Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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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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Thursday, March 31, 2005
Ayres on Sander Check out Does Affirmative Action Reduce the Number of Black Lawyers?, posted by Ian Ayres on Balkinization. More on Sunstein & Vermeule I posted yesterday on Cass Sunstein & Adrian Vermeule's paper--Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs. Over at Mirror of Justice, Rick Garnett has a post that comments:
Thursday Calendar
Yale Legal Theory Workshop: Amartya Sen, Harvard University (in joint session with the LEO workshop and Schell Center) "What's the Point of Human Rights?" Boston University School of Law: Wendy Gordon. Florida State University Law: Jody Kraus, University of Virginia. George Mason School of Law: Ross Davies, GMU School of Law, Modest Justice. George Washington University IP Series: Sara K. Stadler, Emory University Law School, "How Copyright Is Like a Moebius Strip". University of Michigan Cyberlaw & Economics Workshop: Christopher Yoo, Vanderbilt, On the Regulation of Networks as a Complex System. University of Texas Constitutional & Legal Theory Colloquium: Nicola Lacey, London School of Economics & Political Science. Barnett on Kennedy Randy Barnett (Boston University) has posted Grading Justice Kennedy: A Reply to Professor Carpenter (Minnesota Law Review, Vol. 89, p. 1500, 2005) on SSRN. Here is the abstract:
Gerken on Dissent Heather Gerken (Harvard University - Harvard Law School) has posted Dissenting by Deciding (Stanford Law Review, Vol. 56, 2005). Here is the abstract:
Coffee on a Theory of Corporate Scandals John C. Coffee Jr. (Columbia Law School) has posted A Theory of Corporate Scandals: Why the U.S. and Europe Differ on SSRN. Here is the abstract:
Solove on Dworkin Daniel J. Solove (George Washington University Law School) has posted Postures of Judging: An Exploration of Judicial Decisionmaking (Cardozo Studies in Law & Literature, Vol. 90, p. 173, 1997) on SSRN. Here is the abstract:
Guzelian on Scientific Free Speech Christopher P. Guzelian (Northwestern University - School of Law) has posted Scientific Free Speech on SSRN. Here is the abstract:
Conference Announcement: The Capability Approach
LoPucki on Multinational Bankruptcy Lynn M. LoPucki (University of California, Los Angeles - School of Law) has posted Global and Out of Control (American Bankruptcy Law Journal, Vol. 79, June 2005) on SSRN. Here is the abstract:
Wednesday, March 30, 2005
Sunstein & Vermeule on a Moral Requirement for Capital Punishment Cass R. Sunstein and Adrian Vermeule (University of Chicago Law School and University of Chicago Law School) have posted Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs on SSRN. Here is the abstract:
Update: For more, including criticism of Sunstein & Vermeule, scroll up or surf here. Patterson on Dworkin Dennis Patterson has posted Dworkin on the Semantics of Legal and Political Concepts on SSRN. Here is the abstract:
McCann on Nutritional Labeling Michael McCann has posted Comparing Legal, Economic, and Legislative Approaches to Nutritional Labeling of Fast Food Items on SSRN. Here is the abstract:
SSRN Rankings of Tax Faculty Check out this post on TaxProf Blog. Louis Kaplow is Number One. And if you missed it, here is the link (registration required) to the SSRN ranking of law faculty by downloads in the last twelve months. Tuesday, March 29, 2005
Hadfield on the 9/11 Compensation Fund Gillian Hadfield (The Law School, University of Southern California) has posted The September 11th Victim Compensation Fund: An Unprecedented Experiment in American Democracy (THE FUTURE OF TERRORISM RISK INSURANCE, Defense Research Institute (DRI), 2005) on SSRN. Here is the abstract:
Marmor on Textualism Andrei Marmor (University of Southern California - Law School) has posted The Immorality of Textualism (Loyola Law Review, 2005) on SSRN. Here is the abstract:
Conference Announcement: Principles of Association in British History at Chicago
Bodie on the Future of the Casebook Matthew T. Bodie (Hofstra University - School of Law) has posted The Future of the Casebook: An Argument for an Open-Source Approach on SSRN. Here is the abstract:
Monday, March 28, 2005
Pildes on the 2003 Supreme Court Term Rick Pildes (NYU) has posted The Constitutionalization of Democratic Politics - The Supreme Court, 2003 Term (Harvard Law Review, Vol. 118, No. 29, 2004) on SSRN. Here is the abstract:
Monday Calendar
Columbia Law & Economics: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Porfolios," Co-authored with Polk Wagner. Here is the abstract:
Zacharias on Lawyer Assistance Programming Fred C. Zacharias (University of San Diego School of Law) has posted A Word of Caution for Lawyer Assistance Programming (Georgetown Journal of Legal Ethics, Vol. 18, 2005) on SSRN. Here is the abstract:
Leiter on the Hermeneutics of Suspicion Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted The Hermeneutics of Suspicion: Recovering Marx, Nietzsche, and Freud (Brian Leiter, THE FUTURE OF PHILOSOPHY, Clarendon Press, pp. 74-105, 2004). Here is the abstract:
Arewa on Sampling Olufunmilayo Arewa (Case Western Reserve University - School of Law) has posted From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context on SSRN. Here is the abstract:
Sunday, March 27, 2005
Legal Theory Calendar
Columbia Law & Economics: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Porfolios," Co-authored with Polk Wagner. Here is the abstract:
Fordham University School of Law: Benjamin Zipursky, Professor of Law, Fordham, "Accidents of the Great Society". Here is a taste:
Florida State University School of Law: William Marshall, University of North Carolina School of Law, Presidential Transitions.
UCLA School of Law: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Portfolios" Legal Theory Lexicon: Hohfeld
Law students encounter the idea of right (moral or legal) early and often. But “rights talk” is frequently “loose talk.” Hohfeld is famous for exposing the ambiguity in the concept of a right and resolving that ambiguity with a typology of rights that distinguishes between claims, liberties, authorities, and immunities. This post is a quick and dirty introduction to Hohfeld for law students (especially first year law students) with an interest in legal theory. Types of Rights and Correlative Duties Lawyers tend to mush all legal rights together into a single category. The right to privacy, the right to freedom of speech, property rights, and civil rights—these diverse legal phenomena are frequently treated as if the “right” involved in these diverse cases was a single unambiguous type. Hohfeld’s first contribution was to distinguish different types of rights. Claim rights, for example, create corresponding obligations. Thus, my right to exclusive use of my land entails a corresponding duty of noninterference. You have a duty not to enter upon my land. But my property right also entails my liberty to use my land in a wide variety of ways—to build a house, plant a garden, and so forth. Correlated to that liberty is a correlative absence of inconsistent claim rights. You have no right to prevent me from building a house or planting a garden. Some legal rights involve powers over others. Thus, an employer has a right to control and direct the employee’s actions at work, and parents have authority over their children. Finally, there are immunities from authority. Thus, when children reach the age of majority or are legally emancipated they acquire immunities that disable the authority rights of their parents. Implicit in our discussion so far is Hohfeld’s second big idea, which is that each kind of right (claim, liberty, authority, and immunity) has a correlative legal consequence for others. Claim rights have correlative duties. Liberty rights correlate with an absence of claims. Authority rights correlate with liabilities. Immunities correlate with the absence of authority. Four Types of Rights The following list enumerates Hohfeld’s basic schema, identifying each kind of right and the correlative legal consequence. P is the party with the right. Q represents the person or group of persons on whom the right has a legal effect. X represents the object of the right.
Conclusion That’s Hohfeld in a very short nutshell! Gerhardt on the Constitutionality of a Judicial Filibuster Over at ACS Blog, there is a post entitled Gerhardt on the "The Constitutionality of the Filibuster", which analyzes a recent piece by Michael Gerhardt in Constitutional Commentary. Here is a taste:
Jacobs on Life Tenure for Judges Over at Townhall.com, Paul Jacob has an op/ed entitled Benching the judges. Here is taste:
Saturday, March 26, 2005
Saturday Calendar
Legal Theory Bookworm The Legal Theory Bookworm recommends The Law as It Could Be by Owen Fiss. Here is a brief description:
Download of the Week The Download of the Week is Analytical Jurisprudence versus Descriptive Sociology Revisited by Nicola Lacey. Here is a taste:
Friday, March 25, 2005
Brown on Representation and Accuracy in Criminal Adjudication Darryl K. Brown (Washington and Lee University - School of Law) has posted The Decline of Defense Counsel and the Rise of Accuracy In Criminal Adjudication on SSRN. Here is the abstract:
SSRN Top 1,000 Law Authors Follow this link (registration required), for SSRN's ranking of authors from the legal academy by recent downloads. Number one is Lucian Bebchuk of Harvard. Friday Calendar
Florida State University: Conference, Default Rules in Private and Public Law. Keynote speaker: Eric Maskin—Princeton. Other participants include Ian Ayres (Yale), Robert Ahdieh (Emory), Scott Baker & Kim Krawiec (University of North Carolina), Oren Bar-Gil (Harvard), Omri Ben-Shahar (Michigan), Margaret Brinig (Iowa), Daniel Farber (Berkeley), John Ferejohn (Stanford), Tamar Frankel (Boston University), Bradley C. Karkkainen (Minnesota), Jody Kraus (Virginia), Eric Posner (Chicago), Alan Schwartz (Yale), Robert Scott (Virginia), Eric Talley (University of Southern California). Participating Florida State University faculty include Amitai Aviram, Curtis Bridgeman, Mary Crossley, Adam Hirsch, Jonathan Klick, Jim Rossi, J.B. Ruhl, John Scholz, and Mark Seidenfeld. Fellowship Announcement
Wendel on Legal Ethics & the Separation Thesis W. Bradley Wendel (Cornell Law School) has posted Legal Ethics and the Separation of Law and Morals on SSRN. Here is the abstract:
Dent on Racial Trust George W. Dent, Jr. (Case Western Reserve Law School) has posted Race, Trust, Altruism and Reciprocity (Richmond Law Review, Vol. 39, May 2005) on SSRN. Here is the abstract:
Thursday, March 24, 2005
Thursday Calendar: Updated
University of Pennsylvania Legal Theory Workshop: Professor Edna Ullman-Margolit, Hebrew University. Yale Legal Theory Workshop: Amartya Sen, Harvard University (in joint session with the LEO workshop and Schell Center) "What's the Point of Human Rights?" Boston University School of Law: Wendy Gordon. Florida State University Law: Jody Kraus, University of Virginia. George Mason School of Law: Ross Davies, GMU School of Law, Modest Justice. George Washington University IP Series: Sara K. Stadler, Emory University Law School, "How Copyright Is Like a Moebius Strip". University of Michigan Cyberlaw & Economics Workshop: Christopher Yoo, Vanderbilt, On the Regulation of Networks as a Complex System. University of Texas Constitutional & Legal Theory Colloquium: Nicola Lacey, London School of Economics & Political Science. The Economist on the Grokster Case Check out Grokster and StreamCast face the music over at Economist.com. Here is a taste:
Hasen on the FEC Internet Rules Rick Hasen has a piece entitled FEC Takes First Stab at Internet Rules: More Clarity Needed. Here is a taste:
Alexander & Solum on Popular Constitutionalism Popular? Constitutionalism? 118 Harv. L. Rev. 1594 (2005) by Larry Alexander (University of San Diego) & Lawrence B. Solum (University of San Diego) is now available on Westlaw. An abstract is available via the Harvard Law Review webstie, here. Book Announcement
Westen on Free Will Peter K. Westen (University of Michigan Law School) has posted Getting the Fly Out of the Bottle: The False Problem of Free Will and Determinism (Buffalo Criminal Law Review, Vol. 8, pp. 101-54, 2005) on SSRN. Here is the abstract:
Perez on E-democracy Oren Perez (Bar-Ilan University, Faculty of Law) has posted Electronic Democracy as a Multi-dimensional Praxis (North Carolina Journal of Law & Technology, Vol. 4, No. 2, Spring 2003) on SSRN. Here is the abstract:
Carlson on Hegel David Gray Carlson (Cardozo Law School) has posted Hegel and the Becoming of Essence on SSRN. Here is the abstract:
Wednesday, March 23, 2005
Stone versus Volokh Over at the Legal Affairs Debate Club, Geoff Stone & Eugene Volokh are having at it. From Stone:
SSRN Ranks Top Twenty Law Schools by Number of Downloads I just checked my email after getting back from Tokyo & found the following from SSRN:
Conference Announcement: Signal or Noise 2k5: Creative Revolution?
Wednesday Calendar
NYU Legal History: Carla Spivack, Samuel I. Golieb Fellow, NYU School of Law. Saint Louis University: Lee Epstein and Andrew Martin, "Does the U.S. Constitution Need an ERA?" Kousser & McCubbins on Crypto-Initiatives Thad Kousser and Mathew D. McCubbins (University of California, Berkeley - Department of Political Science and University of California at San Diego) have posted Social Choice, Crypto-Initiatives and Policy Making by Direct Democracy on SSRN. Here is the abstract:
McClain & Fleming on Hirschl Linda C. McClain and James E. Fleming (Hofstra University - School of Law and Fordham University - School of Law) have posted Constitutionalism, Judicial Review, and Progressive Change on SSR. Here is the abstract:
New from Law & Politics Book Review
THE GENDER OF CONSTITUTIONAL JURISPRUDENCE, by Beverly Baines and Ruth Rubio-Marin (eds). Cambridge, England: Cambridge University Press, 2004. 356pp. Cloth $75.00 / £45.00. ISBN: 0521823366. Paper $34.99 / £19.99. ISBN: 052153027X. Reviewed by Judith A. Baer. DEFENDANT RIGHTS, by Hamid R. Kusha. Santa Barbara, CA: ABC-CLIO, Inc., 2004. 250pp. Hardcover. $50.00. ISBN 1057607-935-X. Reviewed by Paul J. Weber. The two reconstructions: The struggle for black enfranchisement, by Richard M. Valelly. Chicago: University of Chicago Press, 2004. 348pp. Cloth $58.00. ISBN: 0-226-84528-1. Paper $22.50. ISBN: 0-226-84530-3. Reviewed by Emery G. Lee III. PRIVATE LIVES; FAMILIES, INDIVIDUALS, AND THE LAW, by Lawrence M. Friedman. Cambridge: Harvard University Press, 2004. 240pp. Hardcover. $27.95. ISBN: 0-674-01562-2. Reviewed by Patricia McGee Crotty. RACIAL CULTURE: A CRITIQUE, by Richard T. Ford. Princeton: Princeton University Press, 2004. 248 pp. Cloth. $27.95 / £17.95. ISBN: 0-691-11960-0. Reviewed by Michelle D. Deardorff. GENDER MYTHS v. WORKING REALITIES: USING SOCIAL SCIENCE TO REFORMULATE SEXUAL HARASSMENT LAW, by Theresa M. Beiner. New York: New York University Press, 2005. 288pp. Cloth $45.00. ISBN: 0-8147-9917-5. Reviewed by Paul Weizer. Tuesday, March 22, 2005
Vairo on the Role of Individuals in Complex Claims Resolution Georgene M. Vairo (Loyola Law School (Los Angeles)) has posted Why Me? The Role of Private Individuals in Complex Claims Resolution (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
Somek on Democratic Minimalism Alexander Somek (University of Iowa, College of Law) has posted Democratic Minimalism: Turning the Clock Back from Democracy to Democratization on SSRN. Here is the abstract:
Tuesday Calendar
Oxford Programme in Comparative Media Law & Policy: Verena Wiedemann, What's Wrong with Competition Policy in the Media Sector? Online Event: Cyberlaw in the Supreme Court
Conference Announcement: Constitutionalism and the War on Terror at Drake
Monday, March 21, 2005
Stone on Rehnquist & the First Amendment Over at ACS Blog, Geoff Stone guest blogs with Justice Rehnquist and “The Freedom of Speech, . . .or of the Press”. Here is a taste:
Monday Calendar
NYU Law: Sam Estreicher, Employment At-Will And Its Contractual Exceptions. University of Texas School of Law: Jeffrey Rachlinski, Cornell University, "Can Judges Ignore Inadmissable Information? The Difficulty of Deliberately Disregarding" Book Announcement: Brennan and Democracy in Paperback
Waldron on the Case Against Judicial Review Professor Jeremy Waldron (Columbia) has posted 'The core of the case against judicial review'. Here is a taste:
Perry on the Foundations of Human Rights Michael Perry (Emory) has posted The Morality of Human Rights: A Nonreligious Ground? on SSRN. Here is the abstract:
Conference Announcement: British Society for Ethical Theory
Conference Announcement: Computers, Freedom, and Privacy
Sunday, March 20, 2005
Legal Theory Calendar
NYU Law: Sam Estreicher, Employment At-Will And Its Contractual Exceptions. University of Texas School of Law: Jeffrey Rachlinski, Cornell University, "Can Judges Ignore Inadmissable Information? The Difficulty of Deliberately Disregarding"
Oxford Programme in Comparative Media Law & Policy: Verena Wiedemann, What's Wrong with Competition Policy in the Media Sector?
NYU Legal History: Carla Spivack, Samuel I. Golieb Fellow, NYU School of Law. Saint Louis University: Lee Epstein and Andrew Martin, "Does the U.S. Constitution Need an ERA?"
Yale Legal Theory Workshop: Amartya Sen, Harvard University (in joint session with the LEO workshop and Schell Center) "What's the Point of Human Rights?" Boston University School of Law: Wendy Gordon. Florida State University Law: Jody Kraus, University of Virginia. George Mason School of Law: Ross Davies, GMU School of Law, Modest Justice. George Washington University IP Series: Sara K. Stadler, Emory University Law School, "How Copyright Is Like a Moebius Strip". University of Michigan Cyberlaw & Economics Workshop: Christopher Yoo, Vanderbilt, On the Regulation of Networks as a Complex System. University of Texas Constitutional & Legal Theory Colloquium: Nicola Lacey, London School of Economics & Political Science.
Legal Theory Lexicon: Holism
As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. The Law is a Seamless Web The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region. Coherence and Holism The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting. Cohererence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.” Herculean Holism Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts. Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull. Holism versus Particularism So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles. At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”). Is Holism Normative, Descriptive, or Interpretive? Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity. Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level. Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency. Conclusion The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local. Saturday, March 19, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends American Constitutionalism by Stephen Griffin. Here is a brief description:
Download of the Week The Download of the Week is Liberalism and Tort Law: On the Content and Economic Efficiency of a Liberal Common Law of Torts by Richard S. Markovits. Here is the abstract:
Friday, March 18, 2005
Crawford on Regulation in the Digital Age Susan P. Crawford (Cardozo School of Law) has posted Shortness of Vision: Regulatory Ambition in the Digital Age on SSRN. Here is the abstract:
Riles on Law's Failures Annelise Riles (Cornell University - School of Law) has posted Law's Failures: Means and Ends on SSRN. Here is the abstract:
Thursday, March 17, 2005
Bratton on Executive Compensation William W. Bratton (Georgetown University Law Center) has posted The Academic Tournament over Executive Compensation (California Law Review, Vol. 93, No. 5, 2005) on SSRN. Here is the abstract:
Morrison on Private AG's and the First Amendment Trevor W. Morrison (Cornell University - School of Law) has posted Private Attorneys General and the First Amendment (Michigan Law Review, Vol. 103, February 2005) on SSRN. Here is the abstract:
Hughes on Infringement-Based Business Models Justin Hughes (Cardozo Law School) has posted On the Logic of Suing One's Customers and the Dilemma of Infringement-Based Business Models (Cardozo Arts & Entertainment Law Journal, Vol. 20, 2005) on SSRN. Here is the abstract:
Wednesday, March 16, 2005
Cunningham on Posner & Cardozo Lawrence A. Cunningham (Boston College (Law School)) has posted Cardozo and Posner: A Study in Contracts (William & Mary Law Review, Vol. 36, p. 1379) on SSRN. Here is the abstract:
Markovits on a Liberal Law of Torts Richard S. Markovits (University of Texas Law School) has posted Liberalism and Tort Law: On the Content and Economic Efficiency of a Liberal Common Law of Torts on SSRN. Here is the abstract:
Call for Papers: Australasian Association for Philosophy (New Zealand Divsion) Conference
Tuesday, March 15, 2005
Yin on Death Row Phenomenon Tung Yin (University of Iowa, College of Law) has posted Can 'Death Row Phenomenon' Be Confined to Death Row Inmates? on SSRN. Here is the abstract:
ACS Project The ACS emailed the following:
Conference Announcement: Fairness at the New School
Bohannan on Construing the Copyright Act Christina Bohannan (University of Iowa, College of Law) has posted Construing the Copyright Act after Eldred on SSRN. Here is the abstract:
Blogger Problems Blogger, the back end for BlogSpot, has been malfunctioning consistently for the past few days. This has made it very difficult to get new material up on LTB. Posting may be erratic until the problem clears up. Call for Papers: Knowledge and Testimony
Conference Announcement: Spyware at Berkeley
More on Filibusters & Update Read Mike Rappaport's latest post--once again, Rappaport has excellent points expressed with great clarity and eloquence. This will require an extended response--probably at the end of the week, as I will be on the road tomorrow and Thursday. Also, Bruce Regal writes:
Tillman on the Filibuster of Judicial Nominees Seth Tillman comments on More from Rappaport on the Nuclear Option & the Filibuster (responding to this post):
Verkuil on Privatization of Government Functions Paul R. Verkuil (Cardozo Law School) has posted Public Law Limitations on Privatization of Government Functions on SSRN. Here is the abstract:
Carlson on Dworkin David Gray Carlson (Cardozo Law School) has posted Dworkin in the Desert of the Real on SSRN. Here is the abstract:
Monday, March 14, 2005
Monday Calendar
UCLA School of Law: Doug Lichtman, University of Chicago School of Law "Irreparable Benefits". More from Rappaport on the Nuclear Option & the Filibuster My colleague Michael Rappaport responds with his usual intelligence, vigor, and clarity to my comment on the op/ed that he and John McGinnis wrote concerning the so-called "nuclear" option to end filibuster's of democratic nominess. Here are his comments (in red), with some further reflections:
Sunday, March 13, 2005
Legal Theory Lexicon: Fit and Justification
As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. I know you are all very busy at this time of year, so I will do my best to be concise. The Basic Idea Suppose a judge is deciding a hard case. It could be a common law case or a constitutional case or a statutory case. How do judges approach this task when they are confronted with a case in which the law is up for grabs? That is, how do judges decide cases where there is an unsettled question of law? Dworkin's basic idea is that the process of deciding a hard case has two dimensions--fit and justification. First, the judge might ask herself, "Of all the possible interpretations of the law that I could adopt as the basis for my decision, which one is consistent with the theory that best fits the existing legal landscape. Of all the rules I could adopt in this case, which ones are consistent with the relevant constitutional and statutory provisions and with the precedent." When the judge had identified the alternatives that meet the criterion of fit, it is possible that there will be more than one possibility that fits. If so, then the judge can go on to ask the question, "Of the interpretations of the existing law that fit the constitution, statutes, and case law, which is the best interpretation? Which of the possible legal rules that I could adopt is most consistent with the normative theory that provides the best justification for the law as a whole. ? Fit What does it mean to say that a given rule fits the legal landscape? Suppose you are a judge deciding whether your jurisdiction will adopt the rule of contributory negligence or will choose instead to follow the comparative negligence approach. It is possible that only one of these two rules fits the existing law in your jurisdiction. For example, if the legislature has mandated the contributory negligence rule by statute, then as a judge (even a Supreme Court judge), you would be obliged to follow the statute and decide the case before you on the basis of contributory negligence. On the other hand, suppose you are in a newly created jurisdiction. No statute or binding precedent requires either comparative or contributory negligence. Both rules fit the existing legal landscape. In that case, Dworkin argues, you would need to decide a question of justification. Justification What does it mean to say that a judge might prefer one rule over another on the basis of the criterion of rustication? Let's continue with our example of the choice between contributory and comparative negligence. Since there is no statute or precedent that compels (or strongly guides) the choice, the judge must turn to some other basis in order to make her decision. She will need to get normative, i.e., to consider the normative justifications for tort law. Simplifying greatly, let's suppose our judge decides that the tort of negligence is best understood as a system of compensation and "risk spreading." She might then reason that the comparative negligence rule does a better job of serving this purpose than does a contributory negligence rule. Contributory negligence allows losses to go uncompensated when the plaintiff (victim) caused any of her own loss; comparative negligence does a better job of spreading the risk of accidents. [I know that this is a very crude argument, and I'm sure all of you can do better.] In other words, the judge asks the question, "What normative theory best justifies the existing law and negligence?" And then proceeds to the question, "Given that justification of tort law, which of the alternative rules that I could apply to the case before me best serves the purposes of tort law?" Two Kinds of Justification: Principle and Policy In Hard Cases, Dworkin identified two different kinds of arguments that can be used to justify the law. He called these two different types arguments of "principle" and "policy." As understood by Dworkin, arguments of principle are arguments that appeal to ideas about fairness and rights. If you would like to know more about arguments of principle, a good place to begin is with the Legal Theory Lexicon entry on Deontlogy. Arguments of policy, on the other hand, appeal to consequences. For example, if you argued that a comparative negligence rule is better than a contributory negligence rule because it provides optimal incentives for taking precautions against accidents, you would have made an argument of policy in Dworkin's sense. If you are interested in the theoretical basis for arguments of policy, you could take a look at the Legal Theory Lexicon entry on Utilitarianism. Dworkin himself argued that judges should consider arguments of principle and should not decide cases on the basis of arguments of policy. That feature of his theory is hugely controversial--as you could guess if, like most law students, you've heard endless discussion of policy in the classroom. But Dworkin could be right about "fit and justification," even if he is wrong that the dimension of justification is limited to principle and excludes policy. Conclusion Law students can use Dworkin's ideas about fit and justification as a device for organizing their analysis of legal questions--and of course, one important occasion for such analysis is the law school essay examination. It is very difficult to generalize about law school exams; they vary enormously. But many standard issue spotting essay questions have built into them a "hard case," an aspect of the fact pattern that is intended to trigger your discussion of the question, "What should the rule be?," with respect to some controversial legal issue. If you try to answer the question, "What should the rule be?," by telling your instructor, "Here is the majority rule," or "Here are two alternative rules; I don't know which one is the law, you will have missed the point of the question! And that's where Dworkin comes in. You can use "fit and justification" as the basis for organizing your answer to a "What should the law be?" question. Begin with fit. Which possible rules are consistent with the settled law? Then move to justification. Of the rules that fit, which is the best rule? Now list the arguments of principle and policy for and against each of the plausible candidates. Be sure to come to a conclusion. That is, end with something like, "Adopting a rule of comparative negligence is required by the theory that best fits and justifies the existing law of torts." Saturday, March 12, 2005
More from Barnett on Getting a Law Teaching Job Randy Barnett has been posting up a storm on Getting a Law Teaching Job. Here's a guide to his posts:
McGinnis & Rappaport on Amending the Filibuster Rule Readers of LTB will want to read Mike Rappaport & John MicGinnis's Op/Ed on amending the filibuster rule. As Mike blogs on The Right Coast:
The second view – advocated by many Democrats – is that a majority has no right to change the filibuster rule because the Senate rules still require a two-thirds vote to end a filibuster mounted against a resolution to change the filibuster. But this Senate rule conflicts with the structure of the Constitution. * * * The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a "nuclear" option but instead the constitutional option – the route contemplated by our founding document.
A Valuable Website My colleague, Adam Kolber, did me the very great favor of bringing this website to my attention: Conference Alerts. Basically, it is a worldwide, multidisciplinary listing of academic conferences. Among its nifty features is the ability to subscribe:
Legal Theory Bookworm The Legal Theory Bookworm recommends Lack of Character: Personality and Moral Behavior by John M. Doris--just out in paperback. Here is a description:
Downloads of the Week
The Cycles of Constitutional Theory First is The Cycles of Constitutional Theory by Barry Friedman. Here is the abstract:
Friday, March 11, 2005
Friday Calendar
Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law: Ms Christine Frison (Belgium), Access and Benefit Sharing in the International Treaty on Plant Genetic Resources for Food and Agriculture and Sustainable Development. UCLA School of Law: Margo Schlanger, Washington University school OF law, "Damage Action Deterrence". Australian National University RSSS: Alan Hájek (RSSS), TBA Book Announcement: The Common Law Tradition
Hollander-Blumoff & Bodie on Jury Ignorance About Damage Caps REBECCA E HOLLANDER-BLUMOFF (New York University - School of Law) and MATTHEW T. BODIE (Hofstra University - School of Law) have posted The Effects of Jury Ignorance About Damage Caps: The Case of the 1991 Civil Rights Act (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
Tiersma on Precedent Peter Tiersma (Loyola Law School (Los Angeles)) has posted The Textualization of Precedent on SSRN. Here is the abstract:
Erichson on the Inevitability of Mass Aggregate Litigation Howard M. Erichson (Seton Hall School of Law) has posted Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation" on SSRN. Here is the abstract:
Ambrams on Legal Feminism & the Emotions Kathryn R. Abrams (University of California, Berkeley - School of Law (Boalt Hall)) has posted Legal Feminism and the Emotions: Three Moments in an Evolving Relation (Harvard Womens Law Journal, Forthcoming) on SSRN. Here is the abstract:
Robinson on Criminal Justice in the Information Age Paul H. Robinson (University of Pennsylvania Law School) has posted Criminal Justice in the Information Age: A Punishment Theory Paradox (Ohio State Criminal Law Journal, Vol. 1, 2004) on SSRN. Here is the abstract:
Thursday, March 10, 2005
Black, Silver, Hyman, and Sage on the Medical Malpractice "Crisis" BERNARD S. BLACK (University of Texas at Austin - School of Law; University of Texas at Austin - Red McCombs School of Business), CHARLES SILVER (University of Texas Law School), DAVID A. HYMAN (University of Illinois College of Law), and WILLIAM M. SAGE (Columbia Law School) have posted Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002 on SSRN. Here is the abstract:
Blogger Problems I could not get blogger (the back engine for blogspot) to post this morning. My apologies for the late posting of the calendar. Remember, you can always access the calendar for the whole week by scrolling down to Sunday. Barnett on Entry-Level Legal Academic Jobs Randy Barnett comments on this topic over at the Conspiracy:
Update: The above advice--like Barnett's--is intended for those without stellar credentials. If you went to a top three law school, have a PhD or Supreme Court clerkship, and great recommendations from academic stars, then you certainly don't need three post-graduation publications. On the other hand, if you went to a law school outside the top fifty, didn't clerk, and don't have any degree besides the JD, think seriously about publishing BEFORE you go on the job market. Thursday Calendar
Loyola Marymount University, Loyola Law School: Patrick B. Crawford, Tax Fellow and Adjunct Professor of Law, Loyola Law School, "Kant's Critique of Welfarism (and related doctrines) in the Law" (A Reply to Kaplow and Shavell's Fairness versus Welfare). Northwestern Tax: Ajay Mehrotra, Associate Professor of Law, University of Indiana, TBA. University of Bremen, Germany: Social Justice in a Changing World:
Conference Announcement: Third International Conference, Cyberspace 2005
Lemley on the Meaning of Patent Claims Mark A. Lemley (Stanford Law School) has posted The Changing Meaning of Patent Claim Terms on SSRN. Here is the abstract:
Esper & Keating on Duty Dilan A. Esper and Gregory C. Keating (Stein & Flugge and University of Southern California Law School) have posted Abusing 'Duty' on SSRN. Here is the abstract:
Persily & Anderson on Direct Legislation in Election Law Reform Nathaniel Persily and Melissa Anderson (University of Pennsylvania Law School and University of California, Berkeley) have posted Regulating Democracy Through Democracy: The Use of Direct Legislation in Election Law Reform (Southern California Law Review, 2005) on SSRN. Here is the abstract:
Gulati, Rachlinski, & Langevoort on Fraud by Hindsight G. Mitu Gulati , Jeffrey J. Rachlinski and Donald C. Langevoort (Georgetown University Law Center , Cornell Law School and Georgetown University Law Center) have posted Fraud by Hindsight on SSRN. Here is the abstract:
Wednesday, March 09, 2005
Friedman on the Cycles of Constitutional Theory Barry Friedman (New York University School of Law) has posted The Cycles of Constitutional Theory (Law and Contemporary Problems Vol. 67, p. 149, 2004) on SSRN. Here is the abstract:
Conference Announcement: Persons and Society
Tuesday Calendar
University College, London, Colloquium in Legal and Social Philosophy: Professor Michael Martin (UCL), 'On having one's mind made up'. Lewis & Clark Law School: Alan Watson (University of Georgia), Comparative Law and Legal Understanding. NYU Legal History: Richard Bernstein, New York Law School, Beyond Cincinnatus: Thomas Jefferson and the Invention of the Ex-President and John Adams and America's War for Intellectual Independence. Oxford Centre for Socio-Legal Studies: Patrick Glenn, The Idea of Legal Culture, a Critical Assessment. Oxford Centre for Criminology: Federico Varese, Mob and Mobility – How Mafias Migrate. Royal Institution of Philosophy, London: John McDowell, Intention in Action Tuesday, March 08, 2005
Muller on Judging our Ancestors Eric Muller (University of North Carolina at Chapel Hill - School of Law) has posted Judging our Ancestors: Lessons from the Criminal Law on SSRN. Here is the abstract:
Update: Replying to the acoustic separation point, Muler writes:
And for discussion in the blogosphere see Pocahontas or Robert E. Lee? and Historical Judgement and Judging Our Own Ancestors Download it while its hot!. Tuesday Calendar
11:30 Ricardo Garcia Manrique, Barcelona, Autonomy and the Rule of Law Comment by Nick Barber, Oxford Correction: Princeton Program in Law & Public Affairs: Richard Posner, Seventh Circuit, "Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11". Kar on the Deep Structure of Law & Morality Robin Bradley Kar (Loyola Law School (Los Angeles)) has posted The Deep Structure of Law and Morality on SSRN. Here is the abstract:
Vermeule on Libertarian Panics Adrian Vermeule (University of Chicago Law School) has posted Libertarian Panics (Rutgers Law Journal, Symposium Issue, Forthcoming) on SSRN. Here is the abstract:
Miller Maps Sentencing Marc L. Miller (Emory University School of Law) has posted A Map of Sentencing and A Compass for Judges: Sentencing Information Systems, Transparency and the Next Generation of Reform (Columbia Law Review, Vol. 105, 2005) on SSRN. Here is the abstract:
Hunter on Pinello Nan D. Hunter (Brooklyn Law School) has posted Federal Courts, State Courts and Civil Rights: Judicial Power and Politics (Review Essay of Daniel R. Pinello, GAY RIGHTS AND AMERICAN LAW) (Georgetown Law Journal, Vol. 92, No. 941, 2004) on SSRN. Here is the abstract:
Conference Announcement: Agency & Causation in the Human Sciences
Monday, March 07, 2005
Hasen on FEC Regulation of Political Blogging Check out Rick Hasen's commentary for the Personal Democracy Forum. Here is a taste:
And Yet Still More on Getting at Entry Level Job in the Legal Academy Larry Ribstein, who chairs the faculty appointments committee at the University of Illinois, has some thoughts over at Ideoblog. Here is a taste:
Weekend Update My plea for help on the 2005 entry-level hiring report is here, with some preliminary results--this will be moved to the top of the blog from time to time. On Saturday, the Download of the Week was Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon by Mathew D. McCubbins and Daniel B. Rodriguez and the Legal Theory Bookworm recommended A Court Divided: The Rehnquist Court and the Future of Constitutional Law by Mark Tushnet. On Sunday, the Legal Theory Lexicon entry was on Virtue Jurisprudence and the Legal Theory Calender previewed this weeks talks and conferences. Monday Calendar
Oxford Legal Philosophy Colloquium 2005 (Password required for papers):
11:30 John Tasioulas, Oxford, Punishment and Repentance, Comment by Grant Lamond, Oxford 14:30 Samuel Freeman, Pennsylvania, Distributive Justice and the Law of Peoples, Comment by Pavlos Eleftheriadis, Oxford 16:30 Dori Kimel, Oxford, The Choice of Paradigm for Theory of Contract, Comment by Oliver Black, King's College London. Columbia Law & Economics: Douglas G. Baird, The University of Chicago, The Law School and Robert K. Rasmussen, Vanderbilt University Law School, "When Good Managers Go Bad: Controlling the Agents of Enterprise". Here's an abstract:
New York University School of Law: Herwig Schlunk (Visiting from Vanderbilt University Law School), A Lifetime Income Tax. Oxford University Middle Temple Society: The Rt Hon Lord Butler GCB CVO, How Law is Made. Oxford Social Sciences Division, Inaugural Lecture Series: Chris McCrudden, Legal research, public policy, and the social sciences. UCLA School of Law: Amy Zegart, UCLA School of Public Policy. University of Texas School of Law: Charles Silver and Bernard Black, UT School of Law, "What Medical Malpractice Crisis? Evidence on Claim Outcomes in Texas, 1988-2002" University of Texas School of Law: Tom Baker, University of Connecticut, "Making Sense with Numbers: The Uses and Abuses of Empirical Research on the Validity of Medical Malpractice Claims". George Mason University, Politics, Philosophy & Economics: Stephan Voigt, Kassel University (Germany) The Economic Effects of Judicial Accountability. University of Chicago Political Theory Workshop: Charles Beitz, Princeton University, Human Rights and International Toleration. Discussant: Mara Marin. London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Harris (Manchester), An Ethical Market for Transplant Organs. Stanford Center for Internet and Society and the Stanford Law and Technology Association: Daniel J. Solove, The Digital Person. Fennell on Eminent Domain Lee Anne Fennell, University of Illinois College of Law, has posted Taking Eminent Domain Apart (Michigan State Law Review, p. 957, 2004) on SSRN. Here is the abstract:
Helfer & Slaughter Reply to Posner & Yoo Laurence R. Helfer and Anne-Marie Slaughter (Vanderbilt University - School of Law and Princeton University - Woodrow Wilson School of Public and International Affairs) have posted Why States Create International Tribunals: A Response To Professors Posner and Yoo (California Law Review, Vol. 93, May 2005) on SSRN. Here is the abstract:
Chorvat on Taxing Utility Terrence R. Chorvat (George Mason University School of Law) has posted Taxing Utility (Journal of Socio-Economics, Forthcoming) on SSRN. Here is the abstract:
Eichner on Fineman Maxine Eichner (University of North Carolina at Chapel Hill - School of Law) has posted Dependency and the Liberal Polity: On Martha Fineman's The Autonomy Myth (California Law Review, Vol. 93, 2005) on SSRN. Here is the abstract:
Conference Announcement: Virtue Ethics vs. Kantian Ethics
Conference Announcement: Practical Reason at Brown
Sunday, March 06, 2005
Legal Theory Calendar
Oxford Legal Philosophy Colloquium 2005 (Password required for papers):
11:30 John Tasioulas, Oxford, Punishment and Repentance, Comment by Grant Lamond, Oxford 14:30 Samuel Freeman, Pennsylvania, Distributive Justice and the Law of Peoples, Comment by Pavlos Eleftheriadis, Oxford 16:30 Dori Kimel, Oxford, The Choice of Paradigm for Theory of Contract, Comment by Oliver Black, King's College London. Columbia Law & Economics: Douglas G. Baird, The University of Chicago, The Law School and Robert K. Rasmussen, Vanderbilt University Law School, "When Good Managers Go Bad: Controlling the Agents of Enterprise". Here's an abstract:
New York University School of Law: Herwig Schlunk (Visiting from Vanderbilt University Law School), A Lifetime Income Tax. Oxford University Middle Temple Society: The Rt Hon Lord Butler GCB CVO, How Law is Made. Oxford Social Sciences Division, Inaugural Lecture Series: Chris McCrudden, Legal research, public policy, and the social sciences. UCLA School of Law: Amy Zegart, UCLA School of Public Policy. University of Texas School of Law: Charles Silver and Bernard Black, UT School of Law, "What Medical Malpractice Crisis? Evidence on Claim Outcomes in Texas, 1988-2002" University of Texas School of Law: Tom Baker, University of Connecticut, "Making Sense with Numbers: The Uses and Abuses of Empirical Research on the Validity of Medical Malpractice Claims". George Mason University, Politics, Philosophy & Economics: Stephan Voigt, Kassel University (Germany) The Economic Effects of Judicial Accountability. University of Chicago Political Theory Workshop: Charles Beitz, Princeton University, Human Rights and International Toleration. Discussant: Mara Marin. London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Harris (Manchester), An Ethical Market for Transplant Organs. Stanford Center for Internet and Society and the Stanford Law and Technology Association: Daniel J. Solove, The Digital Person.
Oxford Legal Philosophy Colloquium 2005 (Password required for papers):
11:30 Ricardo Garcia Manrique, Barcelona, Autonomy and the Rule of Law Comment by Nick Barber, Oxford Princeton Program in Law & Public Affairs: Donald S. Bernstein, Seventh Circuit, "Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11".
University College, London, Colloquium in Legal and Social Philosophy: Professor Michael Martin (UCL), 'On having one's mind made up'. Lewis & Clark Law School: Alan Watson (University of Georgia), Comparative Law and Legal Understanding. NYU Legal History: Richard Bernstein, New York Law School, Beyond Cincinnatus: Thomas Jefferson and the Invention of the Ex-President and John Adams and America's War for Intellectual Independence. Oxford Centre for Socio-Legal Studies: Patrick Glenn, The Idea of Legal Culture, a Critical Assessment. Oxford Centre for Criminology: Federico Varese, Mob and Mobility – How Mafias Migrate. Royal Institution of Philosophy, London: John McDowell, Intention in Action
Loyola Marymount University, Loyola Law School: Patrick B. Crawford, Tax Fellow and Adjunct Professor of Law, Loyola Law School, "Kant's Critique of Welfarism (and related doctrines) in the Law" (A Reply to Kaplow and Shavell's Fairness versus Welfare). Northwestern Tax: Ajay Mehrotra, Associate Professor of Law, University of Indiana, TBA. University of Bremen, Germany: Social Justice in a Changing World:
Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law: Ms Christine Frison (Belgium), Access and Benefit Sharing in the International Treaty on Plant Genetic Resources for Food and Agriculture and Sustainable Development. UCLA School of Law: Margo Schlanger, Washington University school OF law, "Damage Action Deterrence". Australian National University RSSS: Alan Hájek (RSSS), TBA Legal Theory Lexicon: Virtue Jurisprudence
This entry in the Legal Theory Lexicon series provides an introduction to "virtue jurisprudence." As always, the discussion is aimed at law students, especially first-year law students, with an interest in legal theory. Modern Moral Philosophy and Contemporary Legal Theory The Legal Theory Lexicon already includes entries on Utilitarianism and Deontology, two of the most influential approaches for moral philosophy. In an essay titled Modern Moral Philosophy, Elizabeth Anscombe famously noted persistent problems with the deontological and utilitarian approaches that dominated normative ethics when she wrote in 1958. Anscombe's suggestion was for moral philosophers to return to Aristotle, and that is just what happened. Starting in the 1960s and accelerating through the 1980s and 1990s, there was a trickle and then an avalanche of philosophical work on virtue ethics--an approach to moral theory that emphasizes character and the virtues--as opposed to right action (deontology) or good consequences (utilitarianism). A prior entry in the Legal Theory Lexicon provided an introduction to virtue ethics and you might want to review that before you continue with this post. Modern legal theory has strong connections with modern moral philosophy. Historically, the connection is evident in the work of Jeremy Bentham: his work combined a conceptual separation of law and morality with a utilitarian program of legal reform. Contemporary legal scholarship frequently invokes general moral theories, including preference-satisfaction utilitarianism and deontological theories like Kant’s, to make arguments about what the law should be. Such normative legal theories are addressed to lawmakers (in the broad sense), including legislators and adjudicators. Developments in political philosophy, sparked by John Rawls’s A Theory of Justice and its libertarian and communitarian critics, have met with avid attention from the legal academy. Virtue Ethics and Legal Theory There is, however, an exception to general reflection of developments in moral philosophy in legal theory. Legal philosophy (as practiced by philosophers or academic lawyers) has only recently paid attention to one of the most significant developments in moral theory in the second half of the twentieth century, the emergence of virtue ethics. An outpouring of articles and monographs attests to the interest of philosophers in virtue ethics. In the law, the situation has been different. The hegemony of deontological and utilitarian theories prevails, at least among legal theorists working in the common-law tradition. There are, however, a growing number of exceptions to this hegemony. Kyron Huygens (of Punishment Theory) and Stephen Bainbridge (of ProfessorBainbridge.com) are just two of a growing number of legal scholars who have discussed virtue ethics in their work. Towards a Virtue Jurisprudence A full account of the implications of virtue ethics and epistemology for legal theory is a very large topic. Among the issues raised by virtue jurisprudence are the following: A Virtue-Centered Theory of Judging How would a virtue-centered theory of judging go? Let’s begin with the uncontroversial idea that good judging is inconsistent with the worst judicial vices and that it requires some minimal set of judicial virtues.
Are there judicial vices that are inconsistent with excellence in judging? Once asked, the question answers itself. Hardly anyone thinks that corruption and incompetence are consistent with excellence in judging. We can systematize the worst judicial vices, borrowing Aristotle’s distinction between intellectual and moral character traits. There are two important intellectual vices that are inconsistent with excellent judging. The first of these is judicial stupidity. Judges who suffer from this vice in its worst form lack the intelligence (and hence also the knowledge) necessary to do the complex intellectual work required of judges. They do not know what the rules of law are, and they are unable to see how they could be applied in particular fact situations. The second intellectual vice is judicial foolishness. Even a very smart judge can have terrible practical judgment. A foolish judge may know the law, but he cannot discern the difference between the rules that are important to the case and those that are only marginally relevant. Foolish judges are likely to make impractical demands are the lawyers and parties who appear before them. There are also moral vices that should are inconsistent with excellent adjudication. The most obvious of these is corruption. Judges should not accept bribes. Although judges are only infrequently in physical danger, they are more frequently faced with situations in which rendering the legally correct decision might injure their popularity, social standing, or opportunities for promotion or nonjudicial work. Hence we should not select civil cowards for judicial office. Judges are often placed in anger-inducing situations. A judge who is prone to fly off the handle at small provocations is not likely to be effective in the courtroom, and hence we ought not to select the hot-tempered for judicial office. What I have offered is a thin theory of judicial vice. This is a thin theory, because it rests on very weak assumptions about what counts as bad character. So far as I can see, no sensible normative account of judicial selection provides good reasons to reject the normative implications of the thin theory of judicial vice. No one wants stupid, foolish, corrupt, cowardly, or hot-tempered judges. Of course, these vices are not always apparent when candidates are nominated and confirmed for judicial office. There are, I am afraid, some judges on the bench today who possess the full range of these vices. The Thin Theory of Judicial Virtue The next step in our investigation of the judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of judicial virtues. Why? The basic reason is conceptual: virtue is required for the absence of vice. To select a judge who lacks the intellectual defect of judicial stupidity, you must select a candidate who has the corresponding virtue of judicial intelligence. To avoid, civic cowardice, you must select a judge with the virtue of civic courage. To avoid corruption, you must select a judge with the virtue of temperance. To avoid, ill temper, you must look for candidates who have judicial temperaments. A fully-developed virtue jurisprudence would flesh out this list of judicial virtues--specifying the character traits and mental abilities that make for good judging.
Judicial Courage A second virtue, judicial courage is a form of “civic courage.” The courageous judge is willing to risk career and reputation for the ends of justice. Judicial Temperament A third virtue, judicial temperament, corresponds to the vice of bad temper. The traditional concern in judicial selection with judicial temperament is illuminated by Aristotle's account of the virtue of good temper or proates: the disposition to anger that is proportionate to the provocation and the situation. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner. Judicial Intelligence The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry. Of course, judicial intelligence is related to theoretical wisdom in general, but the two are not necessarily identical. The talents that produce theoretical wisdom in the law may be different from those that produce the analogous intellectual virtue in physics, philosophy, or microbiology. Or it may be that theoretical wisdom is the same for all these disciplines. If this is the case, then judicial intelligence may simply be general theoretical wisdom supplemented by the skills or knacks that produce fine legal thought combined with deep knowledge of the law. Judicial Wisdom The final virtue on my short list is the corrective for bad judgment or foolishness. I shall use the phrase “judicial wisdom” to refer to a judge’s possession of the virtue of phronesis or practical wisdom: the good judge must possess practical wisdom in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances. The person of practical wisdom knows which particular ends are worth pursuing and knows which means are best suited to achieve those ends. Judicial wisdom is simply the virtue of practical wisdom as applied to the choices that must be made by judges. The practically wise judge has developed excellence in knowing what goals to pursue in the particular case and excellence in choosing the means to accomplish those goals. In the literature of legal theory, Karl Llewellyn’s notion of “situation sense” captures much of the content of the notion that judicial wisdom corresponds to the intellectual virtue of phronesis. This abstract account of judicial wisdom can be made more concrete by considering the contrast between practical wisdom and theoretical wisdom in the judicial context. The judge who possesses theoretical wisdom is the master of legal theory, with the ability to engage in sophisticated legal reasoning and insight into subtle connections in legal doctrine. But even a judge who possesses judicial intelligence is not necessarily a reliably good judge, even if she employs the correct decision procedure in her judicial decision-making. Why not? An answer to this question begins by clarifying the distinction between judicial intelligence and judicial wisdom. An example may help. Consider Dworkin’s imaginary judge, Hercules, who decides cases by constructing the theory that fits and justifies the law as a whole; this task can only be accomplished by someone who is able to appreciate legal complexity and to see the subtle interconnections between various legal doctrines summarized in the slogan, “the law is a seamless web.” Moreover, Dworkin’s theory requires judges to have a special concern for the coherence of the law, a virtue we might call “judicial integrity.” But other normative theories of judging may not value this characteristic. For example, “judicial integrity” might not be important to an act-utilitarian theory of judging. Perhaps, the act-utilitarian would consider Hercules to be obsessed with consistency—the hobgoblin of a foolish mind. Instrumental and Virtue-Centered Theories Thick theories of judicial virtue may be divided in two kinds, instrumental and virtue-centered. Instrumental theories of judicial virtue are those which begin with some independent criteria for what constitutes a good judicial decision and then selects a list of judicial virtues based on those criteria. For example, many normative theories of judging are decision (or outcome) centered. A decision-centered theory offers criteria for what should count as a good, right, just, or legally valid decision. For a decision-centered theory of virtue, the notion of a correct decision is primary and the judicial virtues are derived from it. Thus, Dworkin’s description of Hercules begins with the criteria for good decisions and then constructs the ideal judge who is able to render such decisions. By way of contrast, a virtue-centered theory does not proceed in this way. Rather, a virtue-centered theory begins with the an account of the virtuous judges as primary and then proceed to derive the notion of a virtuous decision from it. A Virtue-Centered Theory So what would a virtue-centered theory look like? This is just a blog post, so I can only give you a brief outline. For the sake of simplicity and clarity, we can formulate a virtue-centered theory of judging in the form of five definitions: Conclusion Of course, this very short introduction raises many more questions than it answers. But I hope that even this very sketchy account of one aspect of virtue jurisprudence has sparked your interest. Some of the most interesting applications of virtue ethics to legal theory can be found in torts and criminal law, and we haven't even touched on those. Another very interesting set of questions arises from the notion that the aim of the law is to inculcate virtue--an idea that may be at odds with pluralist idea that morals is a matter of individual choice. For a short introduction to my own work, check out Virtue Jurisprudence: An Aretaic Theory of Judging. Yet More on Getting an Entry Level Law School Job, Updated with reader comments Read Leiter--whose analysis is right on the money. Also remarks by David Bernstein amd Orin Kerr. And another comment from Christine Hurt, who points out:
Saturday, March 05, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends A Court Divided: The Rehnquist Court and the Future of Constitutional Law by Mark Tushnet. Here is a description:
Download of the Week The Download of the Week is Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon by Mathew D. McCubbins and Daniel B. Rodriguez. Here is the abstract:
Friday, March 04, 2005
Friday Calendar
UCLA School of Law: Albert Yoon, Northwestern University Law School, "Offer-of-Judgment Rules and Civil Litigation: An Empirical Study of Insurance Litigation in the East" 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?". Smith on the Declension of Belief Steven Douglas Smith (University of San Diego School of Law) has posted Hollow Men: Law and the Declension of Belief on SSRN. Here is the abstract:
Haque on Feldman Adil Ahmad Haque (Yale University - Law School) has posted Review of Noah Feldman, What We Owe Iraq: War and the Ethics of Nation Building (Yale Journal of International Law, Vol. 30, 2005) on SSRN. Here is the abstract:
Seto on Originalism & Precedent Theodore P. Seto, Loyola Law School (Los Angeles), has posted Originalism vs. Precedent: An Evolutionary Perspective (Loyola of Los Angeles Law Review, Vol. 38, 2005) on SSRN. Here is the abstract:
More on Law Teaching In addition to Eric Goldman's posts from yesterday see this post and this post from Chris Geidner. Chris addresses the question whether you really must go to a top twenty school in order to have a realistic chance to become a law professor. The 2004 Report on Entry Level Hiring has data from last year, and the 2005 Report should be posted in a few weeks. Just a few short observations:
Thursday, March 03, 2005
McCubbins & Rodriguez on the Appropriations Canon Mathew D. McCubbins and Daniel B. Rodriguez (University of California at San Diego and University of San Diego School of Law) have posted Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon (Journal of Contemporary Legal Issues, 2005) on SSRN. Here is the abstract:
Ramsey & Prakash on the Jeffersonian Executive Saikrishna Prakash and Michael D. Ramsey (University of San Diego School of Law and University of San Diego School of Law) have posted Foreign Affairs and the Jeffersonian Executive: A Defense on SSRN. Here is the abstract:
Appleman on the System of Legal Education Laura I Appleman, Center for Appellate Litigation, has posted The Rise of the Modern American Law School: How Professionalization, German Scholarship, and Legal Reform Shaped Our System of Legal Education (New England Law Review, Vol. 39, p. 251, 2005) on SSRN. Here is the abstract:
Eric Goldman on Law Teaching Careers Eric Goldman has a four part series on law teaching careers. Here are the links: Hasen on the Confirmation Wars Election-law superblogger Rick Hasen has a good post entitled Nuclear Options and Term Limits in the Judicial Wars: What Will It Take to Overcome the Impasse? Here's a taste:
Thursday Calendar
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). Wednesday, March 02, 2005
Welcome to the Blogosphere . . . . . . to Automatic Say, a weblawg devoted to bankruptcy law, legal issues and politics, focusing on the Fifth Circuit and Texas, by Debra L. Innocenti. Conference Announcement: Nature in the Kingdom of Ends
Call for Papers: Emotions and Rationality in Moral Philosophy
Wednesday Calendar
University College, London, Colloquium in Legal and Social Philosophy: Professor Seana Shiffrin (UCLA), 'What's wrong with compelled association?'. Here is a taste:
Tuesday, March 01, 2005
Tuesday Calendar
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. Berman on World Law Harold Berman (Emory University - School of Law) has posted World Law: An Ecumenical Jurisprudence of the Holy Spirit on SSRN. Here is the abstract:
Johnson and Fuentes-Rohwer on Racial Diversity on the Judiciary Kevin R. Johnson and Luis E. Fuentes-Rohwer (University of California, Davis - School of Law and Indiana University School of Law - Bloomington) have posted A Principled Approach to the Quest for Racial Diversity on the Judiciary (Michigan Journal Race & Law, Vol. 10, 2005) on SSRN. Here is the abstract:
Shepherd on End-of-Life Decisionmaking Lois Shepherd (Florida State University - College of Law) has posted Shattering the Neutral Surrogate Myth in End-of-Life Decisionmaking: Terri Schiavo and Her Family (Cumberland Law Review, Forthcoming) on SSRN. Here is the abstract:
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