Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Monday, February 28, 2005
Monday Calendar
Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia. Hofstra University School of Law: Myriam Gilles, Cardozo Law School, “Opting Out of Class Action Liability”. Loyola Marymount University, Loyola Law School: Douglas Berman, Professor of Law, Ohio State University Moritz College of Law, "Booker: The Future of the U.S. Sentencing Guidlines". NYU Law: Liam Murphy, Concepts of Law. Vanderbilt Law & Economics: Jennifer Arlen, New York University, "Private Contractual Alternatives to Malpractice Liability". Vanderbilt Charney Distinguished Lecture Series: William Schabas, National University of Ireland, Galway, "Genocide and International Law: Darfur, Srebenica and Cambodia". Conference Announcement: European Congress for Analytic Philosophy
Conference Announcement: Self-Knowledge
Sunday, February 27, 2005
Legal Theory Calendar
Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia. Hofstra University School of Law: Myriam Gilles, Cardozo Law School, “Opting Out of Class Action Liability”. Loyola Marymount University, Loyola Law School: Douglas Berman, Professor of Law, Ohio State University Moritz College of Law, "Booker: The Future of the U.S. Sentencing Guidlines". NYU Law: Liam Murphy, Concepts of Law. Vanderbilt Law & Economics: Jennifer Arlen, New York University, "Private Contractual Alternatives to Malpractice Liability". Vanderbilt Charney Distinguished Lecture Series: William Schabas, National University of Ireland, Galway, "Genocide and International Law: Darfur, Srebenica and Cambodia".
Northwestern Empirical Legal Studies: Margaret Brinig, William G. Hammond Distinguished Professor of Law, University of Iowa, "The Effect of Change in Child Custody Standards". Oxford Centre for Socio-Legal Studies: Richard Whitecross, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Citizenship and Belonging: Law and Identity in a Himalayan State. Oxford Intellectual Property Research Centre: Dr Christine Greenhalgh & Dr Mark Rogers, Intellectual Property in the New Millennium: The Use of Intellectual Property by the UK Financial Services Sector.
University College, London, Colloquium in Legal and Social Philosophy: Professor Seana Shiffrin (UCLA), 'What's wrong with compelled association?'. Here is a taste:
Florida State University School of Law: Nancy Staudt, Washington University-St. Louis. George Mason University School of Law: Iliana Ilieva, GMU School of Law Levy Fellow, Law and Economics in Mutualfundland (with D. Bruce Johnsen). George Washington University IP Series: David Nimmer, "Codifying Copyright Comprehensibly". Georgetown Workshop on Transnational Legal Issues: Laurel Terry, Dickinson Law School "WTO, GATS, and the Regulation of Transnational Law Practice". Yale Legal Theory Workshop: Walter Benn Michaels, University of Illinois (English).
Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law: Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : Christopher Tung (Hong Kong), Climate Change Action and Sustainable Development in China. Georgetown International Legal Theory Colloquium: Rosa Ehrenreich Brooks, U. of Virginia School of Law, "Failed States, or The State as Failure?". Legal Theory Lexicon: Textualism
Three Levels of Interpretive Theory I find it helpful to separate out three different “levels” at which theories of legal interpretation can operate: The Plain Meaning of the Text Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.). But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type. An Excursion into Speakers Meaning and Sentence Meaning I may be making a mistake, but I think that textualism is illuminated by an excursion into what is sometimes called speech act theory, and in particular, by looking at the concepts of “speaker’s meaning” and “sentence meaning.” So here goes:
So when I blog, I know that the readers of blogs assign a particular meaning to the word “post,” and I also know that my readers know that I know that they know this blogospheric convention. So I can use the term “post” to refer to blog entries with confidence that my readers will understand what I mean. On the other hand, if I were writing about blogging for an audience that had never encountered a blog, I would probably need to define the term “post,” before I used it, and if I used the term “post” without defining it, then my audience would likely believe I was referring to mail and not blog entries. In other words, when someone speaks or writes for a particular audience on a particular occasion, the speaker or author can take into account what she knows about the audience, what the audience knows about her, but only insofar as the speaker knows that the audience knows what the speaker knows about the audience. Speaker’s meaning can be distinguished from sentence meaning. Sentence meaning is the meaning that an utterance has when the audience is unaware of the speaker’s intentions. When we identify sentence meaning, it is as if we were imaging a sot of generic speaker, who uttered the sentence in a generic context. Or putting this a bit differently, sentence meaning is the meaning we would assign sentences when we know that the speaker can’t assume that we are aware of special conventions about meaning. Legal Texts, Sentence Meaning & Speaker’s Meaning Legal texts are sometimes intended for a timeless, generic readership. The authors of legislation, for example, know that many different actors (judges, lawyers, administrative officials, and ordinary citizens) will read the statute for an extended period of time in a variety of different conditions. Many of these readers will not be able to afford access to analysis of the legislative history of the statute; they will simply read the statute itself. Of course, they will know that the text they are reading is a statute, and they will therefore have a fair amount of knowledge about the likely intended meaning of various terms and phrases. Moreover, the legislature knows that the readers of statutes will have this knowledge. So it might make sense to assume that the speaker’s meaning that should be assigned to a legal text is a special version of the sentence meaning of the text, e.g. legal sentence meaning. Lawyers who counsel citizens and organizations do have the training to analyze legislative history, but can more easily and cheaply discern the plain meaning of a statute than some special meaning that only becomes clear once the legislative history is consulted. Moreover, analysis of legislative history can be quite complex, because some sources of legislative history (e.g. the statements of floor managers) are much more reliable than others (e.g. the statements of opponents of a bill or of the author of a bill). Because of the complexity of statutory interpretation, lawyers are likely to disagree about the meaning of legislative history and to err when predicting how a court will interpret legislative history. The same difficulties that afflict lawyers are plague judges. Moreover, most legal research done for federal judges is done by very young lawyers serving as law clerks. This group usually lacks experience in researching legislative history, and their performance is likely to be highly variable. Moreover, because legislative history will frequently contain many conflicting, ambiguous, and vague statements, it is possible that legislative history is easily subject to manipulation, giving judges the opportunity to support their own policy preferences with evidence of the “intentions of the legislature.” Textualism as a Practical Methodology Even if textualism does not provide the best ideal theory of legal interpretation, it might be the case that textualism does provide the best practical method of interpretation given the capacities of real world judges and officials. Suppose that we want to interpret statutes to achieve the purposes of the legislature. At first blush, it might seem that the best way to do this would be to have courts and officials employ an intentionalist methodology, combing the legislative record for evidence of legislative intent. But as a practical matter, it may turn out that judges aren’t very good at doing this. So it might be the case that real-world judges are more likely to implement legislative purposes by employing a fairly simple plain-meaning approach as methodology for statutory interpretation. And to the extent that legislators know that judges will employ this approach, legislators could draft with the expectation that judges will use a plain-meaning methodology, which presumably would lead to even closer fit between the plain meaning and the achievement of legislative purpose. Conclusion “Textualism” is just one of many approaches to the theory of legal interpretation, but it is an especially good place to begin thinking about issues of interpretation in law. One of the very best ways to become a sophisticated thinker about these issues is to take a really good course in statutory interpretation. Not so long ago, statutory interpretation was considered a dead field, but today there is a tremendous flowering of interesting and exciting scholarship about the interpretation of statutes. I hope that this post has whetted your appetite! Saturday, February 26, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Agency And Answerability: Selected Essays by Gary Watson. Here is a description:
Download of the Week The Download of the Week is Legal Positivism Since H.L.A. Hart by Jules Coleman, . Here is a taste:
Friday, February 25, 2005
Friday Calendar
UCLA School of Law: Mark Lemley, Stanford University School of Law, "Property, Intellectual Property, and Free Riding". University of Texas, School of Law: Ronald J. Mann, UT Law, & Seth Belzley, UT Law student, The Promise of Internet Intermediary Liability. University of Texas, School of Law: Thomas Kohler, Visiting Professor at UT from Boston College, "The Notion of Solidarity and the Secret History of American Labor Law". Oxford Centre for Competition Law & Policy: Sir John Vickers (Chairman, OFT), The abuse of market power. Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law, Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term: Mr. Kent Nnadozie (Nigeria), An International Regime on Access to Biodiversity and Sharing of its Benefits. Bridgeman on Corrective Justice Accounts of Contract Curtis Bridgeman (Florida State University - College of Law) has posted Strict Liability and the Fault Standard in Corrective Justice Accounts of Contract on SSRN. Here is the abstract:
Wendel on Professionalism as Interpretation W. Bradley Wendel (Cornell Law School) has posted Professionalism as Interpretation (Northwestern University Law Review, Vol. 3, p. 99, Spring 2005) on SSRN. Here is the abstract:
Fletcher on Tribal Employment Separation Matthew L.M. Fletcher (University of North Dakota - School of Law) has posted Tribal Employment Separation: Tribal Law Enigma, Tribal Government Paradox, and Tribal Court Conundrum (University of Michigan Journal of Law Reform, Vol. 38, 2005) on SSRN. Here is the abstract:
Thursday, February 24, 2005
Welcome to the Blogosphere . . . to Opinio Juris, a weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics, with Chris Borgen, Julian Ku, and Peggy McGuinness. Bridgeman on Cardozo & Formalism Curtis Bridgeman (Florida State University - College of Law) has posted Allegheny College Revisited: Cardozo, Consideration, and Formalism in Context on SSRN. Here is the abstract:
Thursday Calendar
UCLA Legal Theory Seminar: Jules Coleman, Legal Positivism Since H.L.A. Hart. Here is a taste:
Northwestern Tax Series: Karen Burke, Warren Distinguished Professor of Law, University of San Diego, "Black & Decker's Contingent Liability Shelter: 'A Thing of Grace and Beauty'?". Oxford Public International Law Discussion Group: Robert McCorquodale, The international community and international law-making: towards an inclusive international legal system. Georgetown, Transnational Legal Issues: Bill Bratton, Comparative Corporate Governance. Boston University School of Law: Geoff Miller, NYU, TBA. George Mason University School of Law: Charles Keckler, GMU School of Law Visiting Assistant Professor, Life v. Death: Why Capital Punishment Should Marginally Deter. Conference Announcement: The Constitution in 2020 at Yale
Wednesday, February 23, 2005
Wednesday Calendar
NYU Legal History: Deborah Malamud, An-Bryce Professor of Law, NYU School of Law. Nuffield College, Oxford: Antanas Mockus, Culture and Law Enforcement. UCLA Legal History: Ariela Dubler, Columbia, Immoral Purposes: The Genus of Illicit Sex and the Marriage Cure. Conference Announcement: Robert Merrihew Adams
Schauer on the Practical Dimension of Choosing Our Concept of Law Frederick Schauer (Harvard University - John F. Kennedy School of Government) has posted The Social Constructioon of the Concept of Law: A Reply to Julie Dickson (Oxford Journal of Legal Studies, Vol. 25, 2005) on SSRN. Here is the abstract:
Tuesday, February 22, 2005
Tuesday Calendar
Georgetown Law: Gowri Ramachandran, "Intersectionals and Assimilation: Blurring the Line Between 'Reasonable' Identity Performance Demands and Irrational Discrimination". Lewis & Clark Law: Lydia Loren The Fallacy of the Extra Element. Oxford Taxation Law: Ian Menzies-Conacher, Group Taxation Director, Barclays plc and James Bullock, tax litigation partner, McGrigors, Implications of the judgments of the House of Lords in the Barclays Mercantile and Scottish Provident cases. Oxford Intellectual Property Research Centre: Rainer Moufang, Intellectual Property in the New Millennium: Recent Developments in the Case Law of the European Patent Office Boards of Appeal. Oxford Centre for Socio-Legal Studies: Roger Cotterrell, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Should "Culture" Become a Legal Concept? University of Texas School of Law: John Dzienkowski, Personal Conflicts of Interest. Widener Law School (Delaware campus): Seth Barrett Tillman, Original Understanding of the Orders, Resolutions and Votes Clause -- What James Madison Failed to Learn from the Westminster Parliamentary Tradition--based on A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned & The Domain of Constitutional Delegations under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson. Rossi on a Political Process Bargaining Approach to Antitrust Federalism Jim Rossi (Florida State University - College of Law) has posted Political Bargaining and Judicial Intervention in Constitutional and Antitrust Federalism on SSRN. Here is the abstract:
Charles on Hasen Guy-Uriel E. Charles (University of Minnesota School of Law) has posted Judging the Law of Politics (Michigan Law Review, March 2005) on SSRN. Here is the abstract:
Lipshaw on a Theory of Promise & Contract Jeffrey M. Lipshaw (Indiana University School of Law - Indianapolis) has posted Duty and Consequence: A Non-Conflating Theory of Promise and Contract on SSRN. Here is the abstract:
Berman on the Historical Foundation of Law Harold Berman (Emory University - School of Law) has posted The Historical Foundation of Law (Emory Law Journal, Vol. 54, 2005) on SSRN. Here is the abstract:
Monday, February 21, 2005
Conference Announcement: Action and Values
Monday Calendar
Oxford Moral Philosophy Seminar: Folke Tersman, Stockholm. Stanford The Center for Internet and Society and the Stanford Law and Technology Association: Elizabeth Townsend, CIS Non-residential Fellow, Assessing the Arrival of the Unpublished Public Domain in the Internet Age. Oxford Environmental Law Discussion Group: Dr Liz Fisher & Dr Lucia Zedner, Risk Assessment: Perspectives From Environmental Law and Criminology. University of Texas Law and Economics Workshop: Kate Litvak, UT, "Governance Through Exit: Default Penalties and Walkaway Options in Venture Capital Partnership Agreeements". Vanderbilt University School of Law: Richard Brooks, Yale. Washington & Lee University, School of Law: Michele Goodwin, DePaul University. Three by Arneson Richard Arneson (UCSD Philosophy & USD Law) has posted three new papers:
Garvey on the Heat of Passion Stephen P. Garvey (Cornell Law School) has posted Passion's Puzzle (Iowa Law Review, Vol. 90, 2005) on SSRN. Here is the abstract:
Sunday, February 20, 2005
Legal Theory Calendar
Oxford Moral Philosophy Seminar: Folke Tersman, Stockholm. Stanford The Center for Internet and Society and the Stanford Law and Technology Association: Elizabeth Townsend, CIS Non-residential Fellow, Assessing the Arrival of the Unpublished Public Domain in the Internet Age. Oxford Environmental Law Discussion Group: Dr Liz Fisher & Dr Lucia Zedner, Risk Assessment: Perspectives From Environmental Law and Criminology. University of Texas Law and Economics Workshop: Kate Litvak, UT, "Governance Through Exit: Default Penalties and Walkaway Options in Venture Capital Partnership Agreeements". Vanderbilt University School of Law: Richard Brooks, Yale. Washington & Lee University, School of Law: Michele Goodwin, DePaul University.
Georgetown Law: Gowri Ramachandran, "Intersectionals and Assimilation: Blurring the Line Between 'Reasonable' Identity Performance Demands and Irrational Discrimination". Lewis & Clark Law: Lydia Loren The Fallacy of the Extra Element. Oxford Taxation Law: Ian Menzies-Conacher, Group Taxation Director, Barclays plc and James Bullock, tax litigation partner, McGrigors, Implications of the judgments of the House of Lords in the Barclays Mercantile and Scottish Provident cases. Oxford Intellectual Property Research Centre: Rainer Moufang, Intellectual Property in the New Millennium: Recent Developments in the Case Law of the European Patent Office Boards of Appeal. Oxford Centre for Socio-Legal Studies: Roger Cotterrell, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Should "Culture" Become a Legal Concept? University of Texas School of Law: John Dzienkowski, Personal Conflicts of Interest. Widener Law School (Delaware campus): Seth Barrett Tillman, Original Understanding of the Orders, Resolutions and Votes Clause -- What James Madison Failed to Learn from the Westminster Parliamentary Tradition--based on A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned & The Domain of Constitutional Delegations under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson.
NYU Legal History: Deborah Malamud, An-Bryce Professor of Law, NYU School of Law. Nuffield College, Oxford: Antanas Mockus, Culture and Law Enforcement. UCLA Legal History: Ariela Dubler, Columbia, Immoral Purposes: The Genus of Illicit Sex and the Marriage Cure.
UCLA Legal Theory Seminar: Jules Coleman, Legal Positivism Since H.L.A. Hart. Here is a taste:
Northwestern Tax Series: Karen Burke, Warren Distinguished Professor of Law, University of San Diego, "Black & Decker's Contingent Liability Shelter: 'A Thing of Grace and Beauty'?". Oxford Public International Law Discussion Group: Robert McCorquodale, The international community and international law-making: towards an inclusive international legal system. Georgetown, Transnational Legal Issues: Bill Bratton, Comparative Corporate Governance. Boston University School of Law: Geoff Miller, NYU, TBA. George Mason University School of Law: Charles Keckler, GMU School of Law Visiting Assistant Professor, Life v. Death: Why Capital Punishment Should Marginally Deter.
UCLA School of Law: Mark Lemley, Stanford University School of Law, "Property, Intellectual Property, and Free Riding". University of Texas, School of Law: Ronald J. Mann, UT Law, & Seth Belzley, UT Law student, The Promise of Internet Intermediary Liability. University of Texas, School of Law: Thomas Kohler, Visiting Professor at UT from Boston College, "The Notion of Solidarity and the Secret History of American Labor Law". Oxford Centre for Competition Law & Policy: Sir John Vickers (Chairman, OFT), The abuse of market power. Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law, Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term: Mr. Kent Nnadozie (Nigeria), An International Regime on Access to Biodiversity and Sharing of its Benefits. Legal Theory Lexicon: Public and Private Goods
It may be helpful to quickly preview the basic idea. So here goes: A Note on Terminology: "Public Goods" versus "Public Interest" versus "Public Resources." Before we go any further, let's make sure we agree about how we are using the phrase "public good." This is important because the same phrase is used for different purposes in different contexts. So let's stipulate to the following: The Criteria for Public Goods There are two criteria by which public goods and distinguished from private goods. A good is public only if it is both nonrivalrous and nonexcludable. A good is private only if it is both rivalrous and excludable. (We will deal with the mixed cases in just a bit.) "Rivalrousness" is a property of the consumption of a good. Consumption of a good is rivalrous if consumption by one individual X diminished the opportunity of other individuals, Y, Z, etc., to consume the good. Some goods are rivalrous because they are "used up." If I drink a glass of Heitz Martha's Vineyard, then you cannot drink that same glass of wine. If set off a firecracker, you cannot set off the same firecracker. Other goods are rivalrous because of crowding effects. If I am using the free internet terminal at the student lounge, then you cannot use the same time slice of the terminal--because only one person can sit in front of the screen at the same time. "Excludability" is also a property of consumption of a good. It is helpful to distinguish two forms of excludability: (1) excludability through self help, and (2) excludability through law. If I want to exclude you from my land, I can build a fence--the exclusion results from self help. But if I want to exclude you from copying a novel that I've written and I want to make the novel generally available for sale, self help will not work. (It would be ridiculously expensive to hire a guard to monitor each copy or every photocopy machine.) Government, however, can make unauthorized copying a criminal offense or actionable civil wrong, thereby creating exclusion through law. Markets and Government The conventional view is that markets should provide private goods and government should provide public goods. The case for market provision of private goods relies on the idea of Pareto efficiency. The weak Pareto Principle is the simple idea that if some action would make at least one person better off and no one worse off, then that action is good. If we have a private good, e.g. a widget, and a willing buyer and seller, then allowing the sale is Pareto efficient: the buyer prefers the widget to the money and the seller prefers the money to the widget. If we assume that the transaction has no external costs (harms to third parties), then allowing the transaction makes buyer and seller better off and hence is required by the weak Pareto principle. But when we come to public goods, markets simply don't work. Why not? Most simply, because if a good is nonexcludable, then no one will pay for it. Suppose someone goes into the business of cleaning the air with a pollution removal machine. I won't voluntarily pay for this service, because I will be able to breathe the air even if I don't pay. If a private firm offered to defend me against foreign invaders, I won't voluntarily sign on. My individual payment would have a negligible effect on the size of the armed force. If others pay, I don't need to. If others don't pay, then my payment won't do any good. Of course, you will recognize that I am describing the free rider problem, a form of the Prisoner's Dilemma. Because markets cannot provide public goods, governments should. As you might expect, the argument for government provision of public goods and market provision of private goods is controversial. Socialists argue that governments may do a better job of providing private goods, because government planning can create welfare benefits that cannot be realized by markets. Libertarian legal theorists argue that markets can provide most if not all private goods for various reasons, including arguments that nonexcludability can often be overcome by ingenious market solutions. I won't get into either the socialist or the libertarian critique of the argument for market provision of private goods and government provision of public goods, but you should know that these criticisms have been extensively developed. The Expanded Typology: Public, Private, Toll, and Common Pool Goods So far, we have been assuming that excludability and rivalrousness go together and hence that there are only two categories, public goods and private goods. In fact, it is possible to have a good that is rivalrous but nonexcludable or one that is nonrivalrous but excludable. So there are four categories, not two: Table One: Public, Private, Common Pool, Toll, and Club Goods. __________________________Excludable___________Nonexcludable___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Pure___________|_____Common_________| __________Rivalrous_|_____Private________|_____Pool___________| ____________________|_____Good___________|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Club Good______|____________________| ____________________|____________________|_____Pure___________| _______Nonrivalrous_|____________________|_____Public_________| ____________________|_____Toll Good______|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ We've covered the first two categories, but we need to consider categories three and four. So let's do that now. Toll Goods and Intellectual Property A toll good is characterized by nonrivalrous consumption but excludability. Suppose we have a highway in a rural area, where the capacity of the highway would never be approached even if access were free. Nonetheless, use of the highway can be limited by the installation of toll booths. This means that we can charge for access to the highway. Economists call goods that are nonrivalrous but excludable "toll goods." One of the most important applications of the concept of a toll good in legal theory arises in the context of intellectual property. A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. This copy could then be copied by others. Eventually, the "free" copies would dominate the market. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.) Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a toll good. Intellectual property law creates excludability, but not rivalrousness. For more on this, see Water Wells and MP3 Files: The Economics of Intellectual Property. Common Pool Goods and the "Tragedy of the Commons" Common pool goods are rivalrous but non excludable. An example might be the fish resource in those portions of the ocean that are outside national waters (the high seas). This resource is rivalrous, because over fishing can result in a reduction of the stock of fish. But excludability is difficult to establish. Self-help would work for a localized fishing area where the fish population does not range over a large area; in theory a patrol boat could establish a virtual fence. But this solution won't work if the fish population ranges over a wide area of the high seas. Unless some international treaty regime can establish enforceable quotas, the result may be a "tragedy of the commons." Each fisher has an incentive to take the most she can, but the result of all fishers doing this is a depletion in the stock of fish that harms everyone. (Once again, we have a version of the Prisoner's Dilemma.) Club Goods We are almost done, but we have one or two more ideas to pick up. One is the idea of a "club good." A club good is a good where the utility of each individual's consumption of the good is a function of the number of others who consume the good. Take a golf course. If too many people try to use the course simultaneously, then the utility that each derives from the experience goes down. Golfers have to wait for tee times, the course is crowded, and so forth. In other words, there are "crowding" problems. One solution to such problems is to form a "club," which limits the number of persons with the right to use the golf course. Private Goods and the "Tragedy of the Anticommons" And finally, we should note the flip side of the tragedy of the commons, dubbed by Frank Michelman, "the tragedy of the anticommons." This refers to the phenomenon where ownership in a resource has been divided among so many owners that transaction costs and holdout problems prevent Pareto efficient transactions from occurring. For example, when property was "privatized" in the former Soviet Union, a single apartment building might end up with many, many fractional owners, including ownership interests by various government entities and the residents of the building. In theory, every owner must agree before a transaction involving the building could take place. Given the large number of owners, the costs of completing the transaction and paying off the holdouts (those who withhold consent in order to increase their share of the profits) can make the transaction economically unattractive. This is a case where the market is incapable of efficiently allocating a pure private good. Conclusions The public/private goods distinction is basic to a variety of topics in legal theory. Whenever you encounter a resource allocation problem, ask yourself, "Is this resource a public, private, toll, or common pool good?" And then ask, "Could a change in the legal rules governing this resource change its status?" Although the terminology may be daunting at first, they are really very simple and straightforward. Saturday, February 19, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Contract Theory by by Patrick Bolton & Mathias Dewatripont. Here is a description:
Download of the Week The Download of the Week is The Class Defense by Assaf Hamdani & Alon Klement. Here's the abstract:
Friday, February 18, 2005
Schauer on an Institutional First Amendment Frederick Schauer (Harvard University - John F. Kennedy School of Government) has posted Towards an Institutional First Amendment (Minnesota Law Review, Vol. 89, 2005) on SSRN. Here is the abstract:
Claeys on Public Use Eric Claeys (Saint Louis University - School of Law) has posted Public-Use Limitations and Natural Property Rights (Michigan State Law Review, Vol. 2004, No. 4, December 2004) on SSRN. Here is the abstract:
Coleman at Loyola (Los Angeles) Jules Coleman of Yale is currently a visiting Scholar-in-Residence at Loyola Law School, Los Angeles. Yesterday, Feb. 17, he presented a paper entitled "Legal Positivism Since H.L.A. Hart." On Tuesday, Feb. 22, he will present a paper on the relationship between law and economics reasoning and moral theory entitled "The Grounds of Welfare". Friday Calendar
UCLA School of Law: Iman Anabtawi, UCLA School of Law, "Explaining Pay Without Performance: The Tournament Alternative" Thursday, February 17, 2005
New Issue of Theoretical Inquiries in Law
Thursday Calendar
Princeton Public Law Colloquium: Roundtable, Civil Liberties and the State in Twentieth Century America: A Discussion of Ken I. Kersch's Constructing Civil Liberties: Discontinuties in the Development of American Constitutional Law (Cambridge University Press, 2004). Panel includes William J. Novak, Visiting Professor of Law at New York University Law School and Associate Professor of History at the University of Chicago and Theodore J. Lowi, the John L. Senior Professor of American Institutions at Cornell University, and Kenneth Kersch, with Keith Whittington, moderating. Boston University School of Law: Mark Tushnet (Georgetown, visiting at Harvard), "Strong Rights, Weak Courts: Judicial Review and Social Welfare Rights in Comparative Constitutional Law". Florida State University College of Law: Honorable Bruce Selya, U.S. Court of Appeals for the First Circuit (Jurist-in-Residence during week of Feb. 14) “Quo Vadis? Federal Criminal Sentencing after Booker and Fanfan”. George Mason University: Todd Zywicki, GMU School of Law visiting Georgetown Law, Obesity and Advertising Policy (with Debra Holt and Maureen K. Ohlhausen). George Washington, Intellectual Property Series: Glynn Lunney, Tulane University Law School, "Patents and Growth: Empirical Evidence from the States". Stanford Law & Economics: Keith Hylton (School of Law, Boston University), "Church and State: An Economic Analysis". University of Michigan Law & Economics: Assaf Hamdani, Bar-Iian University, The Class Defense. Wednesday, February 16, 2005
Angner on Hayek Erik Angner has posted An Attempt to Understand the Nature and Origin of Hayek's Transformation. Here is a taste:
Book Announcement: The Ethics of Identity
Wednesday Calendar
Tuesday, February 15, 2005
ACS Project The ACS emailed the following:
New from Law & Politics Book Review
SOCIAL CITIZENSHIP AND WORKFARE IN THE UNITED STATES AND WESTERN EUROPE: THE PARADOX OF INCLUSION, by Joel F. Handler. Cambridge: Cambridge University Press, 2004. 330pp. Hardback. £55.00 / $85.00 ISBN: 0521833701. Paper. £19.99 / $31.99. ISBN: 0521541530. Reviewed by Gretchen Ritter. THE SUPREME COURT OF NOVA SCOTIA, 1754-2004: FROM IMPERIAL BASTION TO PROVINCIAL ORACLE., by Philip Gerard, Jim Phillips, and Barry Cahill (eds). University of Toronto Press for the Osgoode Society for Canadian Legal History, 2004. 550pp. Hardcover. CDN$75.00 / US$75.00 / £48.00. ISBN: 0802080219. Reviewed by Thomas M.J. Bateman. THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE, by Daniel J. Solove. New York: New York University Press, 2004. 288pp. Cloth $29.95. ISBN: 0-8147-9846-2. Reviewed by Philip A. Dynia. Tuesday Calendar
Georgetown Law: Lama Abu Odeh, "The Politics of (Mis)recognition: Teaching Islamic Law in the U.S." Oxford Jurisprudence Discussion Group: Oonagh Reitman, Rethinking Multiculturalism and Feminism. Loyola Marymount Univesity, Loyola Law School: Jules Coleman,* Wesley Newcomb Hohfeld Professor of Jurisprudence and Philosophy at Yale Law School, "Legal Positivism Since H.L.A. Hart". Northwestern University, Empirical Legal Studies Colloquium: Laura Beth Nielsen, Research Fellow, American Bar Foundation, "Rights and Realities: A Sociological Model of Employment Discrimination Claiming". Monday, February 14, 2005
Frankfurt on Bullshit The New York Times has a nice piece, A Princeton Philosopher's Unprintable Essay Title, by Peter Edidin. Here's a taste:
Monday Calendar
Oxford Moral Philosophy Seminar: Nick Bostrom, Oxford. Hofstra University, School of Law: Robert Bennett, Northwestern University Law School “Evaluating the Electoral College: The Nationwide Popular Vote Alternative”. NYU Law School: John Duffy (Visiting from George Washington University Law School) Intellectual Property as Natural Monopoly: The Allocation of Partial Private Property Rights. Northwestern International Law Colloquium: Richard Steinberg, Professor of Law, University of California at Los Angeles, "The Transformation of Trading States in Europe" UCLA School of Law: Judith Daar, Visiting, UCLA School of Law, "Reproductive Technologies and the Quest for Perfectionism: On Selecting Gender, Genes and Gametes" University of Texas Law: Clayton Gillette, New York University, "Political Economy of International Sales Law"(co-authored with Robert E. Scott). Legal Theory Calendar
Oxford Moral Philosophy Seminar: Nick Bostrom, Oxford. Hofstra University, School of Law: Robert Bennett, Northwestern University Law School “Evaluating the Electoral College: The Nationwide Popular Vote Alternative”. NYU Law School: John Duffy (Visiting from George Washington University Law School) Intellectual Property as Natural Monopoly: The Allocation of Partial Private Property Rights. Northwestern International Law Colloquium: Richard Steinberg, Professor of Law, University of California at Los Angeles, "The Transformation of Trading States in Europe" UCLA School of Law: Judith Daar, Visiting, UCLA School of Law, "Reproductive Technologies and the Quest for Perfectionism: On Selecting Gender, Genes and Gametes" University of Texas Law: Clayton Gillette, New York University, "Political Economy of International Sales Law"(co-authored with Robert E. Scott).
Georgetown Law: Lama Abu Odeh, "The Politics of (Mis)recognition: Teaching Islamic Law in the U.S." Oxford Jurisprudence Discussion Group: Oonagh Reitman, Rethinking Multiculturalism and Feminism. Loyola Marymount Univesity, Loyola Law School: Jules Coleman,* Wesley Newcomb Hohfeld Professor of Jurisprudence and Philosophy at Yale Law School, "Legal Positivism Since H.L.A. Hart". Northwestern University, Empirical Legal Studies Colloquium: Laura Beth Nielsen, Research Fellow, American Bar Foundation, "Rights and Realities: A Sociological Model of Employment Discrimination Claiming".
Princeton Public Law Colloquium: Roundtable, Civil Liberties and the State in Twentieth Century America: A Discussion of Ken I. Kersch's Constructing Civil Liberties: Discontinuties in the Development of American Constitutional Law (Cambridge University Press, 2004). Panel includes William J. Novak, Visiting Professor of Law at New York University Law School and Associate Professor of History at the University of Chicago and Theodore J. Lowi, the John L. Senior Professor of American Institutions at Cornell University, and Kenneth Kersch, with Keith Whittington, moderating. Boston University School of Law: Mark Tushnet (Georgetown, visiting at Harvard), "Strong Rights, Weak Courts: Judicial Review and Social Welfare Rights in Comparative Constitutional Law". Florida State University College of Law: Honorable Bruce Selya, U.S. Court of Appeals for the First Circuit (Jurist-in-Residence during week of Feb. 14) “Quo Vadis? Federal Criminal Sentencing after Booker and Fanfan”. George Mason University: Todd Zywicki, GMU School of Law visiting Georgetown Law, Obesity and Advertising Policy (with Debra Holt and Maureen K. Ohlhausen). George Washington, Intellectual Property Series: Glynn Lunney, Tulane University Law School, "Patents and Growth: Empirical Evidence from the States". Stanford Law & Economics: Keith Hylton (School of Law, Boston University), "Church and State: An Economic Analysis". University of Michigan Law & Economics: Assaf Hamdani, Bar-Iian University, The Class Defense.
UCLA School of Law: Iman Anabtawi, UCLA School of Law, "Explaining Pay Without Performance: The Tournament Alternative" Sunday, February 13, 2005
Legal Theory Lexicon: Concepts and Conceptions
This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory. Essentially Contested Concepts So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues. A quick aside. Sometimes, when there is this sort of disagreement, we want to say, "Ah, you and I are referring to different concepts." If by "cause," you mean "legal cause," whereas I use "cause" as a synonym for "cause in fact," then we are using the same word to refer to two different concepts. Back to "good." But in the case of "good," we seem to be using the same concept. I think that the good really is human flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept. Gallie thought that some concepts were essentially contested. That is, Gallie believed that some concepts were such that we would never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application. Two Uses of the Concept/Conception Distinction
Dworkin on Concepts and Conceptions in Legal Reasoning Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts. References Saturday, February 12, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Lawlessness and Economics : Alternative Modes of Governance (The Gorman Lectures) by Avinash K. Dixit. Here is a description:
Download of the Week The Download of the Week is "The Expressive Power of Adjudication" by Richard McAdams. Here is the abstract:
Friday, February 11, 2005
Call for Papers: Respect
Friday Calendar
Ackerman on the Next Supreme Court Vacancy Bruce Ackerman has a piece entitled The Art of Stealth on the London Review of Books. Here is a taste:
Ethics Online The most recent issue of Ethics, (Volume 115, Number 2, January 2005) is now available at http://www.journals.uchicago.edu/cgi-bin/contents?ET+v115n2 (password required to download articles). Event Announcement: William D. Hamilton Memorial Lecture
Thursday, February 10, 2005
Thursday Calendar
UCLA Legal Theory Workshop: Claire Finkelstein, University of Pennsylvania Law School, Responsibility for Unintended Consequences. Yale Legal Theory Workshop: Richard Primus, University of Michigan (Law), "The Civil War in Constitutional Interpretation: Race, Regime Change, and the Civil Rights Cases". Boston University School of Law: Jack Beermann (with Carl Bogus), TBA. Florida State University College of Law: Eric Helland, Claremont-McKenna (economics), Reputational Penalties and the Merits of Class Action Securities Litigation. Lipshaw on the Theory of Contract & Promise Jeffrey Lipshaw (Indiana University School of Law - Indianapolis) has posted Duty and Consequence: A Non-Conflating Theory of Contract and Promise on SSRN. Here is the abstract:
Wednesday, February 09, 2005
Conference Announcement: McDowell between Wittgenstein and Hegel
Adler on Conservation Cartels Jonathan H. Adler (Case Western Reserve University School of Law) has posted Conservation Cartels on SSRN. Here is the abstract:
Wednesday Calendar
Segev on Mistake Re'em Segev has posted Justification, Rationality and Mistake: Mistake of Law is no Excuse? It Might be a Justification (Law and Philosophy, 2005) on SSRN. Here is the abstract:
Safrin on Hyperownership Sabrina Safrin (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life (American Journal of International Law, Vol. 98, No. 641, October 2004) on SSRN. Here is the abstract:
Tuesday, February 08, 2005
New Models for Training Legal Academics? Over at the Volokh Conspiracy, Randy Barnett writes:
Hasen on the Kevin Shelley Mess Election-law superblogger Rick Hasen has a very thoughtful editorial at the Los Angeles Times. Here is a taste:
Sandefur on Public Use Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project) has posted Public Use: Returning to the Sources on SSRN. Here is the abstract:
Ammori on the Sinclair Blogstorm Marvin Ammori (Yale Law School) has posted Shadow Government: Private Regulation, Free Speech, and Lessons from the Sinclair Blogstorm on SSRN. Here is the abstract:
Page Limits for Law Review Articles The ACS Blog reports that the flagship law reviews of Columbia, Cornell, Duke, Georgetown, Harvard, Michigan, Stanford, Texas, U. Penn., Virginia, and Yale have joined the following statement regarding the growing length of legal scholarship:
Monday, February 07, 2005
Final Call for Papers: Joint Session
Sunday, February 06, 2005
Legal Theory Calendar
UCLA School of Law: Lynn LoPucki, UCLA School of Law, "The Corruption of US Bankruptcy Courts by the Competition for Big Cases". Columbia Law & Economics: Kathryn M. Zeiler, Georgetown University Law Center, "Asymmetries in Exchange Behavior Incorrectly Interpreted as Evidence of Prospect Theory," Co-authored with Charles R. Plott.
UCLA Legal Theory Workshop: Claire Finkelstein, University of Pennsylvania Law School, Responsibility for Unintended Consequences. Yale Legal Theory Workshop: Richard Primus, University of Michigan (Law), "The Civil War in Constitutional Interpretation: Race, Regime Change, and the Civil Rights Cases". Boston University School of Law: Jack Beermann (with Carl Bogus), TBA. Florida State University College of Law: Eric Helland, Claremont-McKenna (economics), Reputational Penalties and the Merits of Class Action Securities Litigation.
Legal Theory Lexicon: Personhood
Persons and Humans The terms "human" and "person" have related meanings, but as used by most legal theorists, these terms are distinct. Here's one definition of "human":
Consider, for example, the aliens Chewbacca or Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe. Let us stipulate then, that term "human" is a biological term, which refers to all the members of the species homo sapiens and that the term "person" is a normative term, which refers to a moral and/or legal status that creatures or other bearers of human-like capacities can share with normal adult humans. The categories of human and person are involved in some of the most contentious debates in moral, political, and legal theory. Prime among these is the abortion debate. One move that can be made in the abortion debate is simply to deny the distinction between human and person. So it might be the case that the relevant moral and legal category is "human person" and that all members of the species homo sapiens members of this category. Or it might be argued that "human" and "person" are morally and legally distinction categories. If so, it is possible that "fetuses" are unborn humans, but that they are not yet "persons." Legal, Moral, and Natural Persons So far, I have been treating the category of personhood or persons as a single category, but this need not be the case. We can distinguish between three kinds of persons--natural, moral, and legal. It is possible that the not all legal persons are natural persons and vice versa; the category of moral persons is clearly distinct from that of legal persons, but might be considered identical with the category of natural persons. Examples will help. Corporations and governmental units are legal persons--they have legal rights and responsibilities and can sue and be sued, but we do not say that corporations are natural or moral persons. A corporation is not a natural person, because it is nonnatural in the relevant sense. Corporations are artificial or nonnatural because they are the creations of the law. Likewise, all humans are usually considered "natural persons," but not all humans have the full bundle of rights and responsibilities associated with legal persons. For example, infants and incompetents may be unable to sue in their own name and may not bear full legal responsibility for their acts. Legal Personhood The classical discussion of the idea of legal personhood is found in John Chipman Gray's The Nature and Sources of the Law. He began his famous discussion, "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." The question whether an entity should be considered a legal person is reducible to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties. The particular bundle of rights and duties that accompanies legal personhood varies with the nature of the entity. Both corporations and natural persons are legal persons, but they have different sets of legal rights and duties. Nonetheless, legal personhood is usually accompanied by the right to own property and the capacity to sue and be sued. Gray reminds us that inanimate things have possessed legal rights at various times. Temples in Rome and church buildings in the middle ages were regarded as the subject of legal rights. Ancient Greek law and common law have even made objects the subject of legal duties. In admiralty, a ship itself becomes the subject of a proceeding in rem and can be found "guilty." Christopher Stone recently recounted a twentieth-century Indian case in which counsel was appointed by an appellate court to represent a family idol in a dispute over who should have custody of it. The most familiar examples of legal persons that are not natural persons are business corporations and government entities. Gray's discussion was critical of the notion that an inanimate thing might be considered a legal person. After all, what is the point of making a thing-- which can neither understand the law nor act on it--the subject of a legal duty? Moreover, he argued that even corporations are reducible to relations between the persons who own stock in them, manage them, and so forth. Thus, Gray insisted that calling a legal person a "person" involved a fiction unless the entity possessed "intelligence" and "will." Can we say that corporations possess "intelligence" and "will"? The answer to that question is controversial among legal theorists. The orthodox position is that the corporation itself is a legal fiction; the humans who make up the corporation may have intelligence and will, but the corporation itself does not. But some might argue that the properties of the corporation are not reducible to the properties of the individuals who make up the corporation. Corporations may have "a mind of their own," at least according to some theorists. Moral Personhood "Legal personhood" is controversial, but "moral personhood" is one of the most contested ideas in contemporary legal, moral, and political theory. This large debate is not easy to summarize, but one of the crucial issues concerns the criteria for moral personhood. What attributes would make some life form (or even a robot) a moral person? Here are some of the possibilities: Conclusion "Personhood" is a fundamental notion for legal theorists. "Legal personhood" plays an important role in legal doctrine, and "moral personhood" plays a fundamental role in moral and political theory. The purpose of this post has been to give you a very rough sense of some of the issues that surround these concepts. More reading can be found in the bibliography. Bibliography Saturday, February 05, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends The Limits of International Law by Jack L. Goldsmith, Eric A. Posner. Here is a brief description:
Download of the Week The Download of the Week is The Trademark Function of Authorship by Greg Lastowka. Here is the abstract:
Friday, February 04, 2005
Allan Farnsworth NorthJersey.com reports:
Friday Calendar
UCLA School of Law: Adam Winkler, UCLA School of Law, "Fatal in Theory and Strict in Fact: Debunking the Myth of Strict Scrutiny". Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law:
Prof. Irene Dankleman (The Netherlands), Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : The Challenge of Gender: Towards a Common Future. Vanderbilty University School of Law, Charney Distinguished Lecture Series: Anne-Marie Slaughter, Woodrow Wilson School, Princeton University, "Rethinking the War on Terror". Kolm on Charity & Pareto Serge-Christophe has posted International justice and the basic needs principle. Here is the abstract:
Copp on International Justice David Copp has posted International justice and the basic needs principle. Here is a taste:
Brams on Fair Division S. J. Brams has posted Fair division. Here is a taste:
Barbanel & Brams on Slicing the Pie J. B. Barbanel and S.J. Brams have posted Cutting a pie is not a piece of cake. Here is the abstract:
Smith on the Possible Absurdity of Life Michael Smith (RSSS, ANU) has posted Is That All There Is?. Here is a taste:
Thursday, February 03, 2005
Thursday Calendar
Florida State University, College of Law: Gregory Keating, University of Southern California, Abusing "Duty". Fordham University School of Law: Deborah W. Denno, Professor of Law, Fordham, "The Legal Link Between Genetics and Crime: Vile or Viable?". Oxford Public International Law Discussion Group: Dr Andrew Hurrell, International Law and International Relations: The State of the Art and the State of the World. Stanford Law & Economics: Michael L. Katz (School of Business, University of California, Berkeley) & Howard A. Shelanski (School of Law, University of California, Berkeley), "Moving Targets: Merger Policy in the Face of Technological Change" University of Michigan, Cyberlaw & Economics: Paul Resnick, Michigan School of Information, Calculating Error Rates for Filtering Software & Does Pornography-Blocking Software Block Access to Health Information on the Internet. University of Texas School of Law Constitutional & Legal Theory Colloquium: Larry Sager, UT, "Equal Liberty" Vanderbilt Legal Theory Workshop: Ann-Marie Slaughter, Woodrow Wilson School, Princeton University. Hathaway on a Theory of International Law Oona A. Hathaway (Yale University - Law School) has posted Between Power and Principle: An Integrated Theory of International Law (University of Chicago Law Review, Vol. 71, May 2005) on SSRN. Here is the abstract:
Tillman on Lawson on the Orders, Resolutions and Votes Clause Seth Barrett Tillman (United States Court of Appeals, Third Circuit) has posted The Domain of Constitutional Delegations under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson on SSRN. Here is the abstract:
Krishna & Morgan on Contracting for Information Vijay Krishna and John Morgan (Pennsylvania State University, University Park - Department of Economics and University of California, Berkeley - Economic Analysis & Policy Group) have posted Contracting for Information under Imperfect Commitment on SSRN. Here is the abstract:
Backer on Judicial Interpretation of Fundamental Rights Larry Cata Backer (Pennsylvania State University - The Dickinson School of Law) has posted Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts of America, and European Alternatives (Tulsa Law Journal, Vol. 36, No. 1, p. 117, Fall 2000) on SSRN. Here is the abstract:
Gathii on the International Law of Governmental Legitimacy James Thuo Gathii (Albany Law School) has posted NeoLiberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy (Michigan Law Review, Vol. 98, p. 1996, 2000) on SSRN. Here is the abstract:
Wednesday, February 02, 2005
Lastowka on Trademark & Authorship F. Gregory Lastowka (Rutgers, The State University of New Jersey - School of Law-Camden) has posted The Trademark Function of Authorship on SSRN. Here is the abstract:
The Legal Theory Canon Over at the Volokh Conspiracy, Randy Barnett & Todd Zywicki both have posts prompted by some thoughts offered by Larry Ribstein. Here's an excerpt from Todd's post:
The Constitution in Exile Check out The Return of Constitution in Exile? by Jeffrey Jamison over at ACS Blog. Here is a taste:
Wednesday Calendar
Oxford Human Rights Discussion Group: Jens Scherpe, Recent Developments in European Family Law: Cohabitation and Gay Marriage. Trinity College, Oxford: Laurence Oatesm, Life, Death, and the Law Cardozo Law School, Jacob Burns Legal Theory Workshop: Robert Post, Yale Law School, The Structure of Academic Freedom. NYU Legal History: Samuel Issacharoff, Visiting Professor, NYU School of Law. Vanderbilt Law & Economics Workshop: Margaret Blair. Rossi on the Deference Trap Jim Rossi (Florida State University - College of Law) has posted Moving Public Law Out of the Deference Trap in Regulated Industries on SSRN. Here is the abstract:
New on the Stanford Encyclopedia of Philosophy Thomas Hurka's entry on Moore's Moral Philosophy is now available. Here is a taste:
Khanna on an Economic Analysis of Criminal Procedure for Corporate Defendants Vikramaditya S. Khanna (University of Michigan at Ann Arbor - Law School) has posted Corporate Defendants and the Protections of Criminal Procedure: An Economic Analysis on SSRN. Here is the abstract:
Onwuachi-Willig on Thomas & Affirmative Action Angela Onwuachi-Willig (University of California, Davis - School of Law) has posted Using the Master's 'Tool' to Dismantle His House: Why Justice Clarence Thomas Makes the Case for Affirmative Action (Arizona Law Review, Vol. 47, 2005) on SSRN. Here is the abstract:
Carbone on Backward Looking Jurisprudence & Dissolution June Carbone (Santa Clara School of Law) has posted Back to the Future: The Perils and Promise of a Backward Looking Jurisprudence on SSRN. Here is the abstract:
Tuesday, February 01, 2005
New on NELLCO
Zygmunt Plater, "Endangered Species Act Lessons Over 30 Years and the Legacy of the Snail Darter, a Small Fish in a Porkbarrel" Kim Lane Scheppele, "Law in a Time of Emergency" Kim Lane Scheppele, "Constitutional Ethnography: An Introduction" Matthew D. Adler, "Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?" (highly recommended). Nathaniel Persily and Kelli Lammie, "Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law" Vijay S. Sekhon, "Maintaining the Legitimacy of the High Court: Understanding the "25 Years" in Grutter v. Bollinger" Edieth Y. Wu, "REPARATIONS TO AFRICAN-AMERICANS: THE ONLY REMEDY FOR THE U.S. GOVERNMENT'S FAILURE TO ENFORCE THE 13TH, 14TH, AND 15TH AMENDMENTS" John Fabian Witt, "The Internationalist Beginnings of American Civil Liberties" Gregory A. Kalscheur, "John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism" Russell K. Robinson, "Boy Scouts & Burning Crosses: Bringing Balance to the Court's Lopsided Approach to the Intersection of Equality and Speech" Thompson on Psychiatric Neuroimaging in the Interrogation of Foreign Detainees Sean Kevin Thompson (Cornell University - School of Law) has posted A Place Where There is No Darkness?: Psychiatric Neuroimaging in the Interrogation of Foreign Detainees under U.S. and International Law (Cornell Law Review, Vol. 90, 2005) on SSRN. Here is the abstract:
New on the Stanford Encyclopedia of Philosophy Elizabeth Anderson's Dewey's Moral Philosophy is now available. Here is a taste:
Tuesday Calendar
Oxford Intellectual Property Research Centre: Dr. Alfredo Ilardi, Intellectual Property in the New Millennium: Origin and Development of International Protection of Intellectual Property. Lewis & Clark Law School: Geoffrey Manne, Hot Docs and Cold Economics. Symposium Announcement: Eminent Domain, Urban Renewal and the Constitution - Legal & Policy Perspectives
Symposium Available Online Electronic versions of the submissions to the Journal of Legislation symposium (Volume 31, 2004) on election-law superblogger Rick Hasen's book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore, are now available. Papers are by Guy Charles, Luis Fuentes-Rohwer, John Nagle, and Rick Hasen. |