis. If you would like to read more about why I think, this surf to my three part series: 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, and Part III: Precedent and Principle. For past and future installments in the Legal Theory Lexicon series, you can surf here. Saturday, October 02, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends A Life of H. L. A. Hart: The Nightmare and the Noble Dream by Nicola Lacey. (The Oxford University Press page is here.) Here's a short description:
Download of the Week The Download of the Week is Evidence, Procedure, and the Upside of Cognitive Error by Chris William Sanchirico. Here is the abstract:
Friday, October 01, 2004
Friday Calendar
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. Picker on the Must-Carry Solution to Windows Bundling Randal C. Picker (University of Chicago Law School) has posted Unbundling Scope-of-Permission Goods: When Should We Invest in Reducing Entry Barriers? (University of Chicago Law Review, 2005) on SSRN. Here is the abstract:
Mialon & Mialon on the Economics of the Fourth Amendment Hugo M. Mialon and Sue H. Mialon (Emory University, Department of Economics and Emory University - Department of Economics) have posted The Economics of the Fourth Amendment: Crime, Search, and Anti-Utopia on SSRN. Here is the abstract:
Jahn & Prufer on the Internet Backbone Market Eric Jahn and Jens Prüfer (University of Frankfurt - Economics and Business Administration Area and University of Frankfurt) have posted Transit versus (Paid) Peering: Interconnection and Competition in the Internet Backbone Market on SSRN. Here is the abstract:
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