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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Berkeley) eScholarship Repository +Law and Politics Book Reviews +Metapsychology Book Reviews +Notre Dame Philosophical Review +Online Papers in Philosophy +PoliticalTheory.info +SSRN Most Recent Uploads More Blogs of Interest --Althouse (Ann Althouse) --Asymmetrical Information (Jane Galt) --bIPlog (Group Blog) --The Blawg Review (Group Blog) --Brad DeLong --The Buck Stops Here (Stuart Buck) --Copyfight (Group Blog) --A Copyfighter's Musings (Derek Slater) --The Curmudgeonly Clerk --Daniel Drezner --Discriminations (John and Jessie Rosenberg) --Eastmania (Wayne Eastman) --EveTushnet.com (Eve Tushnet) --Freespace (Timothy Sandefur) --Furdlog Frank Field --Ideoblog (Larry Ribstein) --The Importance Of (Ernest Miller) --The Indiana Law Blog (Marcia J. 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Olin Program in Law and Economics Workshop +University of Michigan Law and Economics +University of San Diego Colloquium Series +University of Texas Colloquium Series +Vanderbilt Scholarly Programs & Events Calendar +Villanova +Washington & Lee Faculty Workshops +Yale Law, Economics & Organizations Workshop Calendars & Events +Aristotelian Society +British Society for Ethical Theory +Conference Alerts +Events in Analytic Philosophy in Europe (and Overseas Countries) +The Philosophical Calendar +Philosophy Now Calendar +Political Science Online Upcoming Conferences +SSRN Professional Announcements Other Programs --Australian National University, Research School of Social Science, Philosophy Seminars --Boston University Philosophy Colloquia --Brown University Philosoophy Upcoming Events George Mason Workshop in Philosophy, Politics, and Economics --Harvard University, Philosophy Colloquia --MIT Philosophy Colloquia --New York University, Philosophy Events --Oxford: Events at the Faculty of Philosophy --Princeton University: Philosophy Department Talks --Princeton University: Political Philosophy Colloquium --Princeton University: Public Law Colloquium --Princeton University: Seminar in Law and Public Affairs --Tulane Philosophy and Center for Ethics & Public Affairs Seminars --University College, London: Political Theory Seminars --University of Arizona Philosophy Colloquia --University of Bristol Philosophy Research Seminars --University of California at Berkeley Philosophy Events --University of California at San Diego Philosophy Colloquia --University of Chicago Political Theory Workshop --University of London, School of Advanced Study, Philosophy Programme --University of Manchester Politics & Philosophy Research Seminars --University of Melbourne Philosophy Events --University of North Carolina: Philosophy Speakers --University of Pennsylvania: Philosophy Colloquiua --University of Pittsburgh Philosophy Calendar --Yale Philosophy Department Talks Some Legal Theorist Homepages --Robert Alexy (Christian Albrechts University Kiel) --Randy Barnett (BU) --Brian Bix (Minnesota) --Jules Coleman(Yale Law & Philosophy) --Ronald Dworkin(NYU & University College) --John Finnis(Oxford and Notre Dame) --John Gardner (Oxford) --Brian Leiter (Texas) --Micahel Moore (Illinois) --Dennis Patterson (Rutgers, Camden) --Stephen Perry (NYU) --Richard Posner (University of Chicago & USCA7) --Joseph Raz (Oxford and Columbia) --Jeremy Waldron (Columbia More to come! Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Saturday, April 30, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Brennan and Democracy by Frank Michelman. I take special pleasure in this recommendation, both because Michelman was my contracts professor (along with Lea Brilmayer, creating a real "odd couple" experience) and because he is surely one of the most intelligent and thoughtful constitutional theorists of our time. Here is a blurb:
Download of the Week The Download of the Week is The Art of Reading LOCHNER by Rebecca L. Brown. Here is the abstract:
Friday, April 29, 2005
Friday Calendar
University of Texas, School of Law: David Blight, Yale University, Department of History, "The Theft of Lincoln in Scholarship and in Public Memory". Vanderbilt Legal Theory Workshop: David Dana, Northwestern University Law School, "Adequacy of Representation after Stephenson". Northwestern University School of Law: Law and Positive Political Theory Conference: Legal Doctrine and Political Control, Day 1
Zipursky on Punitive Damages Benjamin C. Zipursky (Fordham University School of Law) has posted A Theory of Punitive Damages (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:
Wuerth on Authorizations for the Use of Force Ingrid B. Wuerth (University of Cincinnati - College of Law) has posted Authorizations For the Use of Force, International Law, and The Charming Betsy Canon (Boston College Law Review, Vol. 42-6, 2005) on SSRN. Here is the abstract:
Brandser on Victorian Censorship & Birth Control Kristin Brandser (University of Cincinnati - College of Law) has posted Law, Literature, and Libel: Victorian Censorship of 'Dirty Filty' Books on Birth Control (William & Mary Journal of Women and the Law, Vol. 10, p. 533, 2004) on SSRN. Here is the abstract:
Ahdieh on Norm Transformation Robert B. Ahdieh (Emory University School of Law) has posted The Role of Groups in Norm Transformation: A Dramatic Sketch, In Three Parts (Chicago Journal of International Law, Vol. 6, No. 1, p. 233, 2005) on SSRN. Here is the abstract:
Cook on Fairness in Health Care Reform Rebecca J. Cook (University of Toronto - Faculty of Law) has posted Exploring Fairness in Health Care Reform (Journal for Juridical Science Vol. 29, No. 3, pp. 1-27, 2004) on SSRN. Here is the abstract:
Brown on Dworking & Constitutional Theory Rebecca L. Brown (Vanderbilt Law School) has posted How Constitutional Theory Found Its Soul: The Contributions of Ronald Dworkin (EXPLORING LAW'S EMPIRE, Oxford University Press, 2005) on SSRN. Here is the abstract:
Conference Announcement: Nature in the Kingdom of Ends
Conference Announcement: What Is Autonomy?
Thursday, April 28, 2005
Cox on Partisan Gerrymandering Adam Cox (University of Chicago Law School) has posted Partisan Gerrymandering and Disaggregated Redistricting on SSRN. Here is the abstract:
Tax Symposium Over at TaxProf Blog, Paul Caron reports:
Thursday Calendar
The central concept in Arendt’s theory, which she borrowed from Kant, is the enlarged mentality. Briefly put, what distinguishes judgment from both subjective preference and provable truth claims, is that judgment involves reflection on the question at hand from the standpoint or perspective of others. Judgment as such remains subjective, it cannot compel the assent of others as truth claims can. But it can claim validity with respect to other judging subjects. It is the use of the enlarged mentality, the consideration of others’ perspectives, that makes this validity possible. It is this exercise that distinguishes mere private opinion from valid judgment.
University of Texas, School of Law: David Blight, Yale University, Department of History, "Healing or Justice: Has Civil War Memory Divided or Unified America?" Ribstein Asks "Why Corporations?" Larry E. Ribstein (University of Illinois College of Law) has posted Why Corporations? (Berkeley Business Law Journal, Vol. 1, p. 183, 2004) on SSRN. Here is the abstract:
Sunstein on Irreversible & Catastrophic Harms Cass R. Sunstein (University of Chicago Law School) has posted Irreversible and Catastrophic (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:
Posner on Political Trials Eric A. Posner (University of Chicago Law School) has posted Political Trials in Domestic and International Law on SSRN. Here is the abstract:
Brown on Reading Lochner Rebecca L. Brown (Vanderbilt Law School) has posted The Art of Reading LOCHNER (NYU Journal of Law & Liberty, Summer 2005) on SSRN. Here is the abstract:
Competition Announcement: The Mental & the Normative
Wednesday, April 27, 2005
Brown Confesses to Flaws Rebecca L. Brown (Vanderbilt Law School) has posted Confessions of a Flawed Liberal (Rebecca L. Brown, THE NEW FIRST AMENDMENT AND THE MEANING OF LIBERALISM/CONSERVATISM, The Good Society, June/July 2005) on SSRN. Here is the abstract:
Gillette & Scott on International Sales Law Clayton P. Gillette and Robert E. Scott (New York University Law School and University of Virginia School of Law) have posted The Political Economy of International Sales Law on SSRN. Here is the abstract:
Bell & Parchomovsky on Property & Federalism Abraham Bell and Gideon Parchomovsky (Bar-Ilan University, Faculty of Law and University of Pennsylvania Law School) have posted Of Property and Federalism on SSRN. Here is the abstract:
Sklansky on Police and Democracy David A. Sklansky (University of California, Los Angeles - School of Law) has posted Police and Democracy (Michigan Law Review, 2005) on SSRN. Here is the abstract:
Driesen on the Neutrality of Cost-Benefit Analysis David M. Driesen (Syracuse University - College of Law) has posted Is Cost-Benefit Analysis Neutral? (University of Colorado Law Review, Vol. 77, 2006) on SSRN. Here is the abstract:
Tuesday, April 26, 2005
2005 Entry Level Hiring, Interim Report Updated as of April 28, 7:20 a.m. PDST 116 schools have reported so far. Based on the most recent information I've received, there are still a few schools that will make decisions in the next two weeks or so. Unless I hear of schools that plan to take even longer, I will close the books around the middle of May. Please note, I still need additional information about an outstanding rumour about Syracuse (see end of this post). Finally, if you know of a law school that will not make any entry-level hires that is not listed, please drop me an email: lsolum@sandiego.edu. The fine print: For my purposes, someone hired from a non-tenure-track position (e.g. a VAP) to a tenure-track position counts as an entry level hire. Hires to temporary positions or to non-tenure-track positions are not included. I am standardizing the terminology for certain disciplines; for example, government, politics, political theory, and political science are all listed as "political science." I am tracking hires made during the 2004-05 academic year--so a hire made in Fall 2004 will be listed, even if the candidate starts in Spring 2005 & a hire made in Spring 2004 will not be listed, even if the candidate starts in Fall 2005. The most complete version of the data reported here is in an excel spreadsheet. Although I update the various statistics (e.g. number of placements per school) on a regular basis, I do not check this against the spreadsheet every time I add a name. Some reports are confidential--and for this reason, the statistics do not yet match the list, although the two will eventually be in sync. In the JD/LLB placement tournament, the current leaders are:
Richard Lavoie, JD Cornell, LLM NYU (Tax) Stefan Padfield, JD Kansas
Barak Orbach, LLB Tel Aviv, SJD Harvard
New: Robert Steinbuch, Columbia, MA Penn (Political Science)
Newest: Erin Murphy, JD Harvard
Eric Pan, JD Harvard, MSc Edinburgh (European and International Politics) Julie Suk, JD Yale, DPhil Oxford (political science-politics)
Newest: Henry Noyes, JD Indiana-Bloomington Newest: Lawrence Rosenthal, JD Harvard
Todd Henderson, JD Chicago New: Tom Miles, JD Harvard, PhD Chicago (Economics)
Viva Moffat, JD Virginia, MA Virginia (History)
Lee-ford Tritt, JD NYU, LLM NYU (Tax)
John Pfaff, JD Chicago, PhD (candidate)Chicago (Economics)
John Neiman, JD Harvard Jason Solomon, JD Columbia
New: Jed Shugerman, JD Yale, PhD (Candidate) Yale (History)
Kimberly West-Faulcon, JD Yale
William McGeveran, JD NYU
Wenona Singel, JD Harvard Douglas Smith, JD Texas
Lloyd Mayer, JD Yale O. Carter Snead, JD Georgetown
Newest: Carla Spivack, JD NYU, PhD (candidate) Boston College (English).
Timothy Kuhner, JD Duke, LLM Duke
Damon Smith, J.D. Harvard, MUP Illinois Urbana/Champaign (Urban Planning)
Kerry Ryan, JD Tulane, LLM Florida (Tax) Ann Scarlett, JD Kansas
Lia Epperson, JD Stanford
New: Russell Powell, JD Virginia, MA Loyola-Chicago (Philosophy)
Thomas Crocker, JD Yale, Ph.D. Vanderbilt (Philosophy)
New: Adam Gershowitz, JD Virginia
Sung Hui Kim, JD Harvard
Jeremy Blumenthal, JD Penn, PhD Harvard (Psychology) Nina Kohn, JD Harvard Kevin Maillard, JD Penn, PhD Michigan (Political Science) Jenny Roberts, JD NYU
Andrea Monroe, JD Michigan, LLM NYU (Tax)
Jennifer Hendricks, JD Harvard Mae Quinn, JD Texas, LLM Georgetown (Advocacy)
Jens Dammann, DrJur Frankfurt, SJD Yale
Kaimipono Wenger (J.D., Columbia)
Gabriel Feldman, JD Duke New: Tania Tetlow, JD Harvard
Lesley McAllister, JD Stanford, PhD Berkeley (Environmental Studies)
James Spindler, Harvard JD
Alice Ristroph, JD Harvard, PhD Harvard (Political Science)
Michal Barzuza, LLB Tel Aviv, SJD Harvard New: Michael Doran, JD Yale Brandon Garrett, JD Columbia Newest: Chris Sprigman, JD Chicago
Peter Reilly, JD Harvard, LLM Georgetown
Jocelyn Benson, JD Harvard
Jill Anderson, JD Columbia
Feibelman on the Social Insurance Function of Consumer Bankruptcy Adam Feibelman (University of North Carolina) has posted Defining the Social Insurance Function of Consumer Bankruptcy on SSRN. Here is the abstract:
Tuesday Calendar
Georgetown Law School: Marks (Greenwald Fellow). University of Illinois College of Law: Todd Allee, Dept. of Political Science, UIUC. Lewis & Clark Law School: Craig Johnston. Oxford Taxation Law: Professor Malcolm Gammie QC, A European Corporation Tax. Vanderbilt University School of Law: Stefanie Lindquist, Vanderbilt Political Science Department and Law School. Articles for Sale on Amazon.com Paul Caron has a post on the very recent phenomenon of Amazon.com posting law review articles for sale. (Also, see Orin Kerr and Larry Ribstein.) I'm not sure this phenomenon is really very interesting--because I doubt there will be many sales. Will anyone pay $5.95 plus shipping for this? Update: See also this post by Stuart Levine. Hasen on the Nuclear Option Election-law superblogger Rick Hasen has a Roll Call editorial titled "Hate the Filibuster? You Might Want to Nuke the Entire Senate". Here is a taste:
And on the same topic, the Senate Republican Policy Committee has released a new policy paper, The Constitutional Option: The Senate's Power to Make Procedural Rules by Majority Vote. Update: And I also recommend this post and this post by Paul Horwitz over at PrawfsBlog. And Hasen responds here. Bar-Gill on Pricing Legal Options Oren Bar-Gill (New York University - School of Law) has posted Pricing Legal Options: A Behavioral Perspective on SSRN. Here is the abstract:
Conference Announcement: Metaphysics of Value
Monday, April 25, 2005
Monday Calendar
University of Texas School of Law: Michael Heise, Cornell, "Judge, Juries, and Punitive Damages: Empirical Analyses" (with Ted Eisenberg)":
Bar-Gill & Parchomovsky on IP & the Boundaries of the Firm Oren Bar-Gill and Gideon Parchomovsky (New York University - School of Law and University of Pennsylvania Law School) have posted Intellectual Property Law and the Boundaries of the Firm on SSRN. Here is the abstract:
Yu on on the Information Ecosystem Peter K. Yu (Michigan State University College of Law) has posted Intellectual Property and the Information Ecosystem (Michigan State Law Review, Vol. 2005, pp.1-20, Spring 2005) on SSRN. Here is the abstract:
Richamn on Salerno Daniel C. Richman (Fordham University School of Law) has posted The Story of United States v. Salerno: The Constitutionality of Regulatory Detention (CRIMINAL PROCEDURE STORIES, Carol Steiker, ed., Foundation Press Law Stories Series, 2005) on SSRN. Here is the abstract:
Sunday, April 24, 2005
Legal Theory Calendar
University of Texas School of Law: Michael Heise, Cornell, "Judge, Juries, and Punitive Damages: Empirical Analyses" (with Ted Eisenberg)":
Georgetown Law School: Marks (Greenwald Fellow). University of Illinois College of Law: Todd Allee, Dept. of Political Science, UIUC. Lewis & Clark Law School: Craig Johnston. Oxford Taxation Law: Professor Malcolm Gammie QC, A European Corporation Tax. Vanderbilt University School of Law: Stefanie Lindquist, Vanderbilt Political Science Department and Law School.
The central concept in Arendt’s theory, which she borrowed from Kant, is the enlarged mentality. Briefly put, what distinguishes judgment from both subjective preference and provable truth claims, is that judgment involves reflection on the question at hand from the standpoint or perspective of others. Judgment as such remains subjective, it cannot compel the assent of others as truth claims can. But it can claim validity with respect to other judging subjects. It is the use of the enlarged mentality, the consideration of others’ perspectives, that makes this validity possible. It is this exercise that distinguishes mere private opinion from valid judgment.
University of Texas, School of Law: David Blight, Yale University, Department of History, "Healing or Justice: Has Civil War Memory Divided or Unified America?"
University of Texas, School of Law: David Blight, Yale University, Department of History, "The Theft of Lincoln in Scholarship and in Public Memory". Vanderbilt Legal Theory Workshop: David Dana, Northwestern University Law School, "Adequacy of Representation after Stephenson". Northwestern University School of Law: Law and Positive Political Theory Conference: Legal Doctrine and Political Control, Day 1
Legal Theory Lexicon: The Internal Point of View
Internal and External What is the difference between internal and external perspectives on the law? Obviously, we are dealing with a metaphor here. The idea is that one can look at the law from the inside or from the outside. Even if you have never encountered this distinction before, the intuitive idea of the metaphor is fairly clear. The internal point of view is the perspective of participants in the system--those who accept the authority of law. Thus, the internal point of view is paradigmatically the point of view of legal officials (such a judges). The external point of view is the perspective of outsiders. Thus, the external point of view is paradigmatically the point of view of a sociologist or anthropologist from a different culture, who observes the legal system. Here are some examples:
--Causal theories (e.g. a public-choice theory that explains why a particular area of law has come to be the way it is) are usually stated from the external point of view. In first-year law school courses, causal theories are usually stated in a very compact, even off-hand form. There may be a brief classroom discussion of the causal forces that shaped a particular legal doctrine, but it is fairly rare actually to read social science literature on topics like this. Rules and the Internal Point of View The internal point of view may have additional significance to legal theorists. One can argue that legal rules cannot be described from a purely external point of view. Huh? Imagine that you are an anthropologist from Mars, observing an earthly legal system. You would be able to note various regularities in behavior, but so long as you stuck to the purely external point of view, you would not be able to say anything about the content of the laws. In order to do that, you would need to ask the question "What is the meaning of the these legal texts and actions?" And to say anything about meaning, you would need to assume (at least hypothetically) something like the internal point of view. You would need to ask the question, "What does these behaviors are markings mean to those who are inside the practice of law?" If this argument is correct, then important consequences follow. Legal theorists are interested in legal theory. If the internal point of view is a necessary prerequisite for understanding the legal significance of the behavior of legal actors, then it would seem to follow that all legal theory requires that the theorist be able to assume the internal point of view at the stage where the theorist describes the legal phenomenon that are the object of study. Let me give an example of this rather abstract point. Suppose you want to develop a causal theory of tort law. You want to argue that there is an economic explanation of the emergence of negligence (as opposed to strict liability) as the primary standard of care in tort. The details of the theory don't matter, but let's assume you believe that inefficient legal standards create incentives for litigation and that a quasi-evolutionary process leads to the selection of efficient standards. And of course, you would need to argue that negligence is efficient. This theory is primarily stated from the external point of view, but it also relies on the legal meaning of the distinction between "negligence" and "strict liability"--concepts that can only be understood from the legal point of view. The central idea here is that the external point of view can describe the behavior of legal actors, but the internal point of view is required to understand the meaning of legal actions. Conclusion The distinction between the internal and external point of views is one of the basic ideas in legal theory. When you first begin to construct theories about the law, you should ask yourself, "Am I looking at this area of the law from the internal point of view or am I taking a perspective that is external to the law?" For more on theory construction, you might also want to look at an earlier post in the Legal Theory Lexicon series: Legal Theory Lexicon 016: Positive and Normative Legal Theories Saturday, April 23, 2005
The Legal Theory Bookworm The Legal Theory Bookworm recommends The Supreme Court and the Attitudinal Model Revisited and the earlier The Supreme Court and the Attitudinal Model by Jeffrey A. Segal & Harold J. Spaeth. This work is absolutely essential--especially for constitutional theorists trained in law who are unfamiliar with this important work. Here is a blurb:
Download of the Week The Download of the Week is A New Understanding of Tax (Michigan Law Review, 2005). Here is the abstract:
Friday, April 22, 2005
Solum on the Future of Copyright Lawrence Solum (your blogger) has posted The Future of Copyright on SSRN. Here is the abstract:
Friday Calendar
University of Texas School of Law: Adrienne Davis, University of North Carolina (Visiting professor at UT Law), "Manumission, Miscegenation & Marriage: The Sexual Economy of American Slavery". Levin on the Nomos and Narrative of Matushita Nickolai Levin has posted The Nomos and Narrative of Matsushita on SSRN. Here is the abstract:
Stone on International Environmental Ethics & Law Christopher D. Stone (University of Southern California - Law School) has posted Ethics in International Environmental Law (Oxford Handbook of International Environmental Law, 2006) on SSRN. Here is the abstract:
Rose on Science and Environmental Law Carol M. Rose (Yale Law School) has posted Environmental Law Grows Up (More or Less), and What Science Can Do to Help (Lewis & Clark Law Review, Vol. 9, 2005) on SSRN. Here is the abstract:
Weinstein on Judicial Limits on Legislative Power Ian Weinstein (Fordham University - School of Law) has posted The Revenge of Mullaney v. Wilbur: U.S. v. Booker and The Reassertion of Judicial Limits on Legislative Power to Define Crimes on SSRN. Here is the abstract:
Burk on Federalism in Cyberspace Dan L. Burk (University of Minnesota Law School) has posted Federalism in Cyberspace Revisited (WHO RULES THE NET? ESSAYS ON INTERNET GOVERNANCE AND JURISDICTION 119, Adam Theier & Wayne Crews, eds., 2003) on SSRN. Here is the abstract:
Thursday, April 21, 2005
Law Review If you are thinking about the decision whether to write on to law review, surf here and follow the links. Waldron Debates Yoo Over at Ex Post, a report on the debate between Jeremy Waldron and John Yoo on torture. Thursday Calendar
Florida State University, College of Law: Lars Trägårdh, Columbia University, The Juridification of Politics in the United States and Europe: Historica Roots, Contemporary Debates and Future Prospects. Boston University School of Law: Allan Macurdy. Georgetown Workshop on Transnational Legal Issues: Lama Abu-Odeh, "The Politics of (Mis)recognition: Teaching Islamic Law in the United States". Vanderbilt University Legal Theory Workshop: Dan Farber, University of California - Berkeley Law School, "'Judgment Calls', Or, Did Roe v. Wade Pass the Arbitrary and Capricious Test?". McCaffery's New Understanding of Tax Edward J. McCaffery (University of Southern California - Law School) has posted A New Understanding of Tax (Michigan Law Review, 2005). Here is the abstract:
Choi, Fisch, and Pritchard on the Lead Plaintiff Provision of the PSLRA Stephen J. Choi , Jill E. Fisch and Adam C. Pritchard (New York University - School of Law , Fordham University School of Law and University of Michigan Law School) have posted Do Institutions Matter? The Impact of the Lead Plaintiff Provision of the Private Securities Litigation Reform Act on SSRN. Here is the abstract:
Rose on Commodification Carol M. Rose (Yale Law School) has posted Whither Commodification? (RETHINKING COMMODIFICATION: CASES AND READING IN LAW AND CULTURE, Martha M. Ertman, Joan C. Williams, eds., New York University Press, 2005) on SSRN. Here is the abstract:
Wednesday, April 20, 2005
Wednesday Calendar
NYU Legal History: Serena Mayeri, Samuel I. Golieb Fellow, NYU School of Law. Rose on Lucas Carol M. Rose (Yale Law School) has psoted The Story of Lucas v. South Carolina Coastal Council: Between Developers and the Deep Blue Sea (ENVIRONMENTAL STORIES, Richard J. Lazarus, Oliver A. Houck, eds., Foundation Press, 2005) on SSRN. Here is the abstract:
Sklansky & Yeazell on Comparing Civil and Criminal Procedure David A. Sklansky and Stephen C. Yeazell (University of California, Los Angeles - School of Law and University of California, Los Angeles - School of Law) have posted Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa (Georgetown Law Journal, 2006). Here is the abstract:
Christians on Tax Treaties and Development Allison Christians (Northwestern University - School of Law) has posted Tax Treaties For Investment And Aid To Sub-Saharan Africa: A Case Study on SSRN. Here is the abstract:
Broekman on a European Constitution Jan M. Broekman (University of Illinois College of Law) has posted Towards a Constitution for the European Union on SSRN. Here is the abstract:
Molot on Textualism Jonathan T. Molot (The George Washington University Law School) has posted The Rise and Fall of Textualism (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:
Tuesday, April 19, 2005
Tuesday Calendar
Georgetown University School of Law: Tim Westmoreland, "Federal Budget". Lewis & Clark Law School: Susan Mandiberg Regulatory Crimes. Welcome to the Blogosphere . . . . . . to Religion Clause by University of Toledo law professor Howard Friedman. Schanzenbach and Tiller on Strategic Juding Under the Sentencing Guidelines Max M. Schanzenbach and Emerson H. Tiller (Northwestern University - School of Law and Northwestern University - School of Law) have posted Strategic Judging Under the United States Sentencing Guidelines: Instrument Choice Theory and Evidence on SSRN. Here is the abstract:
Ribstein Goes Hollywood Larry E. Ribstein (University of Illinois College of Law) has posted Wall Street and Vine: Hollywood's View of Business on SSRN. Here is the abstract:
Wright on Trial Distortion Ronald F. Wright (Wake Forest University - School of Law) has posted Trial Distortion and the End of Innocence in Federal Criminal Law (University of Pennsylvania Law Review, Fall 2005) on SSRN. Here is the abstract:
Leib on a Man's Right to Choose Ethan Leib (Hastings) has posted A Man's Right to Choose (an Abortion?) on SSRN. Here is the abstract:
Program Announcement: Seminar on Slavery & the Constitution
Conference Announcement: Workplace Privacy: Here and Abroad
Monday, April 18, 2005
Weekend Update On Saturday, the Download of the Week was Initial Reflections on the Law and Economics of Blogging by Larry Ribstein and the Legal Theory Bookworm recommended Aristotle: Political Philosophy by Richard Kraut. On Sunday, the Legal Theory Lexicon entry was Overlapping Consensus & Incompletely Theorized Agreements and the Legal Theory Calendar previewed this week's talks and conferences. Also on Sunday (now moved to Monday) you will find the latest version of the Entry Level Hiring Report. Can anyone help with information on Penn, UCLA, or Vanderbilt? Monday Calendar
New York University School of Law; Barry Adler, Avarice-Based Forfeiture. Vanderbilt University Law School: Vikramaditya Khanna, University of Michigan, "Corporate Defendants and the Protections of Criminal Procedure: An Economic Analysis". Dripps on Exit Strategies from Overciminization Donald A. Dripps (University of San Diego - School of Law) has posted Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies (Penn State University Law Review, Forthcoming) on SSRN. Here is the abstract:
Fenster on Transparency Mark Fenster (University of Flordia) has posted The Opacity of Transparency on SSRN. Here is the abstract:
Stone on Rehnquist & the First Amendment Geoffrey R. Stone (University of Chicago Law School) has posted Justice Rehnquist and 'The Freedom of Speech, or of the Press' on SSRN. Here is the abstract:
Raustiala on the Evolution of Territoriality Kal Raustiala (University of California, Los Angeles - School of Law) has posted The Evolution Of Territoriality: International Relations & American Law on SSRN. Here is the abstract:
Joh on Abandoned DNA Elizabeth E. Joh (University of California, Davis - School of Law) has posted Reclaiming 'Abandoned' DNA: The Fourth Amendment and Genetic Privacy (Northwestern University Law Review, Vol. 100, 2006) on SSRN. Here is the abstract:
Sandefur on Lochner Check out Why Lochner was rightly decided by Tim Sandefur on Freespace. Here is a taste:
Conference Announcement: Norms, Reasoning and Knowledge in Technology
Conference Announcement: Tort Law Symposium at the University of Western Ontario
Sunday, April 17, 2005
Legal Theory Calendar
New York University School of Law; Barry Adler, Avarice-Based Forfeiture. Vanderbilt University Law School: Vikramaditya Khanna, University of Michigan, "Corporate Defendants and the Protections of Criminal Procedure: An Economic Analysis".
Georgetown University School of Law: Tim Westmoreland, "Federal Budget". Lewis & Clark Law School: Susan Mandiberg Regulatory Crimes.
NYU Legal History: Serena Mayeri, Samuel I. Golieb Fellow, NYU School of Law.
Florida State University, College of Law: Lars Trägårdh, Columbia University, The Juridification of Politics in the United States and Europe: Historica Roots, Contemporary Debates and Future Prospects. Boston University School of Law: Allan Macurdy. Georgetown Workshop on Transnational Legal Issues: Lama Abu-Odeh, "The Politics of (Mis)recognition: Teaching Islamic Law in the United States". Vanderbilt University Legal Theory Workshop: Dan Farber, University of California - Berkeley Law School, "'Judgment Calls', Or, Did Roe v. Wade Pass the Arbitrary and Capricious Test?".
University of Texas School of Law: Adrienne Davis, University of North Carolina (Visiting professor at UT Law), "Manumission, Miscegenation & Marriage: The Sexual Economy ofAmerican Slavery". The Constitution in Exile In today's New York Times Magazine, Jeffrey Rosen has a piece entitled The Unregulated Offensive. Here is the teaser:
Legal Theory Lexicon: Overlapping Consensus & Incompletely Theorized Agreements
For a short time, the ability to see this pattern may be exhilarating. You begin to see big patterns that transcend courses and doctrines. But after a while, exhilaration may give way to depression. If all the great debates in legal theory boil down to debates about the deepest questions of moral and political philosophy, then the question arises, "Can we make any progress?" Because it sure doesn't look like the debates between deontology and consequentialism or between libertarians and communitarians are going to be decisively resolved any time soon. And that is where today's Legal Theory Lexicon comes into the picture. Even if the deep debates of moral and political philosophy are irresolvable, there may be other ways to make progress in legal theory. In particular, we may be able to use the ideas of "incompletely theorized agreements" (associated with Cass Sunstein) or "overlapping consensus" (associated with John Rawls) to break the impasse on the deep questions. The basic idea is simple. We cannot agree on the deep questions, so go shallow. Find the level at which those who disagree on the deep can nonetheless find common ground. John Rawls calls the idea of common ground by the name "overlapping consensus." Cass Sunstein calls a similar idea, "incompletely theorized agreement." But both Sunstein and Rawls express a similar intuition. When you cannot reach agreement at the deep end of the pool of ideas, head for the shallow end! Deep and Shallow I suspect that you've already gotten it! But just to make sure, let's work through the ideas one by one. The first idea we need is the one that I have expressed by the metaphor of deep and shallow reasons. The metaphor is based on the idea that particular applications (e.g. particular questions of legal doctrine) are at the surface, they are in the shallow end of the pool of ideas. Beneath the surface of particular issues in legal doctrine and legislative policy are deeper disagreements. Disagreements about the a surface level question (e.g. the precise contours of the mailbox rule in contract law) lead to beneath-the-surface issues (e.g. the nature of offer and acceptance) and then to still-deeper issues (e.g. the basis for contractual obligation) and finally to the deepest questions (e.g. the nature of moral obligation). You might picture a chain of reasons, stretching from the surface of legal doctrine down to the depths of political and moral philosophy. Overlapping Consensus John Rawls developed the idea of an "overlapping consensus" as part of the work that led up to his book Political Liberalism. The idea emerged as part of Rawls's work on what he called the problem of stability. In a society governed by Rawls's theory (justice as fairness), the guarantee of basic liberties would mean that individual citizens would be free to adopt their own views about morality and religion. As a result, Rawls argued, it was likely that a variety of comprehensive religious and moral doctrines would emerge. Rawls believed that this fact of pluralism posed a problem for his theory. How could justice as fairness be stable (or reproduce itself) given the plurality of viewpoints that is bound to emerge and persist under conditions of freedom? Rawls's answer to this question was based on the idea that divergent moral and religious conceptions of the good could (despite their diversity) converge on some common ground. That is, citizens who held a plurality of religious and moral beliefs could nonetheless agree on the constitutional essentials--the basic constitutional principles necessary for a society to satisfy the demands of justice as fairness. This meant that different citizens would support justice as fairness for different reasons. Catholics might affirm justice as fairness for reasons found within the Catholic natural law tradition, while secular humanists might affirm the same (or similar) ideas about justice for different reasons. Although a deep consensus might on justice as fairness might be impossible, an "overlapping consensus," Rawls argued, is possible. Incompletely Theorized Agreements Cass Sunstein has a related but different idea. Here is a summary from his article in the Harvard Law Review:
This sort of agreement is incompletely theorized in the sense that it is incompletely specified -- a familiar phenomenon with constitutional provisions and regulatory standards in administrative law. Incompletely specified agreements have distinctive social uses. They may permit acceptance of a general aspiration when people are unclear about what the aspiration means, and in this sense, they can maintain a measure of both stability and flexibility over time. At the same time, they can conceal the fact of large- scale social disagreement about particular cases. There is a second and quite different kind of incompletely theorized agreement. People may agree on a mid-level principle but disagree both about the more general theory that accounts for it and about outcomes in particular cases. They may believe that government cannot discriminate on the basis of race, without settling on a large-scale theory of equality, and without agreeing whether government may enact affirmative action programs or segregate prisons when racial tensions are severe. The connections are left unclear, either in people's minds or in authoritative public documents, between the mid- level principle and general theory; the connection is equally unclear between the mid-level principle and concrete cases. So too, people may think that government may not regulate speech unless it can show a clear and present danger, but fail to settle whether this principle is founded in utilitarian or Kantian considerations, and disagree about whether the principle allows government to regulate a particular speech by members of the Ku Klux Klan. My special interest here is in a third kind of phenomenon -- incompletely theorized agreements on particular outcomes, accompanied by agreements on the low-level principles that account for them. These terms contain some ambiguities. There is no algorithm by which to distinguish between a high-level theory and one that operates at an intermediate or low level. We might consider Kantianism and utilitarianism as conspicuous examples of high-level theories and see legal illustrations in the many (academic) efforts to understand such areas as tort law, contract law, free speech, and the law of equality to be undergirded by highly abstract theories of the right or the good. By contrast, we might think of low-level principles as including most of the ordinary material of legal doctrine -- the general class of principles and justifications that are not said to derive from any particular large theories of the right or the good, that have ambiguous relations to large theories, and that are compatible with more than one such theory. [Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995)] The alternative is to see whether you can find a different level at which the dispute can be resolved. One possibility is that you can find convergence at the surface level. It seems as if deontologists and utilitarians disagree, but perhaps you can craft consequentialist arguments that converge with the arguments of fairness. Another possibility is that you will be able to find converged on what Sunstein calls "mid-level principles." For example, both consequentialists and deontologists might be able to agree that contract formation (normally) requires that both parties manifest and intention to be bound--although they would have different reasons for affirming this proposition. Conclusion The move to "overlapping consensus" or "incompletely theorized agreements" is one of the niftiest and most useful in contemporary legal theory. Add it your personal legal theory toolbox! Saturday, April 16, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Aristotle: Political Philosophy by Richard Kraut. Here is a brief description:
Download of the Week The Download of the Week is Initial Reflections on the Law and Economics of Blogging by Larry Ribstein. Here is the abstract:
Friday, April 15, 2005
Friday Calendar Updated & Moved to the Top of the Blog
University of Texas Law School: Sovereignty Symposium:
Lund on Federalism Nelson Lund (George Mason University School of Law) has posted Fig Leaf Federalism and Tenth Amendment Exceptionalism (Constitutional Commentary, Forthcoming) on SSRN. Here is the abstract:
Hoffman on the Duty To Be a Rational Stockholder David Hoffman (Temple) has posted The 'Duty' To Be a Rational Shareholder" (forthcoming Minn. L. Rev. 2005:3) on SSRN. Here is the abstract:
Entry Level Hiring I just added another report at 8:38 a.m. on Saturday, April 16. If I might be permitted to assume my role as appointments chair at USD for a moment, I'm proud to report that Orly Lobel will be joining Lesley McAllister as entry-level hires at San Diego, and that David McGowan and Miranda McGowan (both from Minnesota) had already accepted lateral offers from USD. You can find the latest version of the preliminary report (96 law schools reporting on 140 hires) by scrolling up or following this link. I need additional information to complete reports for two hires by the University of Arkanasas at Little Rock and I have one outstanding rumour--about Syracuse (at the very end of the report). Also, can anyone report on entry-level hiring (or the lack thereof) at Yale and Stanford? Thanks for helping! Reports continue to come in on a regular basis--two so far this morning and around 8 in just the last two or three days--so I will continue to hold off on the final report for a bit longer. Leiter Reports on Lateral Hiring by Berkeley Brian Leiter reports that U.C. Berkeley has acquired David Sklansky from UCLA & Leti Volpp from American University. Tillers on the Role of History in the Interpretation of the Confrontation Clause Peter Tillers (Cardozo Law School) has posted Legal History for a Dummy: A Comment on the Role of History in Judicial Interpretation of the Confrontation Clause on SSRN. Here is the abstract:
Persily on Court-Drawn Redistricting Nathaniel Persily (University of Pennsylvania Law School) has posted When Judges Carve Democracies: A Primer on Court-Drawn Redistricting Plans (George Washington University Law Review, Forthcoming). Here is the abstract:
Hillman on Private Ordering in Closely Held Firms Robert W. Hillman (University of California, Davis School of Law) has posted The Bargain in the Firm: Partnership Law, Corporate Law, and Private Ordering within Closely-Held Business Associations (Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:
King on Juror Ethics Nancy J. King (Vanderbilt University School of Law) has posted Ethics for the Ex-Juror: Guiding Former Jurors After the Trial (JURY ETHICS, James Levine, John Kleinig, eds., Paradigm Publishers, Forthcoming) on SSRN. Here is the abstract:
Conference Announcement: One Click Over the Line
Book Announcement: Religion and the Rise of Jim Crow in New Orleans
Feminism & the Legal Academy Over at PrawfBlog, Ethan Lieb posts questions from Ariela Migdal on women in the legal academy. Here's a taste:
Journal Announcement: Journal of Ethics & Social Philosophy
Call for Papers: BSET 2006
Thursday, April 14, 2005
Conference Announcements: Ethics at Keele
Does Blogging Help with Article Placement? Greg Goelzhauser (whom I finally met in person not long ago when I gave at talk at Florida State's faculty colloquium) has some interesting thoughts. Here's a taste:
Conglomerate Reports on Teaching Loads Over at Conglomorate, Gordon Smith reports on teaching loads at the top twenty five U.S. law schools. Here is his data:
Thursday Calendar
Fordham University School of Law: William E. Forbath, Lloyd M. Bensten Endowed Chair in Law, Professor History, University of Texas, Visiting Professor, New York University School of Law (2004-2005), "Social Citizenship In England And America: A Comparative Constitutional History":
Frank Michelman (Harvard) (DISTINGUISHED LECTURE) Georgetown Colloquium on Intellectual Property & Technology Law: Arti K. Rai, Duke Law School, Open-Source Genomics and Biopharmaceutical Industry. Princeton Public Law Colloquium: Professor Gordon Silverstein of the University of California - Berkeley, "How Law Kills Politics." University of Texas Law School, Sovereignty Symposium:
Jacobi on Judicial Signaling & Docket Shaping Tonja Jacobi (Northwestern University - School of Law) has posted The Judicial Signaling Game: How Judges Shape their Dockets on SSRN. Here is the abstract:
Langbein on the Duty of Loyalty John H. Langbein (Yale Law School) has posted Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest? (Yale Law Journal, Vol. 114, p. 929, 2005) on SSRN. Here is the abstract:
Dodge on Tax Justice Joseph M. Dodge (Florida State University College of Law) has posted Theories of Tax Justice: Ruminations on the Benefit, Partnership, and Ability-to-Pay Principles (Tax Law Review, Forthcoming) on SSRN. Here is the abstract:
Barkow on the Politics of Sentencing Rachel Barkow (New York University - School of Law) has posted Federalism and the Politics of Sentencing (Columbia Law Review, Vol. 105, May 2005) on SSRN. Here is the abstract:
Solove & Hoofnagle on a Model Regime of Privacy Protection Daniel J. Solove and Chris Jay Hoofnagle (George Washington University Law School and Electronic Privacy Information Center West Coast Office) have posted A Model Regime of Privacy Protection (Version 2.0) on SSRN. Here is the abstract:
Abramowicz on Predictive Decisionmaking Michael Abramowicz has posted Predictive Decisionmaking Virginia Law Review, Vol. 92, 2006 Michael Abramowicz (George Washington University - Law School) here is the abstract:
Rayburn on the Burden of Performance in Sexual Assault Trials Corey Rayburn has posted To Catch a Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials on SSRN. Here is the abstract:
Journal Announcement: Unbound
Conference Announcement: The Unity of Reason
Wednesday, April 13, 2005
Wednesday Calendar
NYU Legal History: Harold Forsythe, Samuel I. Golieb Fellow, NYU School of Law. University of Texas School of Law: Sovereignty Symposium: Neil MacCormick University of Edinburgh, "Is European Democracy Possible? Reflections on the Proposed European Constitution". Vanderbilty Law School Law & Economics Workshop: Jason Johnston, University of Pennsylvania. Barnett Replies to Morrison Randy E. Barnett (Boston University School of Law) has posted Why You Should Read My Book Anyhow: A Reply to Trevor Morrison (Cornell Law Review, Vol. 90, p. 101, 2005) on SSRN. Here is the abstract:
Kaplan on Social Security Reform Richard L. Kaplan (University of Illinois at Urbana-Champaign College) has posted The Security of Social Security Benefits and the President's Proposal (The ElderLaw Report, Vol. 16, Np. 9, pp. 1-5, April 2005) on SSRN. Here is the abstract:
Schroeder on H.L.A. Hart Jeanne L. Schroeder (Cardozo Law School) has posted His Master's Voice: H.L.A. Hart and Lacanian Discourse Theory on SSRN. Here is the abstract:
Sargent on a Catholic Critique of Law and Economics Mark Sargent (Villanova University School of Law) has posted Utility, The Good and Civic Happiness: A Catholic Critique of Law and Economics (Journal of Catholic Legal Studies, Forthcoming) on SSRN. Here is the abstract:
Bagenstos on the Limits of Antidsicrimination Law Samuel R. Bagenstos (Washington University School of Law) has been posted The Structural Turn and the Limits of Antidiscrimination Law (California Law Review, Vol. 94, 2006) on SSRN. Here is the abstract:
Tillman on the Orders Resolutions, and Votes Clause New versions of Seth Tillman's two pieces on Article I, Section 7, Clause 3, are up on SSRN:
Gary S. Lawson, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 TEXAS L. REV. 1373 (April 2005). Seth Barrett Tillman, Reply: The Domain of Constitutional Delegations under the Orders, Resolutions and Votes Clause, 83 TEXAS L. REV. 1389 (April 2005).
I have good reason to believe Madison wrong. Here is the view put forward by a Commonwealth parliamentarian, who is very well informed with regard to eighteenth century British and colonial parliamentary and administrative (treasury) practices. Indeed, my research relied extensively on contacts with foreign and domestic parliamentary officers, legislative clerks and secretaries. Every [final] Order, Resolution, or Vote [of a single house of Congress] to which the [prior or subsequent] Concurrence of the Senate and House of Representatives may be necessary [as statutory authorization or ratification] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect [as a regulation per the prior organic act], shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill [which is a different case]. This new meaning stands our separation of powers jurisprudence on its head. It means the Supreme Court’s holding in INS v. Chadha -- broadly speaking was fundamentally misconceived. Presentment is necessary, but not bicameralism, where single house orders (subject to presentment) are authorized (or ratified) by a prior (or subsequent) statute. At a deeper level it means that our interpretive community, judges, legal academics, academics in related fields (government, political science, and history), lawyers and the American public generally, have forgotten what a clause of the Constitution meant, and that recovery of lost meaning required going to a foreigner! (A pity this was nof discussed at the Breyer-Scalia debates.) Although this trilogy of papers is about the recovery of lost public meaning, in the process of doing so, many of the sainted proponents of legal craftsmanship espousing traditional methods and materials take it on the chin. A few that are heavily criticized include: Justice Story, Stanley Corwin, Charles L. Black, Jr., Justice Antonin Scalia, and Solicitor General Olson. Many of the modern academic proponents of originalism and textualism are, also, somewhat bloodied in the process. Because the names are legion, I will not single out anyone (except Justice Scalia) for special consideration here. (I am confident he will not mind.) But it is a long, long list. And I sincerely hope that, at some point, he or they might reply. Additionally, this paper represents what I think legal scholarship should be -- at least some of the time. It should be fun. I continue the tradition of Lon L. Fuller’s The Case of the Speluncean Explorers by writing the Supreme Court’s missing 1798 opinion in Hollingsworth v. Virginia. And my findings regarding the original public meaning of the ORV Clause are presented in a form not unlike that of a deposition colloquy. I pull no punches. For those who want a taste:
... [U]nder these conditions, when the very words of the Constitution are alien to its interpreters, we cannot but take for granted that such a court [the Chadha Court] would adopt the Madisonian position with regard to the ORV Clause:
... [W]e will have to come to terms with the fact that the proposed paradigm for constitutional interpretation—an interpretive position founded on a parliamentary culture celebrating elections, representative government, and the ability of ordinary people to participate in lawmaking—stands in direct opposition to the deeply held religious convictions of the (long-standing and still) dominant Madisonian cult, espousing antimajoritarianism rationalized through fears of rent-seeking and opportunistic behavior by overbearing majorities composed along factional lines. The many provisions of the Constitution of 1787 contain elements supporting both views. The overwhelming dominance of the latter worldview within modern American legal culture is not a reflection of some obvious transcendental historical or legal truth arising from an uncontested past but rather is a reflection of their Lord and Ladyships being in basic agreement with Madison’s fears and constitutional vision. And that is why some might be afraid, very afraid. After two hundred years, they may come to realize that they backed the wrong horse. (footnote omitted) Singer on Same Sex Marriage & Full Faith & Credit Joseph Singer (Harvard) has posted Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation (Stanford Journal of Civil Rights and Civil Liberties, Vol. 1, 2005) on SSRN. Here is the abstract:
Conference Announcement: Joint Session
Tuesday, April 12, 2005
Petit on the Indeterminacy Debate Over at Scrivener's Error, C.E. Petit has an interesting post on the indeterminacy debate in legal theory--the subject of Sunday's Lexicon. Ribstein on the Law & Economics of Blogging Larry Ribstein (Illinois) has posted Initial Reflections on the Law and Economics of Blogging on SSRN. Here is the abstract:
Update: Posts on this from Howard Bashman and Glenn Reynolds. Plus there is a nice post over at PrawfsBlawg. Here's a taste:
Law on the Paradox of Omnipotence David S. Law (University of San Diego School of Law) has posted The Paradox of Omnipotence: Courts, Constitutions, and Commitments on SSRN. Here is the abstract:
Wednesday Calendar
University of Chicago, Law & Economics: Alan Auerbach, Robert D. Burch Professor of Economics and Law, University of California, Berkeley, and NBER, Budget Windows, Sunsets, and Fiscal Control:
Kerr on Search & Seizure in a Digital World Orin S. Kerr (The George Washington University Law School) has posted Searches and Seizures in a Digital World (Harvard Law Review, Vol. 119, 2006) on SSRN. Here is the abstract:
Two by Solove Daniel J. Solove has posted two papers on SSRN:
Shepherd on Permanent Vegetative States Lois Shepherd (Florida State University - College of Law) has posted In Respect of People Living in a Permanent Vegetative State - And Allowing Them to Die on SSRN. Here is the abstract:
Macklem on the Paradox of Self-Determination Patrick Macklem (University of Toronto - Faculty of Law) has posted Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination on SSRN. Here is the abstract:
Swaine on Treaty Reservations Edward T. Swaine (University of Pennsylvania - Legal Studies Department) has posted Reserving on SSRN. Here is the abstract:
Mamill on Business's Fair Share of the Tax Burden Susan Pace Hamill (University of Alabama School of Law) has posted A Moral Perspective on "Big Business" Fair Share of America's Tax Burden (University of St. Thomas Law Journal, Vol. 1, No. 2, p. 857, 2004) on SSRN. Here is the abstract:
Mann on Credit Cards & Bankruptcy Ronald Mann (Texas) has posted Credit Cards, Consumer Credit, and Bankruptcy on SSRN. Here is the abstract:
Journal Announcement: Review of Law and Economics
Monday, April 11, 2005
Monday Calendar
Columbia Law & Economics, Jeffrey J. Rachlinski, Cornell Law School, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding,(Authored with Andrew J. Wistrich and FChris Guthrie):
Hofstra University School of Law: Neal Devins, William & Mary Law School, “Reflections on the Rehnquist Court” NYU Law School: Mattias Kumm. Huigens on Williams v. New York Kyron Huigens has posted Solving the Williams Puzzle (Columbia Law Review, Vol. 105, No.4, May 2005). Here is the abstract:
Oman on the Theory of Contract Nathan Oman (Sidley Austin) has posted Corporations and Autonomy Theories of Contract: A Critique of the New Lex Mercatoria on SSRN. Here is the abstract:
Two By Eisikovits Nir Eisikovits has posted two articles to SSRN:
Prescott & Star on Improving Jury Decision Making After Blakeley J. J. Prescott (MIT Department of Economics; Michigan Law School) & Sonja B. Starr (Goldstein & Howe, P.C.) have posted Improving Criminal Jury Decision Making After the Blakely Revolution on SSRN. Here is the abstract:
New at Nellco The following legal history papers are new at NELLCO:
Sunday, April 10, 2005
Legal Theory Calendar
Columbia Law & Economics, Jeffrey J. Rachlinski, Cornell Law School, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding,(Authored with Andrew J. Wistrich and FChris Guthrie):
Hofstra University School of Law: Neal Devins, William & Mary Law School, “Reflections on the Rehnquist Court” NYU Law School: Mattias Kumm.
University of Chicago, Law & Economics: Alan Auerbach, Robert D. Burch Professor of Economics and Law, University of California, Berkeley, and NBER, Budget Windows, Sunsets, and Fiscal Control:
NYU Legal History: Harold Forsythe, Samuel I. Golieb Fellow, NYU School of Law. University of Texas School of Law: Sovereignty Symposium: Neil MacCormick University of Edinburgh, "Is European Democracy Possible? Reflections on the Proposed European Constitution". Vanderbilty Law School Law & Economics Workshop: Jason Johnston, University of Pennsylvania.
Fordham University School of Law: William E. Forbath, Lloyd M. Bensten Endowed Chair in Law, Professor History, University of Texas, Visiting Professor, New York University School of Law (2004-2005), "Social Citizenship In England And America: A Comparative Constitutional History":
Frank Michelman (Harvard) (DISTINGUISHED LECTURE) Georgetown Colloquium on Intellectual Property & Technology Law: Arti K. Rai, Duke Law School, Open-Source Genomics and Biopharmaceutical Industry. Princeton Public Law Colloquium: Professor Gordon Silverstein of the University of California - Berkeley, "How Law Kills Politics." University of Texas Law School, Sovereignty Symposium:
University of Texas Law School: Sovereignty Symposium:
Legal Theory Lexicon: Indeterminacy
The Indeterminacy Debate The indeterminacy thesis is associated with legal realism, but in its most strident form, it is most strongly identified with the Critical Legal Studies movement--a loose and multifaceted cluster of legal scholars that became very prominent in the 1980s. The indeterminacy debate is about the claim that the law does not constrain judicial decisions. Put differently, the claim is that all cases are hard cases and that there are no easy cases. The strongest version of the claim is the notion that any result in any legal dispute can be justified as the legally correct outcome, but the thesis can be modified or weakened in various ways. What does the indeterminacy thesis mean? Let's call the claim that the laws (broadly defined to include cases, regulations, statutes, constitutional provisions, and other legal materials) do not determine legal outcomes the indeterminacy thesis. Because there are many different versions of the indeterminacy thesis, our approach will be to identify clearly the distinct versions of the indeterminacy thesis and then to consider each version of the thesis on its own merits. Indeterminacy versus Underdeterminacy The next step in clarifying the indeterminacy debate is to distinguish between "indeterminacy" and "underdeterminacy" of law. Thus far, we have accepted the implicit assumption that indeterminacy and determinacy are exhaustive categories, i.e. that the decision of a case is either determined by the law or it is indeterminate. This assumption is not correct. A legal dispute may be constrained by the law, but not determined by it. Roughly, an case is underdetermined by the law if the outcome (including the formal mandate and the content of the opinion) can vary within limits that are defined by the legal materials. This approximation can be made more precise by considering the relationship between two sets of outcomes of a given case. The first set consists of all possible results — all the imaginable variations in the mandate (affirmance, reversal, remand, etc.) and in the reasoning of the opinion. The second set consists of the outcomes that can be squared with the law — the set or legally acceptable outcomes. The distinctions between indeterminacy, underdeterminacy and determinacy of the law with respect to a given case may be marked with the following definitions: Is the law radically indeterminate? The strongest (the most ambitious) claim about the indeterminacy of law is the claim that in every possible case, any possible outcome is legally correct. In other words, the strong indeterminacy thesis is the claim that the law is radically indeterminate:
The Argument from Easy Cases One way to establish that there is at least one possible case in which at least one outcome is legally incorrect has been called "the argument from easy cases" by Fred Schauer. In its simplest form, the argument from easy cases points to a hypothetical case in which at least one outcome is legally incorrect. The following discussion attempts to formulate one such easy case:
Changing the Hypothetical Of course, we can easily change the hypothetical so that the legally correct outcome would change. Just add a conspiratorial conversation at the beach that does violate the Sherman Act. But the fact that the hypothetical can be changed so as to change the legally correct outcome is not responsive to the argument from easy cases. Let us stipulate for the sake of argument that it is always be possible to add facts to an easy case such that the addition of the new facts will change the legally correct outcome of the case. This does not demonstrate that there are no easy cases. Quite the contrary, the fact that the advocate of the strong indeterminacy thesis needed to add facts to the easy case in order to change the legally correct outcome shows that as originally stated the easy case was not indeterminate. If the strong indeterminacy thesis were true, then a reasonable legal argument should be available on the facts as originally stated in the hypothetical. The additional facts should not be necessary. That facts must be added to transform an easy case into a hard one demonstrates that the law does constrain the set of legally correct outcomes. Is a modest version of the indeterminacy thesis defensible? If the strong indeterminacy thesis cannot be supported, is there a more modest claim about indeterminacy that is defensible and has critical bite? One modest version of the indeterminacy thesis might be the following: in most (or almost all) of the cases that are actually litigated, the outcome is underdetermined by the law. This claim about indeterminacy is not refuted by the argument from hypothetical easy cases. Confirmation of the actually-litigated underdeterminacy thesis would require empirical investigation, but there are some good reasons to believe that cases which actually proceed to filing, trial, or appeal will frequently be underdetermined by the law. Litigants will rarely have an incentive to settle easy cases. For example, in a civil dispute where the law gives a determinate answer to the question of who will win and what the amount of their judgment will be, the parties to litigation will usually prefer to settle, rather than incur the expenses of litigation. Uncertainty about the law is one of the factors that selects which cases will be filed, go to trial, and be appealed. This point should not be exaggerated, however: litigation may proceed for any number of reasons, including an irrational overconfidence in a hopeless case, uncertainty about facts in a case in which the law is clear, and so forth. Important Cases Another modest version of the indeterminacy thesis claims that while many ordinary cases are roughly determinate, all the really important cases are indeterminate. Put more precisely, the claim might be that the important issues in important cases are underdetermined by the law. If true, this claim might preserve almost all of the critical force of the strong indeterminacy thesis. Yes, there are easy cases, but those cases are unimportant. One difficulty with the important case version of the indeterminacy thesis is its potential circularity. Our concept of what counts as an important case may have indeterminacy as a component. Part of what makes a case important is that the result is not certain or predictable; if we all knew how the case would come out, we would not be interested. Likewise, the Supreme Court may select cases in part on the basis of their legal indeterminacy. Conclusion I have just begun to scratch the surface of the indeterminacy debate, but I hope that I've provided enough perspective so that you can begin to think about this important question on your own. As I'm sure you know by now, I am not a fan of the radical indeterminacy thesis, but I also think it is important to recognize that the law is underdeterminate in important ways. For more on the indeterminacy debate, see Lawrence Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987). (online here) Saturday, April 09, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends a contemporary classic The Right to Private Property by Jeremy Waldron. This is a marvelous book, and essential reading for anyone interested in the theory of property law. Highly recommended! Download of the Week The Download of the Week is The Political Psychology of Redistribution by Ed McCaffery and Jonathan Baron (University of Southern California - Law School and University of Pennsylvania - Department of Psychology). Here is the abstract:
Friday, April 08, 2005
Spooner Award to Barnett Randy Barnett's Restoring the Lost Constitution: The Presumption of Liberty is the 2005 winner of the Lysander Spooner Award for Advancing the Literature of Liberty for books published in 2004. Huigens on Duress Kyron Huigens has posted Duress Is Not A Justification on SSRN. Here is the abstract:
Burk on Law as a Network Standard Dan L. Burk (University of Minnesota Law School) has posted Law as a Network Standard (International Journal of Communications Law Policy, Forthcoming). Here is the absract:
Stake on Law School Rankings Jeffrey Evans Stake (Indiana University School of Law - Bloomington) The Interplay between Ranking Criteria and Effects: Toward Responsible Rankings on SSRN. Here is the abstract:
Suggs on Law & Economics and Racial Inequality Robert E. Suggs (University of Maryland - School of Law) has posted Poisoning the Well: Law & Economics and Racial Inequality on SSRN. Here is the abstract:
Ku on Grokster Raymond Shih Ray Ku (Case Western Reserve University - School of Law) has posted Grokking Grokster on SSRN. Here is the abstract:
Thursday, April 07, 2005
McAdams on Conformism Richard H. McAdams (University of Illinois at Urbana-Champaign - College of Law) has posted Conformity to Inegalitarian Conventions and Norms: The Contribution of Coordination and Esteem (The Monist, Vol. 88, 2005) on SSRN. Here is the abstract:
Hadfield on Economic and Democratic Theories of Civil Litigation Gillian Hadfield (The Law School, University of Southern California) has posted Exploring Economic and Democratic Theories of Civil Litigation: Differences Between Individual and Organizational Litigants in the Disposition of Federal Civil Cases (Stanford Law Review, 2005) on SSRN. Here is the abstract:
Posner on the Nonexistence of Default Penalty Rules in Contract Law Eric A. Posner (University of Chicago Law School) has posted There Are No Penalty Default Rules in Contract Law on SSRN. Here is the abstract:
Call for Papers: Thinking in/after Utopia
Call for Papers: Philosophy, Economics, and Public Policy
Wednesday, April 06, 2005
Welcome to the blogosphere . . . . . . to Dan Markel & Ethan Leib (two newly minted lawprofs) on PrawfsBlog. Kalt on Levy Brian C. Kalt (Michigan State University College of Law) has posted The People's Forest and Levy's Trees: Popular Sovereignty and the Origins of the Bill of Rights (Constitutional Commentary, Vol. 17, No. 1, p. 119, 2000) on SSRN. Here is the abstract:
Entry Level Hiring There are two more additions to the entry level hiring report this morning--Tulane & Whittier. Scroll down or click on this link for the most recent version of the 2005 report. Lindgren on the the Bellesiles Scandal James Lindgren (Northwestern University Law School) has posted Fall from Grace: Arming America and the Bellesiles Scandal (Yale Law Journal, Vol. 111, p. 2195, 2002). Here is the abstract:
Ackerman & Fontana on Jefferson & the Electoral College Bruce Ackerman and David Fontana (Yale Law School and Yale Law School/Oxford University) have posted Thomas Jefferson Counts Himself Into the Presidency (Virginia Law Review, Vol. 90, p. 551, 2004) on SSRN. Here is the abstract:
McCaffery & Baron on the Psychology of Redistribution Edward J. McCaffery and Jonathan Baron (University of Southern California - Law School and University of Pennsylvania - Department of Psychology) have posted The Political Psychology of Redistribution on SSRN. Here is the abstract:
Tuesday, April 05, 2005
Hasen on FEC Regulation of Blogging Check out The Ripple Effects of the FEC's Rules on Political Blogging by Rick Hasen on Findlaw. Cunningham on SSRN Lawrence A. Cunningham (Boston College (Law School)) has posted Scholarly Profit Margins and the Legal Scholarship Network: Reflections on the Web on SSRN. Here is the abstract:
Hasen on Avoiding Election Meltdown Rick Hasen (Loyola Law School (Los Angeles)) has posted Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown on SSRN. Here is the abstract:
Mann & Belzley on Internet Intermediate Liability Ronald J. Mann & Seth R. Belzley have psoted The Promise of Internet Intermediary Liability (forthcoming Wm. and Mary L. Rev., October 2005) on SSRN. Here is the abstract:
Conference Announcement: Naturalized Epistemology
Call for Papers: The Legacy of John Courtney Murray for Law & Politics
Monday, April 04, 2005
Hasen on the Nuclear Option in the Conclave of Cardinals Rick Hasen has an op/ed on New Republic Online (registration required) concerning the election of the next Pope. Here is a taste:
Ginsburg on International Judicial Lawmaking Tom Ginsburg (University of Illinois College of Law) has posted International Judicial Lawmaking (Virginia Journal of International Law, Vol. 45, Spring 2005) on SSRN. Here is the abstract:
Etienne on the Ethics of Cause Lawyering Margareth Etienne (University of Illinois at Urbana-Champaign - College of Law) has posted The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyers as Cause Lawyers on SSRN. Here is the abstract:
Call for Papers: Bayt Al-Hikma
Conference Announcement: Environmental Ethics, Science, and Policy
Clermont on Jurisdictional Facts Kevin M. Clermont (Cornell University - School of Law) has posted Jurisdictional Fact on SSRN. Here is the abstract:
Sunday, April 03, 2005
Reaction to Today's Lexicon Over at Ex Post, "T" has posted a reaction to today's Legal Theory Lexicon entry. Here is a taste:
Sunday Calendar
Finally, if you would like to learn more about the connections between virtue ethics and normative legal theory, you might check out Virtue Jurisprudence: A Virtue-Centered Theory of Judging. You can also take a look at the Legal Theory Lexicon entry on Virtue Jurisprudence. Legal Theory Lexicon: Strict Construction & Judicial Activism
Strict Construction Strict construction is short hand for the idea that the United States Constitution should be strictly construed. The phrase appears to have become popular as a campaign slogan used by Richard Nixon when he ran for President in 1968. Nixon promised that he would appoint judges who were "strict constructionists" as opposed to the "judicial activism" that characterized the Warren Court. The question is: what does strict construction mean? Is there really a method of constitutional interpretation described by the phrase "strict construction" or is this a mere political slogan? The confusion engendered by the term is illustrated by the following definition (offered on law.com):
Judicial Activism In conservative political discourse in the United States, "strict construction" is good and "judicial activism" is bad. But what is judicial activism? Once again, it is not clear that this phrase has any real meaning. The standard argument against the use of the term "judicial activism" is that it translates best as "judicial decision making with which I disagree." To see why this is so, once again let us consider the possible interpretations of the phrase: Conclusion This post has had two goals. The first is to convince you that "strict construction" and "judicial activism" are simply not very useful as theory terms for academic constitutional lawyers. The second is to illustrate the importance of clear explication of constitutional concepts. Constitutional theory is a value-laden activity. Debates about positions in constitutional theory are frequently extensions of debates in moral and political theory generally. For that reason, it is very important for constitutional theorists to be very careful about their use of language. Saturday, April 02, 2005
SSRN Tournament of Law Schools--Update SSRN has an updated ranking of law schools by downloads in the last twelve months. You need to register to view the full list. Here are the top twenty:
Saturday Calendar
Legal Theory Bookworm I'm attending the Conference on Virtue Ethics vs Kantian Ethics at the University of Cincinatti, so I thought I would recommend three books on virtue ethics by conference participants:
Download of the Week The Download of the Week is Dworkin on the Semantics of Legal and Political Concepts by Dennis Patterson. Here is the abstract:
Grading Justice Kennedy: A Reply to Professor Carpenter by Randy Barnett The Constitutionalization of Democratic Politics - The Supreme Court, 2003 Term by Rick Pildes Friday, April 01, 2005
Friday Calendar
UCLA School of Law: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Portfolios" Lindgren & Heather on Counting Guns James Lindgren and Justin Lee Heather (Northwestern University Law School and Northwestern University Law School) have posted Counting Guns in Early America (William & Mary Law Review, Vol. 43, No. 5, p. 1777, 2002) on SSRN. Here is the abstract:
Picker on Sony Randal C. Picker (University of Chicago Law School) has posted two new papers on SSRN:
Nadler on Flouting the Law Janice Nadler (Northwestern University School of Law) has posted Flouting the Law (Texas Law Review, Vol. 83, 2005) on SSRN. Here is the abstract:
Kingsbury on the International Legal Order Benedict Kingsbury (New York University - School of Law) has posted The International Legal Order on SSRN. Here is the abstract:
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