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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Tuesday, May 31, 2005
Book Announcement: Rossi on Regulatory Bargaining and Public Law
Smith on Disowning Our Past Steven Douglas Smith (University of San Diego School of Law) has posted Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past? on SSRN. Here is the abstract:
Kamisar on Dickerson Yale Kamisar (University of San Diego - School of Law) has posted Dickerson v. United States: The Case that Disappointed Miranda's Critics - And then its Supporters on SSRN. Here is the abstract:
Galle on Independent Executive Authority to Interpret the Constitution Brian Galle has posted The Justice of Administration: Judicial Responses to Executive Claims of Independent Authority to Interpret the Constitution on SSRN. Here is the abstract:
Book Announcement: Economics for Lawyers
Call for Papers: Ancient Philosophy in the Contemporary World
Monday, May 30, 2005
Onwuachi-Willig on the "Marriage Cure" Angela Onwuachi-Willig (University of California, Davis - School of Law) has posted The Return of the Ring (California Law Review, Vol. 93, 2005) on SSRN. Here is the abstract:
Matasar on the Fall of American Legal Education Richard Allan Matasar (New York Law School) has posted The Rise and Fall of American Legal Education (New York Law School Law Review, Vol. 49 No. 2, 2004-2005) on SSRN. Here is the abstract:
Lieberman on Bad Writing Jethro Lieberman (New York Law School - Law) has posted Bad Writing: Some Thoughts on the Abuse of Scholarly Rhetroic (New York Law School Law Review, Vol. 49, pp. 649-664, 2004-2005) on SSRN. Here is the abstract:
Garnett on Charitable Choice and Discrimination Check out Rick Garnett's response to The "Charitable Choice" Bill That was Recently Passed by the House By Vik Amar & Alan Brownstein. Legal Theory Lexicon: Legal Theory, Jurisprudence, and the Philosophy of Law
As always, this entry in the Legal Theory Lexicon series is aimed at law students, especially first-year law students with an interest in legal theory. Who Cares About Terminology Why should we care about terminology? Who cares what goes under the label “jurisprudence” or “philosophy of law” or “legal theory”? Well, of course, there is a sense in which we shouldn’t care at all. What matters in a deep way is the substance of theorizing about law. On the other hand, these labels are important for a different reason—because their use tells us something about the sociology of the academy. When people argue about what “jurisprudence” really is, the terminological dispute may reflect a conflict over “turf” and “authority.” Disciplinary Lines and Theorizing About Law Very broadly speaking, the turf of high-level legal theory is disputed by at least four groups. First and (still) foremost are the academic lawyers, those whose graduate-level training is exclusively (or almost exclusively) in law as it is taught in the legal academy. Second, there are the economists—some of whom are primarily (or exclusively) trained in economics; while others legal economists were trained primarily by law professors. Third, there is the “law and society” movement—broadly defined as the study of law from a social science (but noneconomic) perspective. Law-and-society theorists may have been trained in political science or sociology or criminology, but many may have been trained in the legal academy as well. Fourth, there is the law-and-philosophy movement, with “analytic legal philosophy” as the focal point of a variety of philosophical approaches. Many philosophers of law have formal philosophical training, but some were trained in law or political theory. So, what about the turf wars? Those who use the phrase “philosophy of law” tend to be philosophers, while the term “jurisprudence” is more strongly associated with the legal tradition of theorizing about the law, but there is frequently a blurring of the these two terms. From the 1960s on, a single figure had a dominant influence in defining the content of “philosophy of law” courses in philosophy departments and “jurisprudence” courses in the law schools—that figure was H.L.A. Hart. Of course, there were many, many exceptions, but for quite a long time the standard course in both disciplines included as a central, organizing component, an examination of Hart’s ideas, either The Concept of Law, Hart’s great book, or the Hart-Fuller debate in the Harvard Law Review. When I was a student in the 70s and early 80s, I thought that “jurisprudence” and “philosophy of law” were synonymous—and that both were references to analytic philosophy of law in the tradition of Hart and included figures like Dworkin and Raz. One consequence of the “philosophicalization” of jurisprudence was the move to fold moral and political philosophy into jurisprudence. I have a very clear memory of browsing the law shelves of the textbook section of the UCLA bookstore in the late 70s, and discovery John Rawls’s A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia as the texts for the jurisprudence course. I have always assumed that similar courses were offered elsewhere, although I could be wrong about that. Philosophy is important as a matter of the sociology of the legal academy, but it is not the only important interdisciplinary influence: economics, political science, and sociology, each of these also has a major influence. Given that the “jurisprudence” course was “captured” by philosophers, how could these other approaches to legal theorizing express their theoretical framework in the law school curriculum. One mode of expression was the alternative theory course—“Law and Economics” and “Law and Society” were the two leading competitors of “Jurisprudence.” Moreover, the tradition of distinctively legal thinking about high legal theory has never died out. American Legal Realism was largely the product of the law schools—although many other disciplines figured in the realist movement. Likewise, Critical Legal Studies was largely a phenomenon of the legal academy. Some jurisprudence or legal theory courses incorporate philosophy of law, law and economics, and law and society into a course that is taught from a distinctively legal point of view. What can we say about our three terms—jurisprudence, philosophy of law, and legal theory? Jurisprudence My sense is that most Anglo-American legal academics view “jurisprudence” as mostly synonymous with “philosophy of law”. This is not a unanimous view. There is still a lingering sense of “jurisprudence” that encompasses high legal theory of a nonphilosophical sort—the elucidation of legal concepts and normative theory from within the discipline of law. Moreover, in other legal cultures, for example, in Europe and Latin America, my sense is that the move to identify jurisprudence with philosophy of law never really took root. Philosophy of Law The meaning of the phrase “philosophy of law” is inevitably tied up in the relationship between the two academic disciplines—philosophy and law. In the United States and the rest of the Anglophone world, “philosophy of law” is a subdiscipline of philosophy, a special branch of what is nowadays frequently called “normative theory.” Of course, there are many different tendencies within academic philosophy generally and the philosophy of law in particular. Still, the dominant approach to philosophy of law in the Anglophone world is represented by “analytic legal philosophy,” which might be defined by the Hart-Dworkin-Raz tradition on the one hand and by the larger Austin-Wittgenstein-Quine-Donaldson-Kripke tradition on the other. Coexisting with the analytic tradition in the philosophy of law are many other philosophical approaches. These include Hegelianism, neo-Thomism, Marxism, as well as the contemporary continental philosophical tradition, ranging from Habermas (with close affinities to the analytic tradition) to Foucault and Derrida (with much more tenuous links). The philosophy of law covers a lot of ground. An important line of development focuses on the “what is law?” question, but much contemporary legal philosophy is focused on normative questions in specific doctrinal fields. The application of moral and political philosophy to questions in tort and criminal law is an example of this branch of contemporary legal philosophy. Legal Theory Legal theory is a much broader and encompassing term, encompassing the philosophy of law and jurisprudence as well as theorizing from a variety of other perspectives, including law and economics and the law and society movement. In my opinion, “legal theory” is currently the best neutral term for referring to legal theorizing, broadly understood. It allows us to avoid the turf wars and sectarian disputes that make the word “jurisprudence” somewhat problematic. Conclusion When you start theorizing about law, you are likely to adopt some term or phrase to describe your activity. “I’m doing jurisprudence,” or “I’m a philosopher of law.” I hope that this entry in the Legal Theory Lexicon will help you use these labels with some awareness of their history and the controversies that surround their use. Saturday, May 28, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends a pair of books, Transformation of American Law, 1780-1860 and The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy, both by Morton J. Horwitz. Here´s a blurb:
Download of the Week The Download of the Week is The Perils of Pervasive Legal Instrumentalism by Brian Z. Tamanaha. I love this paper! Here is the abstract:
Conference Announcement: The Unity of Reason at St. Andrews
Journal Announcement: New Issue of the Yale Law Journal
Friday, May 27, 2005
Blogging from Granada, Part Three It’s Friday morning in Granada, and I’m sitting in a mostly empty (and huge) auditorium. William Twining, Professor Emeritus at University College, London, is this morning’s speaker, and his talk is entitled “General Jurisprudence and Globalization.” Twining has a distinctive voice among legal theorists; he does legal theory that is high level, abstract, and interesting, but from a distinctively “legal” perspective—bucking the trend towards interdisciplinarity that dominates the American legal academy. I find Twining’s work to be stimulating and refreshing, so I am looking forward to this talk. Twining begins. His aim, he says, is to revive a “general jurisprudence” for a globalized society. Anglo-American jurisprudence, he suggests, has been “parochial.” But his perspective is itself parochial—reflecting his own immersion in the Angle-American tradition. Jurisprudence is theorizing about the law that is ideological in the nonpejorative sense—linking views about law to the rest of our views about the world. Jurisprudence has a crucial role in the development of law as a healthy discipline. The heritage of Anglo American jurisprudence is parochial in three ways: 1) it has been done within the western legal tradition, 2) it is focused almost exclusively on state law and ignores other forms of law, including religious and transnational systems of legal ordering, and 3) the agenda of Anglo-American jurisprudence is quite limited, ignoring many important issues. The central argument of the paper is that law is becoming more cosmopolitan and jurisprudence needs to face this. Globalization challenges some of the basic assumptions of contemporary Anglo-American jurisprudence. Twining says he teaches a course on globalization, and in his course, he bans the “G-words,” references to global and globalization, unless the words are justified and defined clearly. He does this because there is a tendency to overuse the word globalization, and to ignore the difference between truly global phenomena and other transnational spheres. Much of transnational law is not global. The global perspective can actually encourage bad theorizing, that seeks to universal phenomena that are actually not universal. He suggests that although theories like Brian Tamanaha’s are valuable, there is a need for more data-driven. General jurisprudence has a number of different meanings. Twining’s list includes, for example, general as “universal” and general as “abstract.” So if we talk about general jurisprudence, we need to be clear about what we mean. A central issue of a general jurisprudence should be: how useful is it to generalize across different legal cultures. Generality and particularity are relative. A general jurisprudence need not be a “universal” jurisprudence. Jurisprudence, legal theory, and socio-legal studies have similar but not identical meanings. Some questions, e.g., theories of justice, belong to philosophy of law. Other questions, e.g. the difference between questions of law and fact, are not topics on which philosophers have any special expertise. Twining then discusses the tendency to assimilate jurisprudence and philosophy of law. Brian Leiter, for example, argued that no American legal theorist (Holmes, Pound, etc.) has made a significant contribution to philosophy. Twining maintains that not all of the issues that are important to legal theory are philosophically interesting. The revival of contact between analytic philosophy and jurisprudence inaugurated by H.L.A. Hart has had important beneficial effects. But there has been a growing sense of dissatisfaction with philosophy of law. Two common complaints: (1) legal philosophy has become too detached from legal practice, and (2) legal philosophy is too narrow. Charges of narrowness can mean several different things. One point is that legal philosophy has been isolated from socio-legal studies and ignored the realist turn to looking at law in action. The method of conceptual analysis, nonetheless, can be useful to socio-legal studies. Many have argued that legal doctrine needs to be understood in context. Socio-legal studies and analytic jurisprudence have been mutually antagonistic, but recently there are signs of reconciliation. Brian Tamanaha’s use of Hart has been especially important in this regard. Recently, there have been arguments in favor of a broad conception of law that includes non-state law. This goes beyond the assumption that there are only two kinds of law: municipal and international. The picture of law that focuses only on these two kinds of law is too narrow—it omits religious law, like Islamic Law, for example. Yet these forms of law are important to understanding law in a global context. Several serious thinkers, including Tamanaha and Glenn, have made the case for taking non-state law seriously. Twining’s paper discusses this in more detail, but he says he will omit those arguments from his oral presentation. The central point of taking non-state law into account is that they are crucial for understanding legal phenomenon. He suggests that a “master plan” is not appropriate, but he does offer some examples of what a cosmopolitan theory might be like. Dennis Patterson asks a question: If you believe that the business of philosophy is defining the necessary and sufficient conditions for the application of concepts, then philosophy is the master discipline and there is no room for sociology. But if you believe that metaphysics and conceptual analysis are dead (along the lines suggested by Brian Leiter), then there is no room for philosophy. Is there any middle ground? Twining expresses some skepticism about Leiter’s Quinean naturalism and suggests that Nicola’s Lacey’s work offers a better model. Lacey suggests that questions like judge’s conceptions of their role, modes of institutionalization, and so forth must be taken into account. Twining suggests that he is after a middle ground, but that he does not need a controversial philosophical theory to get it. The questions continue, but I am not putting down my pen—or rather, powering down my laptop for now! It was a provocative session that I very much enjoyed. Thursday, May 26, 2005
Formalism and Systems Theory Check out A Defense of Formalism from a Systems Theory Point of View over at Law and Society Weblog. Here´s a taste:
New from Law & Politics Book Review
CATASTROPHE: RISK AND RESPONSE, by Richard A. Posner. New York; Oxford University Press, 2004. 336pp. Hardback. £16.99/$28.00. ISBN: 0-19-517813-0. Reviewed by Stephen Meinhold. HOW LAWYERS LOSE THEIR WAY: A PROFESSION FAILS ITS CREATIVE MINDS, by Jean Stefancic and Richard Delgado. Durham: Duke University Press, 2005. 152pp. Cloth. $69.95. ISBN: 0-8223-3454-2. Paper. $19.95. ISBN: 0-8223-3563-8. Reviewed by Patrick Schmidt. THE SUPREME COURT: A CONCISE HISTORY, by Robert W. Langran. New York: Peter Lang, 2004. 149pp. Cloth. €56.00 / £40.00 / $55.95. ISBN: 0-8204-7109-7. Paper. €23.00 / £17.00 / $22.95. ISBN: 0-8204-6162-8. Reviewed by Samuel B. Hoff. SEEKING JUSTICES: THE JUDGING OF SUPREME COURT NOMINEES, by Michael Comiskey. Lawrence: University Press of Kansas, 2004. 256pp. Cloth. $40.00. ISBN: 0-7006-1346-3. Paper. $17.95. ISBN: 0-7006-1347-1. Reviewed by Kevin J. McMahon. Book Announcement: Straightforward by Ayres & Brown
Journal Announcement: New Issue of Theoretical Inquiries in Law
Tom Bell on the US News Rankings Tom Bell has reverse engineered the U.S. News & World Report ranking system. Take a look at this post and this one. Wednesday, May 25, 2005
More on Formalism and Instrumentalism Check out this post at Law and Society Blog. Here´s a taste:
Blogging from Granada, Part Two The second speaker is David Held, whose lecture is entitled, “Principles of Cosmopolitan Order.” He begins with the usual words of appreciation. He then says that he will defend radical democratic cosmopolitanism, Habermas in the middle, and skeptical Westphalianism. Held says that his recent work has focused on globalization, and he now will talk about the principles underlying cosmopolitanism. He says cosmopolitanism is concerned with the “ethical, cultural, and legal basis” of political order in a world in which nation states are still important, but not exclusively. The are not ontologically privileged. States can be judges by their success or failure. States have failed spectacularly. Held then discusses the Stoic and Kantian roots of cosmopolitanism. The Stoics referred to themselves as “cosmopolitan.” Stoics sought to replace the polis with the cosmos. Humans live both in a local community and a wider community of ideals and aspirations. The second account of cosmopolitanism is found in the Kant’s writings. Kant believed that enlightenment required the free use of public reason and that a right of participation in a cosmopolitan order is required by the idea of unrestrained dialogue. Held then outlines eight principles of cosmopolitanism:
2. active agency, 3. personal responsibility and accountability, 4. consent, 5. collective decision-making about public matters through voting procedures, 6. inclusiveness and subsidiarity, 7. avoidance of serious harm, 8. sustainability. Can a bridge be built between individual will and the general will? Cosmopolitan political philosophy does not deny the significance of diversity or the impossibility of unanimity. Cosmopolitanism takes difference seriously & talks about how it can be accommodated. Held then discusses thick and thin cosmopolitanism. The thick version requires equal concern for all. The thin version limits the scope of equal concern to certain issues. The meaning of the eight principles needs to be worked out. Held calls his perspective “layered.” This approach builds on principles that all might agree to. We start with ideas like equal respect, but specify their meaning through national and transnational public debate. Where do the principles come from? How are they justified? They are not self-justified. We should distinguish the origins and their justification. The principles are dependent on two metaprinciples: (1) autonomy and (2) impartialist reasoning. Autonomy is at the core—a political, not metaphysical idea, in Rawls’s sense. It builds on the idea of the citizen as a free and equal person. Autonomy is the core of the idea of democratic citizenship and the basis for the idea of consent and self-determination. The meta principle of autonomy is the basis of the first seven principles. The language of autonomy generates a commitment to the idea that all persons should be equally free—with equal liberty to pursue interests without undue interference. There are certain languages the nurture equality dignity and others that seek to ignore it. Testing the generalizability of claims and interests involves “reasoning from the point of view of others.” The impartiality thesis says that the court of appeal for judging moral standards is one of which no particular individual or group has special standards. A number of particular tests can be used. Are all points of view considered? Would the outcome be accepted irrespective of social position? This does not result in a simple deductive proof. Rather it is a heuristic for testing candidate principles of morality. The tests are concerned with “reasonable rejectability”—always testable in dialogue. Impartialist reasoning is a basis for disclosing non-generalizable principles. Principles of deception or coercion cannot meet the test of impartiality. Impartialist reasoning has a decisive critical role. Something more positive can be set out. It can be argued that individual collective social arrangements that generate serious harm—unmet needs—cannot be justified impartially. Together autonomy and impartialist reasoning provide the grounds of cosmopolitan thought. The first gives us the individual as the subject of cosmopolitan concern. It provides us reasons to help establish agreement on reasonable terms. The second abstracts from power relationships to disclose the conditions of just cooperation. Cosmopolitan law refers to a domain of law different in kind from the law of states. Kant interpreted it as the basis for articulating the equality of persons in a universal community. Kant’s right to be heard in dialogue is power. Held understands it more broadly. Cosmopolitan law entrenches the eight principles. If they were entrenched as the basis of cosmopolitan law, the conditions of the cosmopolitan regulation of public life could be set down. We have taken some steps, e.g. the UN declaration, but this is currently weak. The post-45 world order is at stake again, in the rise of the hegemonic project. That project, says Held, is both illegitimate and a failure. Held argues that “realism” is the new fantasy. Realism does not take into account interdependence. Cosmopolitanism is the new realism—the practical way to address the new global problems. Current practice suggests a model for global citizenship. Individuals can be citizens of local, national, and regional associations—e.g., citizen of Scotland, the UK, and the EU. This points towards the state “withering away.” In a world of overlapping communities of fate, individuals would be citizens of local communities and regional and global networks. This would embrace the diverse forms of power and authority that already transcend national borders. Cosmopolitanism is the basis in political philosophy for living in a global age. Held was remarkably clear and lucid—an excellent talk. Blogging from Granada, Part One It’s Monday morning in Granada, Spain. I’m sitting through the tradition opening ceremonies of the World Congress for the Philosophy of Law and Social Philosophy—the biannual meeting of IVR and, for better or worse, the only real worldwide forum for high legal theory and legal philosophy. The first substantive speaker this morning will be Jürgen Habermas—the great German political philosopher and social theorist. I first encountered Habermas’s work as a student in the 70s: I remember devouring several of his early books—thirty years later I still can do a fair job or recapitulating the arguments of Legitimation Crisis & Knowledge and Human Interest—and when I was a law student I wrote a paper for Gunter Frankenberg that developed a theory of the freedom of expression from Habermas’s Theory of Communicative Action. In the 1990s, Habermas became intensely interested in legal theory—writing a largish volume on legal theory. Today, Habermas’s topic is “The Kantian Project of the Constitutionalization of International Law, Does it Still Have a Chance?”. The speeches have come to an end—finally! Jürgen Habermas takes the stage. I’ve seen Habermas speak only a few times, at Harvard University when he visited Rawls’s political philosophy seminar in the early 80s, at a world Congress in Bologna a few years ago, and most recently at the University of San Diego, where Habermas gave a lecture as part of the Kyoto Prize activities. Habermas is a notoriously difficult speaker to understand—he has a mild speech impediment and, although the substance of his English is superb, his delivery is not entirely fluent. Despite this, Habermas has a commanding presence—won through the force of intellect and ideas—and audiences are always transfixed even if they are also perplexed. As always, these are just my notes—which record my impressions and not the actual text of Habermas’s talk. He begins by briefly reviewing the history of the United Nations and then mentions the recent efforts to reform the UN. Then Habermas turns to Kant and introduces Kant’s idea of a ‘cosmopolitan condition’ which Habermas identifies as a step beyond international law, which is concerned only with nation-states. Kant conceived of a choice between “world republic” or “commonwealth of nations.” That is, Kant thought there were only two alternatives for international order—nation states with minimal international law or world government. (Habermas is going to try to show that there is a third way—involving international order that is more substantial than that posited by Westphalian realism but short of world government.) Habermas turns to the modern ideas that allow us to see that Kant’s two choices are not the only ones. We can now see the assumptions that underlay his conception of the choice. First, we now have the idea of federalism or “divided sovereignty.” Second, whereas Kant thought of a constitute as creating a government, we now have an alternative idea—a constitution that is not solely the constitution of a state. A constitution that constrains an existing state, breaking the link between a state and democratic citizenship. Third, Kant may also have based the dualism of “world republic” and “league of nations” on the improbability of a constitutional revolution. We see constitutionalization as a long term process, in which constitutional regulation emerges gradually in stages or degrees. Habermas summarizes the three ideas: (1) federalism, (2) the new idea of a regulatory constitution, and (3) the idea of gradual constitutionalization implemented by governments rather than a popular revolutions. Habermas then turns to a discussion of the means by which a new international constitutional order might emerge, discussing among other topics, the idea of constitutional law made at a supernational level—the EU provides a model of how this can work. States can act as “members of international organizations” and not just as the free agents of the realist theory of international order. The nation-state system recognized only one kind of entity (the “nation state”) with two kinds of policy—foreign and domestic. There are now supernational entities, such as the UN, with power to act in well-defined fields, i.e. securing peace and protecting human rights. New mechanisms for the coordination of nation states and NGOs are also emerging to do with particular issues—trade, the environment, international finance, etc. These arrangements, however, do not provide a framework for “international will formation” or the mechanism for the enforcement of international norms. With the exception of the United States, there are no viable actors to enforce such norms. Historically, Habermas argues that with the process of decolonization, an international community of nation states arose. National states are comparatively young (on a world wide basis), and they are currently the most powerful actors in the international sphere. Nation states form regional alliances and engage in international cooperation, but these are comparatively weak. The EU has achieved the status of “laying claim” of growing into the role of global actor. But the EU will only do this if it achieves political integration that will enable it to claim democratic legitimacy. Habermas then turns to the idea of the legitimation deficit. As international actors do more, they outgrown their sources of democratic legitimacy. Even if the UN does reform itself, this will not create the kind of connection between the UN and the nation state that would confer legitimacy. Ever since the development of international law has followed the logic of human rights, the emergence of international legal order has been more legal than political. The protection of human rights through fair procedures can be legitimate. The neoliberal response to these problems is to see democratic legitimacy as the wrong model. Rather, legitimacy is provided by the excellence of the decision making process. The legitimacy of the international system of markets and states is presumed. This neoliberal approach has not met with democratic consensus. The shift from political mechanisms to market mechanisms would rob future generations of the ability to change these decisions. I’ve only captured a small fraction of Habermas’s lecture (which, as usual, was a bit difficult to follow. Hopefully, we will get a published version! Tuesday, May 24, 2005
Lawson on the Deans Check out Gary Lawson´s guest post, Deans and Judicial Independence, on the Right Coast. Here´s a taste:
Some Prelinary Thoughts on the ¨Nuclear Option¨ Compromise I´m blogging from an Internet Cafe in Granada, Spain, and just got the news about the Senate´s compromise on the Nuclear Option. I have a few preliminary thoughts. First, one effect of the compromise is to increase the power of a few moderate Republicans over the next Supreme Court nomination. Why is this true, given the fact that the number of votes required for confirmation, 51, is the same as the number of votes required to confirm, also 51? My guess is that the political costs of voting against the nuclear option are different from the costs of voting against a nominee. The former vote is fuzzier and plays better with the majority of voters; the latter vote is clear and is suicide with the Republican base. Second, the compromise reflects the discomfort of many Senators with changes in the norms of the Senate. I think two norms were in play. One norm disfavored ¨veto filibusters¨ of judicial nominees: a veto filibuster is a filibuster through the end of the term that kills a nomination. The second norm was that the rules themselves should only be changed in conformity with the rules. Although some versions of the nuclear option were rule compliant, the specific version being advocated would have involved a rule change that would have required the nuclear option in order to pass. That would have been unprecedented. That´s about all I´m capable of with severe jetlag and two classes of very fine spanish wine! Conference Announcement: ECAP
Conference Announcement: Political Studies in Belfarst
Conference Reminder: Society for Applied Philosophy at Oxford
Monday, May 23, 2005
Tamanaha on Legal Instrumentalism Brian Z. Tamanaha (St. John's University - School of Law) has posted The Perils of Pervasive Legal Instrumentalism (Montesquieu Lecture Series, Tilburg University, Vol. 1, 2005) on SSRN. Here is the abstract:
Maroney on a Taxonomy of Law and Emotion Terry A. Maroney (NYU) has posted Law and Emotion: A Proposed Taxonomy of an Emerging Field (Law and Human Behavior, 2006) on SSRN. Here is the abstract:
Balkin on Lochner Jack Balkin has posted Wrong the Day it Was Decided: Lochner and Constitutional Historicism (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
Sunday, May 22, 2005
The Calendar & Conference Blogging I'm on my way to the XXII World Congress of Philosophy of Law and Social Philosophy--link here. The calendar will be very spotty this week--the North American workshop season is mostly over. I will make sure to get up a post on the Oxford Jurisprudence Discussion Group and I will be blogging from the World Congress. There will be a fairly long delay between this post and the next one--sometime on Monday when I arrive in London. If you are regular reader of the Legal Theory Lexicon, there will be a new series of entries--starting with today's entry on Formalism and Instrumentalism (see immediately below) and continuing throughout the Summer. See you in Granda! Legal Theory Lexicon: Formalism and Instrumentalism
In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize gay sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text is not much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state. But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation. In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory. Legal Formalism What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following
We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:
2. Legal rules can be meaningful. 3. Legal rules can be applied to particular facts. 4. Some actions accord with meaningful legal rules; other actions do not. 5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement. Legal Instrumentalism Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking. The Realist Critique of Legal Formalism It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Ideology does the work; legal formalism dresses it up so that it looks pretty. The Modern Revival of Legal Formalism Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be. Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents. Conclusion The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie. Related Entries Saturday, May 21, 2005
Lipshaw on Solum on Siegel Jeff Lipshaw has some interesting responses to my comments on The Polymorphic Principle and the Judicial Role in Statutory Interpretation by Jonathan Siegel (which is the Download of the Week--see below). I've added them to the original post, either click here or scroll down to Thursday, May 19. Paul Ricoeur The great French philosopher, Paul Ricoeur, has died at the age of 92. For a wonderful picture, visit this website. In the late 70s, I studied with Guy Wauthy, a former student of Ricoeur's and came to have an appreciation for this humane and interesting thinker. Here is a news report--I'm sure more will follow. Here's a brief excerpt:
Legal Theory Bookworm The Legal Theory Bookworm recommends Supreme Court Decision-Making: New Institutionalist Approaches edited by Cornell W. Clayton & Howard Gillman. Here is a blurb:
Download of the Week The Download of the Week is The Polymorphic Principle and the Judicial Role in Statutory Interpretation by Jonathan Siegel. Here is the abstract:
Friday, May 20, 2005
Friday Calendar
Lawrence on the Freedom of Autonomy Michael Anthony Lawrence (Michigan State University College of Law) has posted Reviving a Natural Right: The Freedom of Autonomy Amendment on SSRN. Here is the abstract:
Conkle on Indirect Funding & Establishment Daniel O. Conkle (Indiana University School of Law) has posted Indirect Funding and the Establishment Clause: Rehnquist's Triumphant Vision of Neutrality and Private Choice (THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press) on SSRN. Here is the abstract:
Duff on Property & Tax in a Libertarian World David G. Duff (University of Toronto - Faculty of Law) has posted Private Property and Tax Policy in a Libertarian World: A Critical Review (Canadian Journal of Law and Jurisprudence, Vol. 18, pp. 23-45, 2005) on SSRN. Here is the abstract:
Journal Announcement: Special Issue of the Loyola University Chicago Law Journal on Justice
Thursday, May 19, 2005
Thursday Calendar
Oxford Society for Law and Religion: Dr W. Pickering, Persecution and Genocide- Nature and Definitions. Siegel on Statutory Interpretation, Updated Jonathan Siegel (George Washington) has posted The Polymorphic Principle and the Judicial Role in Statutory Interpretation on SSRN. Here is the abstract:
This caveat aside, this is a marvelous piece, and I suggest that you download it while its hot! Update: Jeff Lipshaw offers the following comments:
Leonard on International Human Rights & Sexual Minority Rights Arthur S. Leonard (New York Law School) has posted The Impact of International Human Rights Developments on Sexual Minority Rights (New York Law School Law Review, Vol. 49, No. 2, 2004-2005) on SSRN. Here is the abstract:
Ravitch on Religious Objects Frank S. Ravitch (Michigan State University College of Law) has posted Religious Objects as Legal Subjects (Wake Forest Law Review Vol. 40, 2005) on SSRN. Here is the abstract:
Cossman on Family Feuds Brenda Cossman (University of Toronto - Faculty of Law) has posted Contesting Conservatisms, Family Feuds and the Privatization of Dependency (American Journal of Gender, Social Policy and the Law, 2005) on SSRN. Here is the abstract:
Conference Announcement: Intellectual Property Colloquium
Wednesday, May 18, 2005
Foley on the Filibuster and Democracy Check out Ned Foley's short piece, The Filibuster and Democracy, over at Election Law @ Moritz. Here's a taste:
Hasen on Election Law Reform Check out Rick Hasen's Roll Call piece, Election Reform Isn’t a High Priority Now, But It Should Be. Symposium Announcement: Yale Law Journal Symposium on Executive Power
Tournament of Downloads SSRN has updated its controversial tournament of downloads. Here are the latest rankings of law schools, which I have reorded by total downloads (if you go to the SSRN page, you will see the default view of rankings by recent downloads):
1--University of Chicago - Law School--139210 2--Harvard University - Harvard Law School--111683 3--Stanford Law School--93107 4--Columbia University - Columbia Law School--84872 5--University of California, Los Angeles - School of Law--62956 6--University of Texas at Austin - School of Law--60730 7--University of Southern California - Law School--59035 8--Georgetown University Law Center--57723 9--University of California, Berkeley - School of Law (Boalt Hall)--41073 10-Yale University - Law School--40328 11-George Mason University - School of Law--40220 12-University of Virginia - School of Law--38813 13-George Washington University - Law School--37992 14-New York University - School of Law--35620 15-Vanderbilt University - School of Law--33536 16-University of Pennsylvania - School of Law--32856 17-Boston University - School of Law--27333 18-University of Michigan at Ann Arbor - Law School--25570 19-University of Minnesota - Twin Cities - School of Law--24551 20-University of Illinois College of Law--24468 Contest Announcement: Constitutional Democracy & the Nation-State
Wednesday Calendar
Oxford Faculty of Law Said Business School, & Law and Finance Joint Seminars: Professor Reinier Kraakman, An Overview of Asset Partitioning and the Law of Business Entities. Ontario Society for the Study of Argumentation: Conference on The uses of argument, with J. Anthony Blair University Professor of Philosophy, University of Windsor, Jeanne Fahnestock Professor of English, University of Maryland, College Park & Stephen E. Toulmin University Professor and Adjunct Professor of Anthropology, International Relations, and Religion, University of Southern California (continues through May 21). Eisenberg et al on Juries, Judges, and Punitive Damages Theodore Eisenberg , Michael Heise , Martin T. Wells , Paula Hannaford-Agor , Neil LaFountain , G. Thomas Munsterman and Brian Ostrom (Cornell Law School , Cornell Law School , Cornell University , National Center for State Courts , National Center for State Courts - General , National Center for State Courts (NCSC) and National Center for State Courts) have posted Juries, Judges, and Punitive Damages: Empirical Analyses using the Civil Justice Survey of State Courts 1992, 1996, and 2001 Data on SSRN. Here is the abstract:
Katyanl on Privacy & Piracy Sonia Katyal (Fordham Law School) has posted Privacy vs. Piracy (Yale Journal of Law & Technology Vol. 7, p. 222, 2004) on SSRN. Here is the abstract:
Schaumann on Copyright Class War Niels Schaumann (William Mitchell College of Law) has posted Copyright Class War (UCLA Entertainment Law Review, Vol. 11, pp.247-299, 2004) on SSRN. Here is the abstract:
Tuesday, May 17, 2005
Tuesday Calendar
Oxford Intellectual Property Research Centre,Intellectual Property in the New Millennium: Dr Birgitte Andersen & Dr Sue Konzelmann, “In Search of a Useful Theory of the Productive Potential of Intellectual Property Rights”. Treanor on Judicial Review Before Marbury William Michael Treanor (Fordham University School of Law) has posted Judicial Review before Marbury (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
Garnett on Pierce Richard W. Garnett (University of Notre Dame - Law School) has posted Taking Pierce Seriously: The Family, Religious Education, and Harm to Children (Notre Dame Law Review, Vol. 76, pp. 109-46, 2000) on SSRN. Here is the abstract:
Stewart on Global Adminstrative Law Richard B. Stewart (New York University School of Law) has posted U.S. Administrative Law: A Model for Global Administrative Law on SSRN. Here is the abstract:
Monday, May 16, 2005
Monday Calendar
Netanel on Market Power in the Marketplace of Ideas Neil W. Netanel (University of California, Los Angeles - School of Law) has posted Copyright and 'Market Power' in the Marketplace of Ideas (ANTITRUST, PATENTS AND COPYRIGHT, Howard Shelanski, Francois Leveque, eds., Edward Elgar, 2005) on SSRN. Here is the abstract:
Geistfeld on Constitutional Tort Reform Mark Geistfeld (New York University Law School) has posted Constitutional Tort-Reform (Loyola of Los Angeles Law Review, Vol. 38, No.3) on SSRN. Here is the abstract:
Rose-Ackerman & Tobin on Bilateral Investment Treaties Susan Rose-Ackerman and Jennifer Tobin (Yale Law School and Yale University) have posted Foreign Direct Investment and the Business Environment in Developing Countries: The Impact of Bilateral Investment Treaties. Here is the abstract:
Legal Theory Calendar
Oxford Intellectual Property Research Centre,Intellectual Property in the New Millennium: Dr Birgitte Andersen & Dr Sue Konzelmann, “In Search of a Useful Theory of the Productive Potential of Intellectual Property Rights”.
Oxford Faculty of Law Said Business School, & Law and Finance Joint Seminars: Professor Reinier Kraakman, An Overview of Asset Partitioning and the Law of Business Entities. Ontario Society for the Study of Argumentation: Conference on The uses of argument, with J. Anthony Blair University Professor of Philosophy, University of Windsor, Jeanne Fahnestock Professor of English, University of Maryland, College Park & Stephen E. Toulmin University Professor and Adjunct Professor of Anthropology, International Relations, and Religion, University of Southern California (continues through May 21).
Oxford Society for Law and Religion: Dr W. Pickering, Persecution and Genocide- Nature and Definitions.
Sunday, May 15, 2005
Legal Theory Lexicon: Metaethics
"Metaethics" may sound rather esoteric, but, in fact, metaethical argumentation is very common, both in ordinary life and in legal theory. Perhaps the most familiar example is the use of moral relativism (or similar positions) in normative argumentation. When one party in an argument asserts something like, "Homosexuality is morally wrong," the reply might be, "No, it isn't. You are mistaken," but another common (perhaps more common) reply is, "That's just a value judgment." The implication is that moral judgments are relative or subjective or just an expression of emotional reactions. Metaethics is a very big topic, and even a cursory introduction is the subject of a whole course or monograph, but some very basic ideas and terminology can be introduced in a blog post. As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. Metaethical Questions Metaethics includes a variety of topics, and one good way to get a basic grasp on the field is to simply list some of the questions that are encompassed by (legal)metaethics: Cognitivism and Noncognitivism One of the most important debates in metaethics (from the point of view of normative legal theory) is the debate between cognitivism and noncognitivism. Very roughly, cognitivism is the position that moral statements (such as "There ought to be a constitutional right to privacy.") express beliefs that can be true or false. (Beliefs are "cognitive" states, hence the name "cognitivism.") Noncognitivism denies this and asserts that moral statements express noncognitive states, such as emotions or desires. Noncognitive states (emotions, desires) cannot be true or false. I think the best way to get a handle on this debate is to take a brief look at a very simple version of noncognitivism. A noncognitivist might assert that when some says that X is morally wrong, they are simply expressing an attitude of disapproval towards X. That is, "X is wrong" means "Boo X." When someone says "X is morally good," they are expressing an attitude of moral approval towards X. The Boo-Hooray theory is a crude version of emotivism--the theory that moral statements express emotions, associated with A.J. Ayer. As I'm sure you've already guessed, contemporary noncognitivists have theories that are more sophisticated than Ayer's; examples of such contemporary noncognitivist theories include Allan Gibbard's norm expressivism and Simon Blackburn's quasi realism. Cognitivsts assert that moral propositions express beliefs that have cognitive content and hence can be true or false (or at least correct or incorrect). The cognitivist landscape is complex. Some cognitivist theories hold that our moral beliefs track natural properties in the world; others cognitivist theories hold that our moral beliefs are about nonnatural properties: G.E. Moore had a theory like this. Still other cognitivists believe that moral statements can be true or false, but deny that they are about any states of affairs (natural or nonnatural). A simple example of a naturalist cognitivist theory might be the following: a utilitarian might believe that statements about the rightness or wrongness of actions are about natural states of the world, e.g. the natural properties of pleasure and pain: when I say, action X is right, I mean, X will produce the greatest balance of pleasure over pain as compared the alternative courses of action. In Legal Theory Lexicon 014: Fact and Value, we explored G.E. Moore's "open question" argument against naturalist forms of cognitivism. It goes without saying that debates over cognitivism and noncognitivism are much richer and complex than the simplified ideas that we've just explored, but the core idea--the distinction between cognitivism and noncognitivism--is accessible and hugely important. Moral Psychology Another important set of questions in metaethics concerns the relationship between moral judgments and motivation. Suppose one makes a moral judgment that X is morally obligatory. Does it follow that one is motivated to do X? Or can one believe that X is morally required with no motivation to do X? Lot's of folks find it very plausible to think that if one affirms "X is morally obligatory," then one has got to have a motive to do X. "Internalism" is the view that there is some internal or conceptual connection between moral judgments and motivation. "Externalism" is the view that the connection between moral judgment and motivation is external or contingent. For some forms of noncognitivism, the question whether there is an internal connection between moral judgment and motivation isn't much of a question. If moral statements simply express motivations (to take the easiest case), then it follows that the sentence X is morally obligatory would turn out just to mean, "I am motivated to do X." It will get more complicated for other forms of noncognitivism, but in general and vastly oversimplified terms, if morality is about desire or emotion and if desires or emotions motivate, then moral judgments are closely connected with motivations. But for cognitivists, things are not so easy. Let's take our utilitarian naturalist cognitivist as an example. I know that if I stop working on my blog and start working for Oxfam, I can produce better consequences. If internalism were true, this would give me a motive to stop working on the blog. Assuming that Hume was right and motives are desires plus beliefs, at the very least, I ought to feel some sort of tug (or other motivating state) pulling in the direction of working for Oxfam. But I don't, in fact, feel such a tug. One way to square these facts (assuming they were true) with cognitivism is to deny that there is an internal connection between moral judgments and motivations. Thus, I might think that some external sanction or internalized norm must be added to the moral judgment in order to produce motivating force. Conclusion Normative legal theory necessarily implicates metaethics. Most normative legal theorists explicitly or implicitly assert that their positions are true (or at least correct) and that inconsistent positions are false (or incorrect). That means that most normative legal theories rest on metaethical assumptions. That doesn't mean that you need to be an expert in metaethics to be a good normative legal theorist, but it sure helps to know the very general outlines of the terrain! Bibliography Saturday, May 14, 2005
Goals of Antitrust Over at Law & Society Weblog, check out The Goals of Antitrust and Economic Policy: Consumer Welfare? Efficiency? Perfect Competition?. Here's a taste:
Legal Theory Bookworm The Legal Theory Bookworm recommends Crafting Law on the Supreme Court: The Collegial Game by by Forrest Maltzman, James F. Spriggs II, Paul J. Wahlbeck. Here is a blurb:
Download of the Week The Download of the Week is The New Textualists' New Text (Loyola of Los Angeles Law Review, 2005) by Lawrence M. Solan. Here is the abstract:
Friday, May 13, 2005
Choi & Gulati on Which Judges Write Their Own Opinions Stephen J. Choi and G. Mitu Gulati (New York University - School of Law and Georgetown University Law Center & "Tournament of Judges" fame!) have posted Which Judges Write Their Opinions (And Should We Care)?. Here is the abstract:
Burk on Privacy in the Global Dataspace Dan L. Burk (University of Minnesota Law School) has posted Privacy and Property in the Global Datasphere on SSRN. Here is the abstract:
Katz on Marriage as Partnership Sanford N. Katz (Boston College - Law School) has posted Marriage as Partnership (Notre Dame Law Review, Vol. 73, pp. 1251-1274, 1998) on SSRN. Here is the abstract:
Kohler on Labor Law & Legal Transformation Thomas C. Kohler (Boston College - Law School) has posted The Disintegration of Labor Law: Some Notes for a Comparative Study of Legal Transformation (Notre Dame Law Review, Vol. 73, pp. 1311-1332, 1998) on SSRN. Here is the abstract:
Herman on the Submajoritarian Fourth Amendment Susan M. Herman (Brooklyn Law School) has posted The USA Patriot Act and the Submajoritarian Fourth Amendment (Harvard Civil Rights-Civil Liberties Law Review, Forthcoming) on SSRN. Here is the abstract:
Dallas on Corporate Ethics in Health Care Lynne Dallas (University of San Diego School of Law) has posted Corporate Ehtics in the Health Care Marketplace (Seattle Journal for Social Justice, Vol. 3, No. 1) on SSRN. Here is the abstract:
Thursday, May 12, 2005
Thursday Calendar
Richman on Violent Crime Federalism Daniel C. Richman (Fordham University School of Law) has posted The Future of Violent Crime Federalism on SSRN. Here is the abstract:
Williams on Reparations Verna L. Williams (University of Cincinnati - College of Law) has posted Reading, Writing, and Reparations: Systemic Reform of Public Schools As a Matter of Justice on SSRN. Here is the abstract:
Kanstroom on Hard Laws & Bad Cases Daniel Kanstroom (Boston College - Law School) has posted Deportation, Social Control, and Punishment: Some Thoughts about Why Hard Laws Make Bad Cases (Harvard Law Review, Vol. 113, pp. 1890-1935, 2000) on SSRN. Here is the abstract:
Dau-Schmidt on the Future of Employment Law Kenneth Glenn Dau-Schmidt (Indiana University-Bloomington, School of Law) has posted Meeting the Demands of Workers into the Twenty-First Century: The Future of Labor and Employment Law (Indiana Law Journal, Vol. 68, No. 685, 1993) on SSRN. Here is the abstract:
Duff on the Abolition of Wealth Transfer Taxes David G. Duff (University of Toronto - Faculty of Law) has posted The Abolition of Wealth Transfer Taxes on SSRN. Here is the abstract:
Wednesday, May 11, 2005
Helfer on IP Rights in Plant Varieties Laurence R. Helfer (Vanderbilt University - School of Law) has posted Intellectual Property Rights in Plant Varieties: International Legal Regimes and Policy Options for National Governments (Food and Agriculture Org. of the United Nations, FAO Legislative Study, No. 85, 2004) on SSRN. Here is the abstract:
Wednesday Calendar
Oxford, The 2005 John Locke Lectures: Professor E. Sosa (Brown University and Rutgers University). 'Apt Belief and Reflective Knowledge.' Sadat on Amnesty Leila N. Sadat (Washington University, St. Louis - School of Law) has posted Exile, Amnesty and International Law on SSRN. Here is the abstract:
Rubin on Tort Reform Paul H. Rubin (Emory University School of Law) has posted Fundamental Reform of Tort Law (Regulation, No. 4, pp. 26-33, 1995) on SSRN. Here is the abstract:
Tuesday, May 10, 2005
Appleman on Batson Laura Appleman has posted Reports of Batson's Death Have Been Greatly Exaggerated: How the Batson Doctrine Enforces a Normative Framework of Legal Ethics on SSRN. Here is the abstract:
Tuesday Calendar
Oxford, The 2005 Uehiro Lectures: Professor Tony Coady (Melbourne), 'Messy Morality: Moralism, Realism and Political Violence.' Oxford, The H.L.A. Hart Memorial Lecture: Owen Fiss, The War on Terrorism and the Rule of Law. Oxford, The Okham Society: Carsten Nielsen (University of Århus). 'Moral Absolutism Defended.' Oxford, The Okham Society: Ian Phillips (Magdalen College). 'Intentionalism and Experience.' University of Chicago, Law & Economics: Andrei Shleifer, Whipple V. N. Jones Professor of Economics, Harvard University, The Evolution of Precedent. University of Texas School of Law: Sam Buell, Visiting Professor, UT Law, "White Collar Mistakes". Oxford, The Okham Society: Arto Laitinen (University of Jyväskylä). 'Moral Particularism and the Intelligibility Requirement.' Garnett on Rehnquist on Free Speech Richard W. Garnett (University of Notre Dame - Law School) has posted Free Speech, Public Property, and Government Money (THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press, Forthcoming) on SSRN. Here is the abstract:
Cox on Partisan Fairness Adam B. Cox (University of Chicago Law School) has posted Partisan Fairness and Redistricting Politics (New York University Law Review, Vol. 70, No. 3, June 2004) on SSRN. Here is the abstract:
Weatherall & Jensen on Patent Enforcement Kimberlee Gai Weatherall and Paul H. Jensen (University of Melbourne - Faculty of Law and Melbourne Institute of Applied Economic and Social Research, University of Melbourne) have posted An Empirical Investigation into Patent Enforcement in Australian Courts (Federal Law Review, Vol. 32, No. 2) on SSRN. Here is the abstract:
Conference Announcement: Toward a History of Women's Political Thought
Monday, May 09, 2005
Monday Calendar
Oxford Moral Philosophy Seminar: Marc Fleurbaey, Pau, Approaches to Responsibility-Sensitive Egalitarianism. Conference Announcement: Concepts, Theories, and Moral Practices
Choper & Yoo on the 11th Amendment Jesse H. Choper and John C. Yoo (University of California, Berkeley - School of Law (Boalt Hall) and University of California at Berkeley School of Law) have posted Who's So Afraid of the Eleventh Amendment (Columbia Law Review, Vol. 105, 2005) on SSRN. Here is thea abstract:
Ruhl on Regulation by Adaptive Management J.B. Ruhl (Florida State University College of Law) has posted Regulation by Adaptive Management - Is it Possible? (Minnesota Journal of Law, Science & Technology, Vol. 7) on SSRN. Here is the abstract:
Richman & Boerner on a Transaction Cost Approach to Regulation Barak D. Richman and Christopher Boerner (Duke University School of Law and Genentech, Inc.) have posted A Transaction Cost Economizing Approach to Regulation: Understanding the NIMBY Problem and Improving Regulatory Responses (Yale Journal on Regulation, Vol. 22, No. 1, Winter 2005) on SSRN. Here is the abstract:
Solan on the New Texualism Lawrence M. Solan (Brooklyn Law School) has posted The New Textualists' New Text (Loyola of Los Angeles Law Review, 2005) on SSRN. Here is the abstract:
Sunday, May 08, 2005
Legal Theory Calendar
Oxford Moral Philosophy Seminar: Marc Fleurbaey, Pau, Approaches to Responsibility-Sensitive Egalitarianism.
Oxford, The 2005 Uehiro Lectures: Professor Tony Coady (Melbourne), 'Messy Morality: Moralism, Realism and Political Violence.' Oxford, The H.L.A. Hart Memorial Lecture: Owen Fiss, The War on Terrorism and the Rule of Law. Oxford, The Okham Society: Carsten Nielsen (University of Århus). 'Moral Absolutism Defended.' Oxford, The Okham Society: Ian Phillips (Magdalen College). 'Intentionalism and Experience.' University of Chicago, Law & Economics: Andrei Shleifer, Whipple V. N. Jones Professor of Economics, Harvard University, The Evolution of Precedent. University of Texas School of Law: Sam Buell, Visiting Professor, UT Law, "White Collar Mistakes". Oxford, The Okham Society: Arto Laitinen (University of Jyväskylä). 'Moral Particularism and the Intelligibility Requirement.'
Oxford, The 2005 John Locke Lectures: Professor E. Sosa (Brown University and Rutgers University). 'Apt Belief and Reflective Knowledge.'
Legal Theory Lexicon: Functional Explanation in Legal Theory
Why do legal rules have the form and content that they do, in fact, have? One answer to this question is based on the idea that the function of a rule can be part of a causal explanation of the content of the rule. Why does corporations law limit the liability of stockholders? One kind of answer to that question might begin: "That rule is the way it is, because it serves the interest of the capitalist class." Or, "The rule is that way, because that is the efficient rule, and common law adjudication selects for efficient rules." In other words, the content of the rule is explained (causally) by the function the rule serves. The Idea of a Functionalist Explanation Functionalist explanations are familiar to almost everyone, because of the important role they play in evolutionary biology. When we try to explain why an organism has a particular trait--why male peacock's have their feathers or why the elephants have trunks--we appeal to the function that the trait serves. Male peacock's have colorful feathers because that trait serves to attract female peacock's and hence the genes produce this trait are favored by evolution. Elephants have trunks, because they enable elephants to eat and drink more efficiently. In biology, functionalist explanations are scientifically valid, because we understand the causal mechanism whereby function plays a causal role. That causal mechanism is evolution, of course, and we have a very good explanation for how evolution works in the form of genetics. DNA (plus a lot of other stuff) provides the precise causal mechanism by which evolution operates. Functionalist Explanation in the Social Sciences Functionalist explanations are not limited to biology. Sociologists frequently explain social behavior on the basis of the social function that the behavior serves. Why does this group do a "rain dance"? Because the rain dance ritual serves to create social cohesion in times of stress. There is, however, a significance difference between functionalist explanation in biology and functionalist explanation in the social sciences. In biology, functionalist explanations are underwritten by a well-confirmed theory of the causal mechanism by which evolution functions. In social science, the causal mechanisms are murkier. What causal law explains how the social cohesion function of rain dances leads to their perpetuation across generations? Without an answer to questions like this, we have at least prima facie reason to be suspicious of functionalist explanations in the social sciences. This suspicion is enhanced because functionalist explanations can easily become nonfalsifiabile. In the case of biology, because evolutionary theory is well confirmed, we more or less know in advance that some functionalist explanation has got to be right--the question is which functionalist explanation is correct. In the case of social science, there is no well-confirmed general theory of social evolution, so it isn't necessarily the case that there is always a true functionalist explanation for any given social behavior. Functionalist Explanations in Legal Theory And that brings us to law. Functionalist explanations are frequently invoked in positive legal theory. That is, when we ask the question, "Why does the law have such and such content?", the answer frequently is, "Because such and such a rule functions in thus and so way." Here are some examples:
Legal Evolution Functionalist explanations are also implicit in any claim that the law evolves (where "evolves" is meant in a technical sense and is not a mere synonym for "changes"). The idea that legal systems evolve is very common, but there is not general theory of legal evolution that has the well-confirmed status of the corresponding theory of biological evolution. Be on the watch for claims about legal evolution; such claims frequently are not well thought out and almost always lack empirical support. Efficiency Another example of functionalist explanation in legal theory is the claim that the common law rules are efficient. "Why did the common law adopt the Learned Hand formula as the standard for negligence?" "Because that is the efficient standard." Sometimes these claims are accompanied by an account of the mechanism by which a common law system moves towards efficient legal rules. For example, it might be argued that inefficient legal rules will be subject to continuous litigation pressure; whereas efficient legal rules, once adopted, tend to facilitate settlement of disputes. For a very lucid explanation of the role of microfoundations in social science, I highly recommend Jon Elster's brilliant book Making Sense of Marx. And for an equally brilliant defense of functionalist explanations, consult G.A. Cohen's Karl Marx's Theory of History. (The debate between Cohen and Elster is one of the most interesting and important debates in contemporary philosophy of the social science.) Conclusion Let me conclude with a very short diatribe. Legal theorists need a basic understanding of positive legal theory. (I hope this is obvious to everyone!) That means that legal academics should, at a minimum, have a working familiarity with the general concepts of the methodology and theory of the social sciences, including basic ideas about the role of functionalist explanations. But almost no law schools (even the elite ones that train most academics) offer courses in the methodology of positive legal theory! That's bad. Real bad. Saturday, May 07, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Political Liberalism by John Rawls. Rawls was the greatest political philosopher of the twentieth century, and this book summarizes his mature thought--providing systematic statements of many important ideas, includ "overlapping consensus," "the fact of pluralism," "political constructivism," and "public reason." It belongs in the library of every serious legal theorist. If you don't already own a copy, buy the most recent paperback edition. (This book comes in three different versions--with slightly different content in each one.). Here is a blurb:
Download of the Week The Download of the Week is The Disintegration of Duty by Ernest J. WeinribHere is the abstract:
Friday, May 06, 2005
Sunstein & Barnett on the Constitution in Exile--the Debate Concludes I'm sure that many readers of LTB have been following the debate between Cass Sunstein and Randy Barnett on "The Constitution in Exile". The last two installments appear today. Sunstein returned to his opening theme:
Perry on Human Rights & the Death Penalty Michael J. Perry (Emory University School of Law) has posted Capital Punishment and the Morality of Human Rights (Journal of Catholic Legal Studies, 2005) on SSRN. Here is the abstract:
Friday Calendar
French on Common Interest Communities Susan Fletcher French (University of California, Los Angeles - School of Law) has posted Making Common Interest Communities Work: The Next Step (Urban Lawyer, Vol. 37, Summer 2005) on SSRN. Here is the abstract:
Wilkins on Sander David B. Wilkins (Harvard University - Harvard Law School) has posted A Systematic Response to Systemic Disadvantage: A Response to Sander (Stanford Law Review, June 2005) on SSRN. Here is the abstract:
Stone on Human Capital Katherine Van Wezel Stone (University of California, Los Angeles - School of Law) has posted Thinking and Doing - The Regulation Of Workers' Human Capital in the United States (Socio-Economic Review, Vol. 3, September 2005) on SSRN. Here is the abstract:
Thursday, May 05, 2005
Spiegel on Procedural Neutraility Mark Spiegel (Boston College - Law School) has posted The Rule 11 Studies and Civil Rights Cases: An Inquiry into the Neutrality of Procedural Rules. Here is the abstract:
Garnett on Religious Freedom Richard W. Garnett (University of Notre Dame - Law School) has posted Changing Minds: Proselytism, Religious Freedom, and the First Amendment (University of St. Thomas Law Journal, 2005). Here is the abstract:
Book Announcement: The Qualities of a Citizen
Book Announcement: Insincere Promises by Ayres & Klass
Closing the Entry Level Hiring Report Data Collection Phase New reports have essentially stopped, so I am going to stick to my plan & close this out next week. If you can report on entry-level hires or verify that a school has not made any such hires, please email me at lsolum@gmail.com. The current version of the report can be found here. Colker & Scott's Empirical Ananalysis of Rehnquist & Federalism Ruth Colker and Kevin M. Scott (Ohio State University College of Law and Ohio State University - Department of Political Science) have posted Rehnquist and Federalism: An Empirical Perspective (THE REHNQUIST LEGACY, Craig Bradley ed., Cambridge University Press, 2006) on SSRN. Here is the abstract:
Weinrib on Duty Ernest J. Weinrib (University of Toronto - Faculty of Law) has posted The Disintegration of Duty (EXPLORING TORT LAW, Stuart Madded, ed., Cambridge University Press, 2005) on SSRN. Here is the abstract:
Charnovitz on the Accountability of NGOs Steve Charnovitz (The George Washington University Law School) has posted Accountability of Nongovernmental Organizations (NGOs) in Global Governance on SSRN. Here is the abstract:
Welcome to the Blogosphere . . . . . . to:
Elder Law Prof Blog - Anne Kimberley Dayton (William Mitchell) Law Librarian Blog - Joe Hodnicki (Cincinnati) Law School Academic Support Blog - Dennis Tonsing (Roger Williams) & Ellen Swain (Vermont) Wills, Trusts & Estates Prof Blog - Gerry Beyer (St. Mary's) McClain on New Democrat Family Policy Linda C. McClain (Hofstra University - School of Law) has posted Clintonism and the Legacy of 'New Democrat' Family Policy on SSRN. Here is the abstract:
Call for Papers: The Jurisprudential Legacy of Pope John Paul II
Wednesday, May 04, 2005
Posner & Vermeule on the Legality of Coercive Interrogation with a Few Comments and Updates Eric A. Posner and Adrian Vermeule (University of Chicago Law School and University of Chicago Law School) have posted Should Coercive Interrogation Be Legal? on SSRN. Here is the abstract:
New on Law & Politics Review
THE LIMITS OF INTERNATIONAL LAW, by Jack L. Goldsmith and Eric A. Posner. New York: Oxford University Press, 2005. 272pp. Cloth. $29.95 / £18.50. ISBN: 0-19-516839-9. Reviewed by Sanford R. Silverburg. DEFINING CIVIL AND POLICIAL RIGHTS: THE JURISPRUDENCE OF THE UNITED NATIONS HUMAN RIGHTS COMMITTEE, by Alex Conte, Scott Davidson and Richard Burchill. Burlington, VT and Aldershot, Haunts: Ashgate Publishing Limited, 2004. 280pp. Hardcover. $114.95 / £60.00. ISBN: 0-7546-2279-7. Reviewed by Susan C. Breau. INTELLECTUAL PROPERTY RIGHTS IN EU LAW: FREE MOVEMENT AND COMPETITION LAW (Vol. 1), by David T Keeling. Oxford: Oxford University Press, Oxford European Community Law Library, 2004. 456pp. Hardback. $135.00 / £75.00. ISBN: 0198259182. Reviewed by Mark Perry. FROM UI TO EI: WAGING WAR ON THE WELFARE STATE, by Georges Campeau (translated by Richard Howard). Vancouver: University of British Columbia Press, 2004. 256pp. Cloth. CDN$103.93 / US$85.00 / £56.50. ISBN: 0-7748-1122-6. Reviewed by Jerold Waltman. DEFENDING THE RIGHT TO A HOME: THE POWER OF ANTI-POVERTY LAWYERS, by Beth Harris. Burlington, VT: Ashgate 2004. 246pp. Hardcover. $99.95 / £50.00. ISBN 0-7546-2390-4. Reviewed by Mark Kessler. JUDGES IN CONTEMPORARY DEMOCRACY: AN INTERNATIONAL CONVERSATION, by Robert Badinter and Stephen Breyer (eds). New York: New York University Press, 2004. 352pp. Cloth $55.00. ISBN: 0-8147-9926-4. Reviewed by Sally J. Kenney. Hayden on a Voting Rights Exit Strategy Grant M. Hayden (Hofstra University - School of Law) has posted The Supreme Court and Voting Rights: A More Complete Exit Strategy (North Carolina Law Review, Vol. 83, p. 949, 2005) on SSRN. Here is the abstract:
Natapoff on Silencing Criminal Defendants Alexandra Natapoff (Loyola Law School (Los Angeles)) has posted Speechless: The Silencing of Criminal Defendants (New York University Law Review, Vol. 80, 2005) on SSRN. Here is the abstract:
Nockleby & Curreri on Tort Retrenchment John T. Nockleby and shannon curreri (Loyola Law School (Los Angeles) and Loyola Law School (Los Angeles)) have posted 100 Years of Conflict: The Past and Future of Tort Retrenchment (Loyola of Los Angeles Law Review, Vol. 38, 2005) on SSRN. Here is the abstract:
McClain on Multicultural Coming of Age Stories Linda C. McClain (Hofstra University - School of Law) has posted Bend It Like Beckham and Real Women Have Curves: Constructing Identity in Multicultural Coming-of-Age Stories (DePaul Law Review, Vol. 54, p. 701, April 2005) on SSRN. Here is the abstract:
Schaumann on P2P Direct Infringement Niels Schaumann (William Mitchell College of Law) has posted Direct Infringement on Peer-to-Peer Networks on SSRN. Here is the abstract:
Conference Announcement: Causality, Probability, and Rationality at Bologna
Tuesday, May 03, 2005
Yin on Ending the War on Terrorism Tung Yin (University of Iowa, College of Law) has posted Ending the War on Terrorism One Terrorist at a Time: A Non-Criminal Detention Model for Holding and Releasing Guantanamo Bay Detainees (Harvard Journal of Law and Public Policy, Vol. 29, No. 1, 2005). Here is the abstract:
Brinig on Parental Autonomy & Child Custody Margaret F. Brinig (University of Iowa, College of Law) has posted Does Parental Autonomy Require Equal Custody at Divorce? (Louisiana Law Review, Vol. 65, 2005) on SSRN. Here is the abstract:
Cheng on Structural Laws Edward K. Cheng (Brooklyn Law School) has posted Structural Laws and the Puzzle of Regulating Behavior (Northwestern University Law Review, Vol. 100, 2005) on SSRN. Here is the abstract:
Conference Announcement: Clarity and Obscurity in Legal Language
Journal Announcement: Latest Issue of Ethics
Call for Papers: Comparative Perspectives on Rights Enforcement
Monday, May 02, 2005
Debate Club: Sunstein versus Barnett on the Constitution in Exile I am really looking forward to Legal Affairs's "Debate Club" this week, featuring two of the real heavyweights of constitutional theory--Cass Sunstein and Randy Barnett--who debate "The Constitution in Exile." The opening posts are up & here is a small taste:
Monday Calendar
Denno on Fletcher Deborah W. Denno (Fordham University School of Law) has posted When Two Become One: Views on Fletcher's 'Two Patterns of Criminality' (Tulsa Law Review, Vol. 39, p. 781, 2003-2004) on SSRN. Here is the abstract:
Burke on Cognitive Science & Prosecutorial Decision Making Alafair S. Burke (Hofstra University - School of Law) has posted Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science (William & Mary Law Review, Vol. 47, Forthcoming) on SSRN. Here is the abstract:
Penalver on Property as Entrance Eduardo M. Penalver (Fordham University - School of Law) has posted Property as Entrance (Virginia Law Review, Vol. 91, 2005) on SSRN. Here is the abstract:
Langer on the Americanization Thesis Maximo Langer (University of California, Los Angeles - School of Law) has posted From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure (Harvard International Law Journal, Vol. 45, No. 1, 2004) on SSRN. Here is the abstract:
Murphy on Preemptive Self-Defense Sean D. Murphy (The George Washington University Law School) has posted The Doctrine of Preemptive Self-Defense (Villanova Law Review, Forthcoming) on SSRN. Here is the abstract:
Solimine on the Future of Parity Michael E. Solimine (University of Cincinnati, College of Law) has posted The Future of Parity (William & Mary Law Review, Vol. 46, p. 1457, 2005) on SSRN. Here is the abstract:
Conference Announcement: Law's Empire
Sunday, May 01, 2005
Legal Theory Calendar
Oxford Intellectual Property Research Centre: Intellectual Property in the New Millennium: Jane C Ginsburg, The Author’s Name as a Trademark: A Perverse Perspective on the Moral Right of ‘Paternity’ University of Texas Constitutional Studies Luncheon: David Faigman, University of California, Hastings School of Law, "Fact-Finding in Constitutional Cases"
Legal Theory Lexicon: Primary and Secondary Rules
Once you've seen this distinction, you might then become interested in what legal theorists have to say about it. One of the most important views of this distinction was advanced by the great legal philosopher H.L.A. Hart, who classified the rules of tort and criminal law as "primary rules," and the rules of contract law as "secondary rules." This post is an introduction to the Hart's distinction between primary and secondary rules. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. The Distinction Between Primary and Secondary Rules Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules. More precisely, primary rules are rules that govern conduct, and secondary rules are rules that do not. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation. Some more examples may help:
Conclusion The distinction between primary rules of conduct and other, secondary rules is a crucial member of the legal theorist's toolbox. My own experience has been that I use this distinction to understand legal problems and arguments, but that it rarely plays a direct role in my own work. Primary and secondary rules are everywhere, and you need to understand the differenced between them, but you don't necessarily need to use the distinction when you construct normative legal arguments. One more thing. The place to go for a really thorough understanding of the distinction between primary and secondary rules is H.L.A. Hart's magnificent book, The Concept of Law--in my opinion, the most important work of legal theory in the twentieth century. |