Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Friday, September 30, 2005
Friday Calendar
Vanderbilt Law: Andrew Martin, Washington University in St. Louis Political Science, "The Median Justice on the U.S. Supreme Court, and Some Thoughts on the Roberts Court" Villanova Law: Teemu Ruskola, American University, Washington College of Law, "Canton Is Not Boston: The Invention of American Imperial Sovereignty in the Nineteenth Century" Yale Law, Economics, and Organizations: Professor Lawrence Katz, Harvard, Economics with Professor Jeffrey Kling, Princeton, Economics, Experimental Analysis of Neighborhood Effects. Call for Proposals: MPSA 2006
Call for Participation: Law & Society 2006
Conference Announcement: The Future of the Supreme Court
More on the Roberts Vote Check out Royce Carroll, Jeff Lewis, Keith Poole, and Howard Rosenthal's Predicting The Senate Vote on John Roberts, detailing their predictions of the Roberts vote (69-31) and discussing the variance with the actual 78-22 vote. Thursday, September 29, 2005
78-22
John Roberts Was Approved by the Senate, 78-22 Here is a report from the L.A. Times:
Why Did 22 Democrats Vote for Roberts There are many possible reasons, including: Thursday Calendar
Boston University Law: Jay Wexler, "Intelligent Design and the First Amendment: A Response" Brookyln Law School: Allison Danner, Vanderbilt, When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War. Fordham University Law: Chris William Sanchirico, Professor of Law, Business & Public Policy, University of Pennsylvania Law School (Visiting Professor, New York University School of Law, Fall 2005), "Detection Avoidance". George Mason University Law: Maxwell Stearns , GMUSL and University of Maryland Visitor, Crops, Guns & Commerce: A Game Theoretical Critique of Gonzales v. Raich. University College London, Law: Professor Robert Reiner (LSE), ‘Law and Order: A 20:20 Vision’ University of Michigan, Law & Economics: Steve Shavell, Harvard, Specific Performance versus Damages for Breach of Contract: An Economic Analysis. University of Minnesota, Public Law Workshop: John Harrison, University of Virginia Law School, State Sovereign Immunity and Congress' Enforcement Powers University of Texas Law: Avery Katz, Columbia University Law School, "Is Electronic Contracting Different? Contract Law in the Information Age" Vanderbilt Law: Cary Coglianese, Harvard University - JFK School of Government, "The Impact of Judicial Review on Regulatory Policy: Reexamining NHTSA's Rulemaking Retreat" Yale Law, Economics, and Organizations: Professor Steve Raphael, University of California at Berkeley, Public Policy, The Effect of Male Incarceration Dynamics on AIDS Infection Rates Among Women & Men, co-authored with Rucker Johnson. Barros on Home as a Legal Concept Benjamin Barros (Widener Law School) has posted Home as a Legal Concept on SSRN. Here is the abstract:
Call for Papers: Ethics and Demandingness
Blank on Fiction in Corporate Reogranization Josh Blank has posted Confronting Continuity: A Tradition of Fiction in Corporate Reorganizations (forthcoming Columbia Business Law Review) on SSRN. Here is the abstract:
Judicial Activism at Law & Society Weblog Check out Prolegomena to a Systems-Theoretical Theory of Judicial-Activism Claims over at Law & Society Weblog. Here's a taste:
Wednesday, September 28, 2005
Wednesday Calendar
NYU Legal History: Chaim Saiman, Golieb Fellow, “Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law” Ohio State Law: Sarah R. Cole, Mediation Confidentiality: A Promise Unfulfilled? University of Alabama Law: Sheila Foster, Fordham University, The City as an Ecological Space. Durchslag on the Supreme Court & the Federalist Papers Melvyn R. Durchslag (Case Western Reserve University - School of Law) has posted The Supreme Court and the Federalist Papers: Is There Less Here than Meets the Eye? (William and mary Bill of Rights Journal, Vol. 14, No. 1, Forthcoming) on SSRN. Here is the abstract:
Bainbridge Replies to Bebchuck on Shareholder Power Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted Director Primacy and Shareholder Disempowerment (Harvard Law Review, Vol. 199, 2006) on SSRN. Here is the abstract:
Clark on Sarbox Robert Charles Clark (Harvard University - Harvard Law School) has posted Corporate Governance Changes in the Wake of the Sarbanes-Oxley Act: A Morality Tale for Policymakers Too on SSRN. Here is the abstract:
Fairfield on Virtual Property Joshua Fairfield (Indiana University School of Law-Bloomington) has posted Virtual Property (Boston University Law Review, Vol. 85, 2005) on SSRN. Here is the abstract:
Rachlinski on Bottom-Up Lawmaking Jeffrey J. Rachlinski (Cornell Law School) has posted Bottom-Up Versus Top-Down Lawmaking (University of Chicago Law Review, Vol. 73, Summer 2006) on SSRN. Here is the abstract:
Tuesday, September 27, 2005
Winkler on Agency Costs & Campaign Finance Adam Winkler (University of California, Los Angeles - School of Law) has posted Other People's Money: Corporations, Agency Costs, and Campaign Finance Law (Georgetown Law Journal, Vol. 92, pp. 871-940, 2004) on SSRN. Here is the abstract:
Parry on Terrorism and the New Criminal Process John T. Parry (University of Pittsburgh School of Law) has posted Terrorism and the New Criminal Process on SSRN. Here is the abstract:
Avraham & Kohler on Accident Law for Egalitarians Ronen Avraham and issa kohler-hausmann (Northwestern University - School of Law and Northwestern University - School of Law) have posted Accident Law for Egalitarians on SSRN. Here is the abstract:
Call for Papers: Law & Humanities Junior Scholar Workshop
Tuesday Calendar
NYU Law, Econ & Politics Colloquium: David Law (University of San Diego), The Paradox of Omnipotence: Courts, Constitutions, and Commitments. Georgetown International Human Rights Colloquium: Jack L. Goldsmith III, Harvard Law School, "Sosa, Customary International Law, and Federal Common Law" Vanderbilt Law: Alfred Brophy, University of Alabama School of Law, "Reading the Great Constitutional Dream Book: African American Ideas About Equality in the Progressive Era" Call for Papers: Law & Economics in Greece
Monday, September 26, 2005
Whose Next? Lee Epstein and Jeffrey Segal have posted a list of the potential nominees for the O'Connor slot on Oxford University Press Blog. Here is a taste:
Call for Papers: Ethical Aspects of Risk
McGinnis on Foreign Law and Constitutional Interpretation John O. McGinnis (Northwestern) has posted Foreign to our Constitution (Northwestern University Law Review, 100th Anniversary Symposium) on SSRN. Here is the abstract:
Schultz on Copynorms & Jambands Mark Schultz (Southern Illinois) has posted Fear and Norms and Rock & Roll: What Jambands Can Teach Us about Persuading People to Obey Copyright Law on SSRN. Here is the abstract:
Monday Calendar
Florida State Law: Michael Vandenbergh, Vanderbilt University Law School, Private Life of Public Law. George Washington Intellectual Property Series: Xuan-Thao Nguyen, Southern Methodist University Dedman School of Law, “Collateralizing Intellectual Property”. Georgetown Environmental Workshop Series: Richard Revesz, New York University School of Law, "The Law and Economics of New Source Review" Hofstra University Law: Robin Charlow, Hofstra University School of Law “The Elusive Meaning of Religious Equality”. NYU Law: Rob Sitkoff. Vanderbilt Law: Andrea Melis, University of Cagliari, Italy, Department of Economics, "Corporate Governance Failures: To What Extent is Parmalat a Particularly Italian Case?" Moral Instincts? Rebecca Saxe has a piece in the Boston Review, entitled Do the Right Thing: Cognitive science’s search for a common morality. Here's a taste:
Sunday, September 25, 2005
Legal Theory Calendar
Florida State Law: Michael Vandenbergh, Vanderbilt University Law School, Private Life of Public Law. George Washington Intellectual Property Series: Xuan-Thao Nguyen, Southern Methodist University Dedman School of Law, “Collateralizing Intellectual Property”. Georgetown Environmental Workshop Series: Richard Revesz, New York University School of Law, "The Law and Economics of New Source Review" Hofstra University Law: Robin Charlow, Hofstra University School of Law “The Elusive Meaning of Religious Equality”. NYU Law: Rob Sitkoff. Vanderbilt Law: Andrea Melis, University of Cagliari, Italy, Department of Economics, "Corporate Governance Failures: To What Extent is Parmalat a Particularly Italian Case?"
Georgetown International Human Rights Colloquium: Jack L. Goldsmith III, Harvard Law School, "Sosa, Customary International Law, and Federal Common Law" Vanderbilt Law: Alfred Brophy, University of Alabama School of Law, "Reading the Great Constitutional Dream Book: African American Ideas About Equality in the Progressive Era"
NYU Legal History: Chaim Saiman, Golieb Fellow, “Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law” Ohio State Law: Sarah R. Cole, Mediation Confidentiality: A Promise Unfulfilled? University of Alabama Law: Sheila Foster, Fordham University, The City as an Ecological Space.
Boston University Law: Jay Wexler, "Intelligent Design and the First Amendment: A Response" Brookyln Law School: Allison Danner, Vanderbilt, When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War. Fordham University Law: Chris William Sanchirico, Professor of Law, Business & Public Policy, University of Pennsylvania Law School (Visiting Professor, New York University School of Law, Fall 2005), "Detection Avoidance". George Mason University Law: Maxwell Stearns , GMUSL and University of Maryland Visitor, Crops, Guns & Commerce: A Game Theoretical Critique of Gonzales v. Raich. University College London, Law: Professor Robert Reiner (LSE), ‘Law and Order: A 20:20 Vision’ University of Michigan, Law & Economics: Steve Shavell, Harvard, Specific Performance versus Damages for Breach of Contract: An Economic Analysis. University of Minnesota, Public Law Workshop: John Harrison, University of Virginia Law School, State Sovereign Immunity and Congress' Enforcement Powers University of Texas Law: Avery Katz, Columbia University Law School, "Is Electronic Contracting Different? Contract Law in the Information Age" Vanderbilt Law: Cary Coglianese, Harvard University - JFK School of Government, "The Impact of Judicial Review on Regulatory Policy: Reexamining NHTSA's Rulemaking Retreat" Yale Law, Economics, and Organizations: Professor Steve Raphael, University of California at Berkeley, Public Policy, The Effect of Male Incarceration Dynamics on AIDS Infection Rates Among Women & Men, co-authored with Rucker Johnson.
Vanderbilt Law: Andrew Martin, Washington University in St. Louis Political Science, "The Median Justice on the U.S. Supreme Court, and Some Thoughts on the Roberts Court" Villanova Law: Teemu Ruskola, American University, Washington College of Law, "Canton Is Not Boston: The Invention of American Imperial Sovereignty in the Nineteenth Century" Yale Law, Economics, and Organizations: Professor Lawrence Katz, Harvard, Economics with Professor Jeffrey Kling, Princeton, Economics, Experimental Analysis of Neighborhood Effects. Legal Theory Lexicon: Holdings
Introduction It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of the concept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So here we go! Holding, Dicta, and Stare Decisis It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents! Given that court decisions set precedents, the question naturally arises: what is the precedential effect of a decision? The traditional answer to that question is that subsequent courts are bound to follow the holding of a decision, but they are not bound by mere dicta--statements that are "unnecessary to the decision." This is as good a place as any to mention that "dictum" is the singular (one unecessary statement) whereas the word "dicta" is the plural of dictum, meaning two or more such statements. Just a bit more about stare decisis So to understand the idea of a holding, you also must have a basic knowledge of the doctrine of stare decisis, which is just the fancy Latin phrase for "precedent." Here are some very basic points: Two Theories of Holdings In fact, there are two theories of what constitutes the holding of a case. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are: Conclusion The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least two holdings when you read a case. First, look for the true ratio decidendi, the narrowest reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court. And then you might compare the two holdings that emerge from these two inquries. Which is broader? Which is narrower? If you read subsequent cases that discuss this case, then you can ask a further question, "Which holding was recognized by subsequent courts as the the holding of the case?" If you are frequently reader of Legal Theory Blog, you will know that I am a proponent of the formalist view of stare decisis. If you would like to read more about why I think, this surf to my three part series: The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument, Part II: Stare Decisis and the Ratchet, and Part III: Precedent and Principle. For past and future installments in the Legal Theory Lexicon series, you can surf here. Saturday, September 24, 2005
Legal Philosophy, Sociology, and Social Philosophy Check out the continuing debate between Nico Artzi and Dennis Patterson. If I might add a comment of my own, one of Artzi's point goes to the "armchair" sort of analysis that characterizes analytic philosophy in general and analytic jurisprudence in particular. I think most contemporary philosophers recognize the limitations of this approach, and it is fair to say that contemporary philosophy has entered a post-analytic phase. But I am much less convinced by Artzi's claim that the remedy is a turn to "social philosophy," with Habermas as an exemplar. I say this even though I am sympathetic to Habermas's project. There is much to be said for clarity and analytic precision, and a good deal of social philosophy in the continental tradition is obscure and (in my opinion) fuzzy. If this sort of thing interests you, the short exchange between Patterson and Artzi is worth a look. Legal Theory Bookworm The Legal Theory Bookworm recommends Law and Objectivity by Kent Greenawalt. Here's a blurb:
Download of the Week The Download of the Week is The Source of Blackstone's Intuition: Why We Think it Better to Free the Guilty than to Convict the Innocent by Sam Vermont. Here is the abstract:
Friday, September 23, 2005
Call for Papers: Duke Law Journal Conference on Katrina Duke Law Journal will be hosting a conference this March on the administrative law issues arising from Katrina. The call for papers is here: http://www.acsblog.org/DLJ.pdf. Friday Calendar
Washington & Lee Law School: Winnifred Fallers Sullivan, Senior Fellow, Martin Marty Center at the University of Chicago Divinity School, 57th John Randolph Tucker Lecture, “Comparing Religions, Legally.” Georgetown International Human Rights Colloquium: Ruti G. Teitel, New York Law School. Harvard Public Law, Kathleen Sullivan, Stanford. UCLA Law: Pierre Legrand, University of Paris Pantheon-Sorbonne, Comparative Legal Studies and the Matter of Authenticity: Looking at the US Supreme Court as Comparatist in Lawrence v. Texas University of Pennylvania Philosophy Colloquium: Kok-chor Tan, The Boundary of Justice, and the Justice of Boundaries. University of Texas Law: Brian Leiter, "Why Evolutionary Biology is (so far) Irrelevant to Law." Cancelled, To Be Rescheduled: University of Alabama School of Law: Ernest Young, University of Texas, The Volk of New Jersey? Sovereignty and Political Community in Europe and the United States. Book Announcement: On Adam Smith's Wealth of Nations by Samuel Fleischacker
Conference Announcement: Examining Folk Psychology
Conference Announcement:
Thursday, September 22, 2005
Thursday Calendar
Boston University School of Law: Dennis Patterson & Ari Afilalo (Rutgers University School of Law, Camden), "Statecraft, Trade and The Order of States". New-York Historical Society in Manhattan: Geoffrey Stone of the University of Chicago Law School, and Larry Kramer, Dean of Stanford Law School. University of Minnesota Public Law Workshop: Jim Chen, University of Minnesota Law School, The Death of the Regulatory Compact. George Mason Law: Hans-Bernd Schaefer, University of Hamburg and GMUSL Visitor, Law and Economics in Poor Countries: What Makes the Difference? Florida State Law: Anthony Sebok, Brooklyn Law School (Bridgeman) Punitive Damages: From Myth to Theory. Stanford Law & Economics: Laura Beny (University of Michigan Law School; Hoover Institution, 2005-06) "Reflections on the Diversity-Performance Nexus Among Elite American Law Firms: Toward a Theory of a Diversity Norm" University of Michigan Law & Economics: Sam Vermont, Michigan Humphrey Fellow, The Source of Blackstone's Intuition: Why We Think it Better to Free the Guilty than to Convict the Innocent. This is a fascinating paper, arguing that "Blackstone's intuition" is irrational and based on cognitive malfunctions. I may have more to say about this paper later. Yale Law Economics & Organizations: Professor Justin Wolfers, University of Pennsylvania, The Wharton School, Using Markets to Inform Policy: The Case of the Iraq War. Conference Announcement
Wednesday, September 21, 2005
Borgen on Norms & Transnational Tribunals Christopher Borgen has posted Transnational Tribunals and the Transmission of Norms: The Hegemony of Process on SSRN. Here is the abstract:
Wednesday Calendar
NYU History: Serena Mayeri, Golieb Fellow, "The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse." Northwestern Law & Economics: Jonathan Klick, Jeffrey A. Stoops Professor of Law, Florida State University, "Abortion Access and Risky Sex Among Teens: Parental Involvement Laws and Sexually Transmitted Diseases" Villanova Law: Alafair Burke, Hofstra University School of Law, "Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science" Google Print Lawsuit & Class Certification The New York Times reports on a potential class-action lawsuit filed by authors against Google Print in a story entitled Writers Sue Google, Accusing It of Copyright Violation. Here's a taste:
Conference Announcement: Justice & IP
Tuesday, September 20, 2005
Roberts in His Own Words John Roberts in His Own Words is a handy dandy compilation of his statements during the confirmation process. Here is a taste, from the section on Roberts's views on stare decisis or precedent:
“[S]tare decisis is not an inexorable command. . . . At the same time, you always have to take into account the settled expectations that have grown up around the prior precedent. It is a jolt to the legal system to overrule a precedent, and that has to be taken into account, as well as the different expectations that have grown up around it.” (September 13) Book Announcement: Williams on Moralism and Realism in Political Argument
Tuesday Calendar
Lewis & Clark Law School: Lydia Loren, Lewis & Clark, Creative Commons: Licenses, Abandonments and a Semicommons of Creative Works. Gely & Caron on the Next Generation of Law School Rankings Rafael Gely and Paul Caron have posted Dead Poets and Academic Progenitors: The Next Generation of Law School Rankings on SSRN. Here is the abstract:
Book Announcement: Athenian Legacies by Ober
Monday, September 19, 2005
Artzi & Patterson on the State of Jurisprudence Over at Law & Society Weblog, Nico Artzi has a post entitled What’s wrong with Jurisprudence?. The central claim is:
Of course, both law and morality are social phenomena, but Artzi realy produced no argument against utilization of the methods of moral philosophy in normative legal theory. One could try to make the case that morality is simply irrelevant to normative claims about criminal law, for example, But such a claim will be difficult to establish and it will require arguments, not bluster, to make the case. Call for Papers: Society for Applied Philosophy at Manchester
Conference Announcement: Conference for Thomas E. Hill Jr. at the University of Minnesota
Monday Calendar
Georgetown Environmental Research Workshop: Professor Robert Percival University of Maryland School of Law, "Who's Afraid of the Precautionary Principle?" Columbia Legal Theory Workshop: Andrew Rehfeld of Washington University in St Louis, "Towards a General Theory of Political Representation" Vanderbilt Law: Sean Griffith, University of Connecticut School of Law, "Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies" Barros on Home as a Legal Concept Benjamin Barros (Widener Law School) has posted Home as a Legal Concept on SSRN. Here is the abstract:
Conference on Trust Today at Cardozo
Sunday, September 18, 2005
Legal Theory Calendar
Georgetown Environmental Research Workshop: Professor Robert Percival University of Maryland School of Law, "Who's Afraid of the Precautionary Principle?" Columbia Legal Theory Workshop: Andrew Rehfeld of Washington University in St Louis, "Towards a General Theory of Political Representation" Vanderbilt Law: Sean Griffith, University of Connecticut School of Law, "Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies"
Lewis & Clark Law School: Lydia Loren, Lewis & Clark, Creative Commons: Licenses, Abandonments and a Semicommons of Creative Works.
NYU History: Serena Mayeri, Golieb Fellow, "The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse." Northwestern Law & Economics: Jonathan Klick, Jeffrey A. Stoops Professor of Law, Florida State University, "Abortion Access and Risky Sex Among Teens: Parental Involvement Laws and Sexually Transmitted Diseases" Villanova Law: Alafair Burke, Hofstra University School of Law, "Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science"
Boston University School of Law: Dennis Patterson & Ari Afilalo (Rutgers University School of Law, Camden), "Statecraft, Trade and The Order of States". New-York Historical Society in Manhattan: Geoffrey Stone of the University of Chicago Law School, and Larry Kramer, Dean of Stanford Law School. University of Minnesota Public Law Workshop: Jim Chen, University of Minnesota Law School, The Death of the Regulatory Compact. George Mason Law: Hans-Bernd Schaefer, University of Hamburg and GMUSL Visitor, Law and Economics in Poor Countries: What Makes the Difference? Florida State Law: Anthony Sebok, Brooklyn Law School (Bridgeman) Punitive Damages: From Myth to Theory. Stanford Law & Economics: Laura Beny (University of Michigan Law School; Hoover Institution, 2005-06) "Reflections on the Diversity-Performance Nexus Among Elite American Law Firms: Toward a Theory of a Diversity Norm" University of Michigan Law & Economics: Sam Vermont, Michigan Humphrey Fellow, The Source of Blackstone's Intuition: Why We Think it Better to Free the Guilty than to Convict the Innocent. Yale Law Economics & Organizations: Professor Justin Wolfers, University of Pennsylvania, The Wharton School, Using Markets to Inform Policy: The Case of the Iraq War.
Harvard Law School Public Law Workshops: Kathleen Sullivan, Stanford Law School. Washington & Lee Law School: Winnifred Fallers Sullivan, Senior Fellow, Martin Marty Center at the University of Chicago Divinity School, 57th John Randolph Tucker Lecture, “Comparing Religions, Legally.” Georgetown International Human Rights Colloquium: Ruti G. Teitel, New York Law School. Harvard Public Law, Kathleen Sullivan, Stanford. UCLA Law: Pierre Legrand, University of Paris Pantheon-Sorbonne, Comparative Legal Studies and the Matter of Authenticity: Looking at the US Supreme Court as Comparatist in Lawrence v. Texas University of Pennylvania Philosophy Colloquium: Kok-chor Tan, The Boundary of Justice, and the Justice of Boundaries. University of Texas Law: Brian Leiter, "Why Evolutionary Biology is (so far) Irrelevant to Law." Legal Theory Lexicon: The Reasonable Person
Introduction Good morning from Newton, Massachusetts. Today's Legal theory Lexicon is about the "reasonable person," who used to be the "reasonable man" and is now occasionally the "reasonable woman." This topic was suggested to me by my host and friend, the eminently reasonable (and rational) Ken Simons of the Boston University law faculty yesterday, and Ken and I kicked around the ideas that follow. The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory. A cautionary note. The word "reasonable" is used in a wide variety of legal contexts, some of which have very little to do with the reasonable person. In Antitrust law, for example, the notion of "an unreasonable restraint of trade" is crucially important, but this topic does not, at least on the surface, have anything to do with the reasonable person of torts and criminal law. The Reasonable and the Rational This is, after all, Legal Theory Blog, so I hope you will forgive me for starting at a fairly high level of abstraction. "Reasonable" and "rational" are used in many different contexts and have a variety of meanings, but when I think about the "reasonable," the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls. When the rational is defined in contradistinction to the reasonable, rational usually refers to instrumental rationality--that is, the rationality of ends and means. Given that an agent has end X, it is rational for the agent to engage in action Y, only if Y will lead to X. Instrumental rationality is relative to the ends of a particular agent, and may (but need not) consider the interests of others. Thus, it may be instrumentally rational for me to steal from you, if you have something that I want and I have good reason to believe that I won't get caught. But it may also be rational for me to help a stranger, if I happen to have the welfare of others as my end. When we contrast the reasonable with the rational, the notion of the reasonable goes beyond instrumental rationality. It may be rational for me to steal from you, but unreasonable for me to do so. Why not? Well, that is quite a question. One answer is based on the idea that the reasonable is, in some way, connected to what could be justified to others. Another idea is that the reasonable is in some way specified by that to which others would consent. So as we are thinking about the "reasonable person," it is important to distinguish her from her cousin, the "rational person." The rational person may or may not take the interests of others into account. To be a reasonable person, however, is to consider the interests or viewpoints of others--to give them their proper due. Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"? How much is enough? How much is too much? So far, we have only the general concept of the reasonable person. In order to make use of the "reasonable person" in the law, we need a particular conception of the "reasonable person"--a set of standards or criteria that will enable us to sort the reasonable actions from the unreasonable ones. Subjective and Objective Reasonableness One more preliminary distinction--much is made of the difference between subjective and objective reasonableness. For example, we might, for example, distinguish between the "reasonable person" and the "reasonable intoxicated person" or the "reasonable person with a developmental disability" or the "reasonable person with a hot temper." Usually, we call the reasonable-person standard an objective standard, signifying that the we are not taking the particular characteristics of defendants in tort or criminal actions into account when we ask whether they met the relevant standard of care. Some critics of the reasonable person standard argue that its "objectivity" is a mask for a bias that favors some groups over others. On this, see Mayo Moran's forthcoming book Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard. Learned Hand and the Reasonable Person as Cost-Benefit Analyst The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous Carroll Towing case.
The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency, and specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.) Even if the Learned Hand formula is best interpreted as employing cost-benefit analysis or the economic idea of efficiency, it does not directly follow that the purpose of the law of negligence is itself to promote the most cost-beneficial consequences. It might be, for example, that a strict liability regime (rather than a negligence regime) will produce the best consequences. There are two different questions regarding the relationship between cost-benefit analysis and the reasonable person. (1) Does the reasonable person standard employ cost-benefit analysis as the criterion for negligence?, and (2) Does cost-benefit analysis support the choice of negligence (as opposed to strict liability or no liability) as the rule governing nonintentional torts? Once the questions are separated, it is clear that they are different. It might be that the law employs a cost-benefit (Learned Hand) test as the standard of care in negligence cases, but that this approach itself is not the best when judged by cost-benefit analysis. Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others Although many scholars interpret the Learned Hand formula as an endorsement of an economic approach to the reasonable person, others reject this move. The Hand formula can also be interpreted as reflecting an argument of principle (or fairness). At a very high level of generality, we might say that the reasonable person treats others with respect. This approach to the reasonable person is roughly correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative. The reasonable person, we might say, acts so that the maxim of her action (the principle upon which she acts) could be willed as a universal law--or to be put it differently, the reasonable person treats others as ends-in-themselves and not only as means. In this vein, Ronald Dworkin has argued that the Learned Hand formula can be understood as reflecting the moral equality of persons. Virtue Jurisprudence and the Aretaic Conception of the Reasonable Person Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in particular from the idea that the focal standard for morality is the "virtuous agent," i.e. the person who posseses the moral and intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose. And the winner is . . . As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then? Conclusion If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory. Bibliography Saturday, September 17, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends America's Constitution: A Biography by Akhil Amra.
Download of the Week The Dowload of the Week is Originalism and the Sense-Reference Distinction by Chris Green (Notre Dame). Here is the abstract:
Saturday Calendar
Friday, September 16, 2005
AALS Meeting to Move from New Orleans The Association of American Law Schools has announced that the annual meeting will move from New Orleans:
The Prospects of a Nuclear Showdown Over the Next Supreme Court Nominee Election-law superblogger Rick Hasen has a very interesting post on the question whether the next nominee for the Supreme Court--the replacement for Justice O'Connor--will provoke a "nuclear showdown." By "nuclear showdown", Rick means a filibuster by Senate Democrats that provokes the so-called "nuclear option," i.e. the use of a parliamentary maneuver to amend the Senate Rules and amend the cloture rules for judicial nominations. Here is a taste from his post, A Coming Nuclear Showdown in the Senate?::
Another interesting question raised by Hasen's post is, "What would happen if the President did nominate someone whose position on abortion made it seem highly likely that the nominee would vote to overule Roe v. Wade?" That's a complicated question, but I would like to offer several observations:
One more thing: The President and his advisors will be thinking about all of this when they decide who to nominate. If they are convinced that nominating a sure vote to overrule Roe would trigger a successful filibuster and a failed nuclear option, it seems likely that they won't want to incur the costs associated with that scenario. If they believe that a filibuster would be broken and hence won't be seriously attempted, then such an appointment becomes at least feasible. The President (and everyone else) will be reading the tea leaves about this and other scenarios before he decides who to nominate! David Law and I have written a paper that analyzes the role of the nuclear pivot in the judicial confirmation process: Pivotal Politics, Appointments Gridlock, and the Nuclear Option (click on the title to go the download page). We would welcome your comments! Friday Calendar
UCLA Law: Orin Kerr, George Washington School of Law, "Searches and Seizures in a Digital World" Villanova Law School: SYMPOSIUM, THE LEGACY OF JOHN COURTNEY MURRAY FOR LAW AND POLITICS
Thursday, September 15, 2005
Charles Lane on Roberts Charles Lane has a way-above-averge analysis of Roberts in a story entitled A Conservative, Yes, but Not a Scalia. Here is taste:
Caron & Hoffman on Law School Hiring Check out Law Faculty Hiring: Pedigree or Performance? by Paul Caron and Entry Level Hiring and Moneyball by David Hoffman. Welcome to the Blogosphere . . . . . . to Brett Frischmann (Loyola, Chicago) who has joined Mike Madison at Madisonian.net. Thursday Calendar
NYU Colloquium in Law, Philosophy, and Political Theory: David Velleman, Against the Right to Die & A right to Self- Termination George Mason Law: Giuseppe Dari-Mattiacci, University of Amsterdam and GMUSL Visitor, Substituting Complements. Loyola Law School Los Angeles: Richard Leo, Associate Professor of Criminology, Law and Society; and Associate Professor of Psychology and Social Behavior, University of California at Irvine, "Police Interrogation and the American Process of Justice" University of Michigan Law & Economics: Curtis Milhaupt, Columbia, In the Shadow of Delaware? The Rise in Hostile Takeovers in Japan Steinman on the Class Action Fairness Act Adam Steinman (Cincinnati) has posted Sausage-Making, Pigs' Ears, and Congressional Expansions of Federal Jurisdiction: Exxon Mobil v. Allapattah and its Lessons for the Class Action Fairness Act on SSRN. Here is the abstract:
Wednesday, September 14, 2005
Wright on Competition for Distribution Joshua D. Wright (George Mason) has posted Antitrust Law and Competition for Distribution on SSRN. Here is the abstract:
Wednesday Calendar
NYU Legal History Colloquium: Richard Epstein, James Parker Hall Dist. Serv. Professor, University of Chicago, “Of Citizens and Persons: Reconstructing the Privileges Or Immunities Clause of the Fourteenth Amendment” Tuesday, September 13, 2005
Does John Roberts Have a Judicial Philosophy
Is It the Case that Every Judge Must Have an Overall Judicial Philosophy A good deal of ink has been spilled on the question whether John Roberts has a judicial philosophy (or will inevitably develop one). One common position is that Roberts must be dissimulating (or enaged in self deception). All judges have judicial philosophies--so the argument goes--and so John Roberts must have one. Of course, the question whether judges must have a judicial philosophy is vague. On the one hand, a "judicial philosophy" might simply be a judge's beliefs and attitudes about the process of judging--whether systematic or not. In that sense, all competent judges must have some judicial philosophy--since the process of judging requires substantial reflection. On the other hand, "judicial philosophy" might have a much more particular meaning. By "judicial philosophy" we might mean a "decision procedure for judging"--a method, recipe, or algorithm for judging. For example, a fully articulated theory of originalism might be considered a "decision procedure" for constitutional interpretation: Interpret the constitution so that the meaning accords with the public meaning as it would have been understood at the time when the relevant provision of the Constitution was adopted. Must every judge have a "decision procedure for judging"? Decision Procedures for Judging--and the Alternatives I get the sense that many legal theorists (and others) believe that every judge has--implicitly or explicitly--some decision procedure for judging. Of course, such decision procedures could vary in form and content. Thus, some judges might be relatively formalist--deciding the cases before them on the basis of preexisting rules the content of which is determined by further rules. But one can imagine a decision procedure in which rules play a minimal role. For example, one can imagine a consequentialist procedure for judging--decide each case so as to produce the best consequences (e.g. so as to maximize utility). Must a judge have a "judicial philosophy" in this sense--the sense of a decision procedure for judging? I would like to suggest that the enterprise of judging can (even should) proceed without a "judicial philosophy" in that sense. This question is, of course, related to a similar question in moral philosophy--whether there is a decision procedure for ethics. In fact, the two questions are quite similar. In ethics, as in law, there are decision procedures that are rule focused--deontological moral theories. In ethics, as in law, there are decision procedures that are consequence focused--utilitarian and welfarist moral theories. But the question whether there is a decision procedure for ethics is a controversial one. Some moral theorists aruge that there is no correct "decision procedure for ethics"--"virtue ethics" and "moral particularism" are among the labels used to describe theories that affirm this view. Legal Particularism So is it possible to be a "legal particularist"? Can one believe in the priority of the particular, or in legal paralence, the "primacy of facts"? I've argued for one version of this thesis in Virtue Jurisprudence: A Virtue-Centered Theory of Judging. Judge Roberts testimony today might be interpreted as affirming a form of "legal particularism"--and he also suggested that in general it is academics and not judges who affirm systematic decision procedures for judging. The core argument for moral particularism was first articulated by Aristotle, who famously argued that the complexity of the world outruns the capacity of a theory to prescribe correct action in all circumstances. (A good secondary source on this is "Ethics as an inexact science: Aristotle and the ambitions of moral theory," in Moral Particularism, ed. B.W. Hooker and M. Little (Oxford UP, 2000)). There can be no code or calculus that consistently yields the correct result in each and every possible case. Law and morality are both practical normative enterprises. As it is with morality, so it is with law--no decision procedure gives the complexity of law and life. Of course, this leads to further questions. What role do legal rules have for fact-driven judging? How does Judge Roberts reconcile his "umpiral" view of judging with his affirmation of legal particularism? What role do the "rules laid down" play for a judge who believes that judging must begin with the facts? These are important questions, and the answers to these questions would, in an important sense, form an important component of Judge Roberts's "judicial philosophy." And this brings us round to the our starting point. When we say that Judge Roberts must have a "judicial philosophy," I am inclined to say that's right--so long as we do not understand the phrase "judicial philosophy" to refer to a decision procedure for judging. Welcome to the Blogosphere . . . . . . to ImmigrationProf Blog edited by Jennifer Chacón (UC-Davis), Bill O. Hing (UC-Davis), and Kevin R. Johnson (UC-Davis). Book Announcement: Ignatieff on Ethics in an Age of Terror
Tuesday Calendar
Florida State Law: James Salzman, Duke Law School, Thirst: The History and Policy of Drinking Water. Green on the Sense-Reference Distinction & Originalism Chris Green (Notre Dame) has Originalism and the Sense-Reference Distinction on SSRN. Here is the abstract:
Monday, September 12, 2005
Welcome to the Blogosphere . . . . . . to Linda Beale's ataxingmatter. Check out Katrina's Tax Lesson. Roberts Effect on the Supreme Court
Roberts and the Ideological Balance of the Court Much of the popular discussion of the Supreme Court implicitly relies on the attitudinal model of Supreme Court decisionmaking--that is, that judges occupy a position in ideological space and that there votes in cases directly reflect their politics. John Roberts has been circumspect in his public pronouncements on the hot button issues and almost silent on systematic judicial philosophy. But despite his stealthiness, almost everyone guesses that Roberts is quite conservative in two senses. First, the conventional wisdom is that Roberts is politically very conservative--after all, he has served in conservative administrations and surely has been vetted on that question by the President's advisors. Second, the conventional wisdom is that Roberts has a "conservative" judicial philosophy--that he is influenced by originalism and opposes "judicial activism." The conventional wisdom is likely to be mostly correct, but there are at least two qualifications of the conventional wisdom that are crucially important. First, Roberts’s effect on the court is determined by two factors--his own dispositions and who he is replacing. And Roberts in replacing Rehnquist, not O'Connor. Chief Justice Rehnquist was already one of the most conservative judges in the modern history of the Court--there simply isn't much room in ideological space to his right. Moreover, on those issues were Rehnquist appeared to moderate his views, there is some reason to believe that Rehnquist was acting on the basis of tactical or strategic motives--moving slightly to the left in order to move the court's decision to the right. Because Roberts replaces Rehnquist, his confirmation cannot move the ideological balance very far to the right in the short run. There is another point to make about the fact that Roberts is replacing Rehnquist. Rehnquist is not a "swing vote" on very many issues. In a sense, Justice's only make a "difference" when they occupy the median (swing or pivotal) position on particular issue. On many issues, Rehnquist was the third most conservative justice, and his replacement by Roberts will not affect outcomes on those issues--assuming that Roberts is as conservative (or more conservative) than Rehnquist. There is, however, one area in which Roberts could potentially shift the balance of the Court--to the left! Rehnquist was one of five votes for what is sometimes called "The New Federalism." For example, in United States v. Lopez and United States v. Morrison, Rehnquist wrote the Opinions of the Court that struck down federal statutes on the ground that these statutes went beyond Congress's powers under the commerce clause of the Constitution. And how will Roberts vote in federalism cases? The real answer is that we don't know. There are, however, reasons to suspect that Roberts may be more liberal than was Chief Justice Rehnquist on federalism issues. Kenneth Manning of the University of Massachusetts has written a very interesting paper that evaluates all of Roberts votes on the Court of Appeals on the basis of their ideological valence: How Right Is He? A Quantitative Analysis of the Ideology of Judge John G. Roberts (downloadable PDF file). Here is the abstract of Manning's paper:
Long Term Effects of a Roberts Confirmation But Roberts’s appointment may effect more than the immediate ideological balance of the Court. My impression--based on media reports and conversations with several people who have worked directly with Roberts--is that he is both very smart and interpersonally effective. These characteristics suggest that Roberts might have an effect on the Court that will transcend his single vote--both in the way that he influences his fellow justices and through his power of assigning opinions. I am hardly a close student of the internal politics of the Supreme Court, and those politics undoubtedly vary with the makeup and chemistry of the nine particular individuals who occupy the role of Justice. Nonetheless, my reading of the history of the Court is that one or two individuals can sometimes affect the Court in important ways. From Justice John Marshall to Justice Brennan, the history of the Supreme Court seems to suggest that leadership can make a real difference. Caveats and Uncertainty Of course, predicting the future is fraught with peril. John Roberts has never been a Supreme Court Justice. There is no upward move from Chief Justice of the Supreme Court. Although the votes of Supreme Court Justices are broadly constrained by other political and legal forces, Roberts will have a degree of freedom that is very different from the freedom he had as a Court of Appeals judge. Certainly, he will not face the same constraints that he did as a lawyer with clients to serve. Perhaps, in the end the conventional wisdom about John Roberts will be confirmed by experience. Then again, perhaps not. Monday Calendar
A Message from Dan Hunter on Open Access to Scholarship
Sunday, September 11, 2005
Legal Theory Calendar
Florida State Law: James Salzman, Duke Law School, Thirst: The History and Policy of Drinking Water.
NYU Legal History Colloquium: Richard Epstein, James Parker Hall Dist. Serv. Professor, University of Chicago, “Of Citizens and Persons: Reconstructing the Privileges Or Immunities Clause of the Fourteenth Amendment”
NYU Colloquium in Law, Philosophy, and Political Theory: David Velleman, Against the Right to Die & A right to Self- Termination George Mason Law: Giuseppe Dari-Mattiacci, University of Amsterdam and GMUSL Visitor, Substituting Complements. Loyola Law School Los Angeles: Richard Leo, Associate Professor of Criminology, Law and Society; and Associate Professor of Psychology and Social Behavior, University of California at Irvine, "Police Interrogation and the American Process of Justice" University of Michigan Law & Economics: Curtis Milhaupt, Columbia, In the Shadow of Delaware? The Rise in Hostile Takeovers in Japan
UCLA Law: Orin Kerr, George Washington School of Law, "Searches and Seizures in a Digital World" Villanova Law School: SYMPOSIUM, THE LEGACY OF JOHN COURTNEY MURRAY FOR LAW AND POLITICS
Legal Theory Lexicon 003: Hypotheticals
What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from hypotithenai, "to put under." In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching. Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Ben agreed to pay Alice $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following: The Purposes of Hypotheticals Why do law professors use hypotheticals? "Beware the hypothetical, my child. The laws that catch, the facts that bite." Hypos can be fun, but many law students don't have a good time, when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialog is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game. Lesson Number One: Fight the hypothetical, lose the war! The first and most important lesson to learn about hypotheticals is that you can't get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the "hypothesis." One way to do this is to fight the facts. "That wouldn't happen." Or "In the real world, it would happen differently." Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, "O.K., but for the sake of argument, assume these facts." At the best, you get another version of the same hypo that works around your factual objection." As a general rule, don't fight the facts. Lesson Number Two: Watch for Slippery Slopes Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule." When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon. Lesson Number Three: Watch Out for Cold Rules and Hot Facts This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. "Starving babies" are a common device. But should Alice have to pay Ben damages if Alice has a "starving baby!" Of course not, you say to yourself, but in fact whether or not Alice's baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense." Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of "necessity." Obviously, these two strategies can be combined: "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of "necessity" to actions for breach of contract." Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:
Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn't. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided--"novel questions" where not precedent or rule is binding; (2) Rules sometimes have "gaps," places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a "hard case." When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:
(2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body. (3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted. Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren't punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as "intuition pumps." That is, the wild case is constructed so as to generate a particular reaction--an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating--they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work--pumping the intuition. When you are questioned about a wild case, you should simply give your reaction--your gut instinct. But it is also fair to qualify your answer: "My answer is yes, but this case is so wild that I really don't feel very sure about my intuitions." Wild cases are the desert of law school. Saturday, September 10, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America by Cass R. Sunstein. Here's the blurb:
Download of the Week The Download of the Week is Copyfraud by Jason Mazzone. Here is the abstract:
Friday, September 09, 2005
Friday Calendar
Georgetown International Human Rights Colloquium: Thomas M. Franck, New York University School of Law, "State Responsibility for Genocide and Humanitarian Wrongs in the Era of Individual Criminal Culpability" UCLA Faculty Colloquium: Professor Emerson Tiller, Northwestern University School of Law, "Strategic Judging Under the United States Sentencing Guidelines: Positive Political Theory and Evidence" University of Texas Law: Ernie Young (UT), Foreign Law and the Denominator Problem Greenberg on How Facts Make Law Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted How Facts Make Law (Legal Theory, Vol. 10, pp. 157-198, 2004) on SSRN. Here is the abstract:
Guttel & Medina on the Distributive Effects of Criminal Sanctions Ehud Guttel and Barak Medina (Hebrew University of Jerusalem - Felt Center for Legal Studies and Law Faculty, Hebrew University of Jerusalem) have posted Less Crime, More (Vulnerable) Victims: The Distributional Effects of Criminal Sanctions on SSRN. Here is the abstract:
Griffith on Price Discrimination Sean J. Griffith (University of Connecticut - School of Law) has posted The Puzzling Persistence of the Fixed Price Offering: Implicit Price Discrimination in IPOs on SSRN. Here is the abstract:
McAdams on Entrapment Richard H. McAdams (University of Illinois College of Law) has posted A Tempting State: The Political Economy os Entrapment (U Illinois Law & Economics Research Paper No. LE05-019) on SSRN. Here is the abstract:
Caron Offers Sage Advice to Mothers Paul L. Caron (University of Cincinnati College of Law) has posted Tax Myopia, or Mamas Don't Let Your Babies Grow Up to be Tax Lawyers (Virginia Tax Review, Vol. 13, p. 517, 1994) on SSRN. Here is the abstract:
Thursday, September 08, 2005
Book Announcement
Garrett on Harmless Error & Wrongful Conviction Brandon Garrett (Virginia) has posted Innocence, Harmless Error, and Federal Wrongful Conviction Law (Wisconsin Law Review, Vol. 35, 2005) on SSRN. Here is the abstract:
Call for Papers: Law, Culture, & the Humanities
Thursday Calendar
NYU Colloquium in Legal, Political and Social Philosophy: Seana Shiffrin, The Divergence of Contract and Promise: Promising, Intimate Relationships, and Conventionalism Fordham University Law: Sylvia Law, Who Gets to Interpret the Constitution? The Case of Mayors and Same Sex Marriage George Mason Law: JJ Prescott, Harvard Law School and MIT Department of Economics, Measuring the Consequences of Criminal Jury Trial Protections Wednesday, September 07, 2005
John E. Cribbet I am very honored that today I will be "invested" as the John E. Cribbet Professor of Law at the University of Illinois. Professor John E. Cribbet is an icon within the College of Law and the larger University of Illinois community. A 1947 graduate of Illinois Law, Cribbet was named a full Professor in Law in 1953. He became the College's seventh Dean in 1967 and in 1979 he left the College to become Chancellor of the flagship Urbana-Champaign campus of the University of Illinois. He returned to the College five years later and was named the Richard W. and Marie L. Corman Professor of Law, a position which he now holds in emeritus status. Cribbet is truly a living legend at the University of Illinois--an amazing scholar, beloved teacher, and revered leader. I would also like to express my gratitude to Christian "Rick" Heiligenstein, Illnois Law Class of '55, and his wife, Lisolette Heiligenstein, created the John E. Cribbet Professorship in 2004. And finally, thank you to all my friends in the blogosphere and the legal academy who have sent messages of congratulations. Truth & Trust Check out Claims of Truth and Webs of Trust. A Hypothetical Debate by Hanno Kaiser on Law & Society Weblog. Here's a taste:
Robinette on a Unified Theory of Torts Christopher J. Robinette (Widener Univ. School of Law) has posted Can There be a Unified Theory of Torts? A Pluralist Suggestion from History and Doctrine on SSRN. Here is the abstract:
Harel & Clement on Shame & Deterrence Alon Harel (Hebrew University of Jerusalem - Felt Center for Legal Studies) & Alon Klement (Interdisciplinary Center Herzliyah - Radzyner School of Law) have posted The Economics of Shame: Why More Shaming May Deter Less on SSRN. Here is the abstract:
Tuesday, September 06, 2005
Request for Assistance with the Legal Theory Calendar--Moved to the Top of the Blog I would greatly appreciate help identifying websites that list speakers, conferences, and workshops for the Legal Theory Calendar. If your law school or other legal theory program has such a website, just email the link to: lsolum@gmail.com. Thank you! Tuesday Calendar
Duke Law School: Orin Kerr, Searches and Seizures in a Digital World Mazzone on Copyfraud Jason Mazzone (Brooklyn) has posted Copyfraud on SSRN. Here is the abstract:
Klein & Wright on Slotting Arrangments Benjamin Klein (UCLA Economics) & Joshua Wright (George Mason Law) have posted The Economics of Slotting Arrangements on SSRN. Here is the abstract:
Stras & Scott on Life Tenure David Stras (Minnesota) & Ryan Scott (10th Circuit) have posted Retaining Life Tenure: The Case for a Golden Parachute on SSRN. Here is the abstract:
Conference Announcement: Behavioral Analysis of Corporate Law at Lewis & Clark
Monday, September 05, 2005
Mihail Posts New Version John Mikhail has posted a new version of Aspects of the Theory of Moral Cognition: Investigating Intuitive Knowledge of the Prohibition of Intentional Battery and the Principle of Double Effect on SSRN. If you missed this the first time around, it is highly recommended. Roberts to be Nominated as Chief CNN is reporting that the President with renominated Roberts for the position of Chief Justice of the Supreme Court of the United States. Weekend Update On Saturday, the Download of the Week was There's No Such Thing as Biopiracy ... And It's a Good Thing Too by Jim Chen and the Legal Theory Bookworm recommended Priceless: On Knowing the Price of Everything and the Value of Nothing. On Sunday, the Legal Theory Lexicon entry was on the Coase Theorem and the Legal Theory Calendar previewed this weeks workshops and colloquia. Clermont on Reverse Erie Kevin M. Clermont (Cornell University - School of Law) has posted Reverse-Erie (Cornell Legal Studies Research Paper No. 05-021) on SSRN. Here is the abstract:
Claus on Constitutional Guarantees of the Judiciary Laurence Claus (Univeristy of Scan Diego) has posted Constitutional Guarantees of the Judiciary: Jurisdiction, Tenure, and Beyond (American Journal of Comparative Law, Vol. 54) on SSRN. Here is the abstract:
Kysar on Heuristics Douglas A. Kysar (Cornell University - School of Law) has posted Are Heuristics a Problem or a Solution on SSRN. Here is the abstract:
Bandes on Criminal Lawyering Susan Bandes (DePaul University College of Law) has posted Repression and Denial in Criminal Lawyering (Buffalo Criminal Law Review, Vol. 9, No. 2, February 2006) on SSRN. Here is the abstract:
Godsey on Miranda Mark Godsey (University of Cincinnati - College of Law) has posted Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings (Minnesota Law Review, Vol. 90, 2006) on SSRN. Here is the abstract:
Sunday, September 04, 2005
Legal Theory Calendar
Duke Law School: Orin Kerr, Searches and Seizures in a Digital World
NYU Colloquium in Legal, Political and Social Philosophy: Seana Shiffrin, The Divergence of Contract and Promise: Promising, Intimate Relationships, and Conventionalism Fordham University Law: Sylvia Law, Who Gets to Interpret the Constitution? The Case of Mayors and Same Sex Marriage George Mason Law: JJ Prescott, Harvard Law School and MIT Department of Economics Title: Measuring the Consequences of Criminal Jury Trial Protections
Georgetown International Human Rights Colloquium: Thomas M. Franck, New York University School of Law, "State Responsibility for Genocide and Humanitarian Wrongs in the Era of Individual Criminal Culpability" UCLA Faculty Colloquium: Professor Emerson Tiller, Northwestern University School of Law, "Strategic Judging Under the United States Sentencing Guidelines: Positive Political Theory and Evidence" University of Texas Law: Ernie Young (UT), Foreign Law and the Denominator Problem Legal Theory Lexicon: The Coase Theorem
This is where Coase came in. But to understand what Coase said, we need to add another bit of economic jargon. By transaction cost, we mean the cost of reaching a bargain. In the real world, lawyers are frequently part of transaction costs, but the time and expense that it takes to strike a deal are transaction costs as well--even if you don't actually lay out any cash. One more little move, if we assume that there are zero transaction costs, we are simply assuming that it costs absolutely nothing to strike a deal--no time, no effort, no lawyers, not even any paper on which to write it up. Coase said, "Let's assume zero transaction costs!" Okey dokey, what next! If we assume zero transaction costs, then when there are externalities, the market will reach the efficient outcome irrespective of how entitlements are assigned. Another mouthful! Let's go back to our hypo:
If we assign the entitlement to the railroad, the farmer will incur $100 in costs from the fire. The farmer will realize that he can save this $100 cost by entering into a contract whereby he pays $50 (plus some extra enducement, say $51 total) to the railroad in exchange for the railroad installing the spark arrestor. Since we have assumed zero transaction costs, the railroad and the farmer both benefit from this deal. One word of warning, the zero-transaction-costs assumption is just an assumption. In the real world, there are always (or almost always) transaction costs. Nonetheless, in some situations, transactions costs are sufficiently low so that the efficient bargain can be struck. In other situations, this is not the case. That's where the action is! Links Rehnquist and the "New Federalism" William Rehnquist had a big impact on American law, but one of his most important and distinctive legacies is sometimes called "The New Federalism," a series of constitutional cases that reinvigorated the constitutional federalism provisions, including the 10th and 11tha Amenmdents and the enforcement of Article I. Two of the most important new federalism cases were United States v. Lopez and United States v. Morrison. In thiese cases, the Supreme Court struck down federal statutes on the ground that they exceeded Congress's power under the commerce clause. Both Lopez and Morrison were 5-4 decisions, with Chief Justice Rehnquist writing the opinion of the court--joined by Justices's O'Connor, Kennedy, Scalia, and Thomas. Both Rehnquist and O'Connor dissenting (along with Thomas) in Gonzales v. Raich, the case in which a majority upheld Congress's power to regulate noncommercial intrastate possession of medical marijuana. One of the many questions about the new Supreme Court will concern the future of the new federalism--given the departure of both Rehnquist and O'Connor. It is not clear that John Roberts will be in the mold of O'Connor and Rehnquist--he could be the fifth vote to confine Lopez and Morrison to their facts (or even overrule these cases). If, in addition, the replacement for Rehnquist voted like Justice Scalia on federalism issues, then the Raich might have been an 8-1 decision if it had been preseted to the Court as it could be constituted this fall. In other words, the future of the "New Federalism" (and with it, an important part of Chief Justice Rehnquist's constitutional legacy) rides in some sense on the next two appointments to the Supreme Court. Rehnquist Scholarship Here are some dowloadable papers that deal with the jurisprudence, impact, and legacy of Chief Justice Rehnquist and the Rehnquist Court:
Keith E. Whittington, William H. Rehnquist: Nixon's Strict Constructionist, Reagan's Chief Justice Timothy Zick, Marbury Ascendant: The Rehnquist Court and the Power to 'Say What the Law Is' Michael Herz, The Rehnquist Court and Administrative Law E. Thomas Sullivan, Judicial Sovereignty: The Legacy of the Rehnquist Court Nelson Lund, The Rehnquist Court's Pragmatic Approach to Civil Rights Geoffrey R. Stone, Justice Rehnquist and 'The Freedom of Speech, or of the Press' Michael Greve and Jonathan Klick, Preemption in the Rehnquist Court: A Preliminary Empirical Assessment Eric Claeys, Takings and Private Property on the Rehnquist Court Ellen D. Katz, Federalism, Preclearance, and the Rehnquist Court Edwin S. Fruehwald, The Rehnquist Court and Horizontal Federalism: An Evaluation and a Proposal for Moderate Constitutional Constraints on Horizontal Federalism Ruth Colker and Kevin M. Scott, Rehnquist and Federalism: An Empirical Perspective Lori A. Ringhand, Judicial Activism and the Rehnquist Court Indirect Funding and the Establishment Clause: Rehnquist's Triumphant Vision of Daniel O. Conkle, Neutrality and Private Choice Denise C. Morgan, Reneging on the Promise of Brown: The Rehnquist Court and Education Rights Dawn E. Johnsen, Ronald Reagan and the Rehnquist Court on Congressional Power: residential Influences on Constitutional Change Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power Saturday, September 03, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Priceless: On Knowing the Price of Everything and the Value of Nothing by Frank Ackerman and Lisa Heinzerling. Here's the a short review from Publishers Weekly:
Download of the Week The Download of the Week is There's No Such Thing as Biopiracy ... And It's a Good Thing Too (McGeorge Law Review, Vol. 36, 2005) by Jim Chen. Here is the abstract:
Friday, September 02, 2005
Link Fixed My apologies for the broken link to Pivotal Politics, Appointments Gridlock, and the Nuclear Option yesterday. This should work. Leiter & Ribstein on SSRN Check out More Fun with SSRN Downloads on Leiter's Law School Reports. And check out SSRN postings and faculty productivity by Larry Ribstein on Ideoblog. Friday Calendar
Schoenbrod and Sandler on Institutional Reform Litigation David Schoenbrod and Ross Sandler (New York Law School and New York Law School) have posted The Supreme Court, Democracy and Institutional Reform Litigation (New York Law School Law Review, Forthcoming) on SSRN. Here is the abstract:
Heinzerling on Daubert Lisa Heinzerling (Georgetown University Law Center) has posted Doubting Daubert (Georgetown Public Law Research Paper No. 784689) on SSRN. Here is the abstract:
Lerner on Enron and the CIA Craig S. Lerner (George Mason University - School of Law) has posted Calling a Truce in the Culture Wars: From Enron to the CIA (George Mason Law & Economics Research Paper No. 05-24) on SSRN. Here is the abstract:
Issacharoff and Delaney on Credit Card Accountability Samuel Issacharoff and Erin F. Delaney (New York University School of Law and New York University - School of Law) have posted Credit Card Accountability (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
Kim on Hate Crimes & the Limits of Inculpation Janine Young Kim (Whittier Law School) has posted Hate Crime Law and the Limits of Inculpation (Nebraska Law Review, 2006) on SSRN. Here is the abstract:
Thursday, September 01, 2005
Blogs for New Orleans Law Schools Eric Muller writes:
My Panel at APSA I'll be presenting today at the American Political Science Association in Washington DC, with my co-author David Law. Our paper is: Pivotal Politics, Appointments Gridlock, and the Nuclear Option. You can download the paper from SSRN by following the link. Here is the information on the panel:
Thursday Calendar
American Political Science Association Annual Meeting, Washington DC |