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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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Monday, October 31, 2005
Hasen Predicts Check out Rick Hasen's prediction re the outcome of the Alito nomination here. Here's a taste:
Weekend Update On Saturday, the Download of the Week was Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change by Ronen Avraham and the Legal Theory Bookworm recommended America's Constitution : A Biography by Akhil Reed Amar. On Sunday, the Legal Theory Lexicon entry was Deontology and the Legal Theory Calendar previewed this weeks workshops and conferences. Monday Calendar
Columbia Legal Theory Workshop: Alon Harel of Hebrew University in Jerusalem, "The Right to Judicial Review" London School of Economics: Meghnad Desai (LSE), Measures of Development NYU Law: Sam Estreicher & Shmuel Leshem UCLA Law: Professor Muneer Ahmad, American University, Washington College of Law, Interpreted Communities: Lawyering Across Language Difference Call for Papers: Collective Intentionality
Conference Announcement: Comparative Hate Speech Regulation at Cardozo
Alito President Bush will nominate Samuel Alito to replace Sandra Day O'Connor as Associate Justice of the Supreme Court of the United States. Some links:The official announcement will be at 8:00 a.m. Eastern Standard Time. Sunday, October 30, 2005
Legal Theory Calendar
Columbia Legal Theory Workshop: Alon Harel of Hebrew University in Jerusalem, "The Right to Judicial Review" London School of Economics: Meghnad Desai (LSE), Measures of Development NYU Law: Sam Estreicher & Shmuel Leshem UCLA Law: Professor Muneer Ahmad, American University, Washington College of Law, Interpreted Communities: Lawyering Across Language Difference
Lewis & Clark Law: Susan Mandiberg, Why the Federal Sentencing Guidelines Were Doomed to Failure. Oxford Intellectual Property Research Centre: Dr Greenhalgh & Dr Mark Rogers, Trade Marks & Performance in Services USC : Direct Democracy on the Brink: The California Special Election. This looks like a fabulous event! Be sure to click through for the lineup of speakers!
University College, London, Mellon Foundation: Andrea Baumeister (Stirling), Diversity and Unity: The Problem with Constitutional Patriotism Philosophy of Education, London: Graham Haydon, On the Duty of Educating Respect: a response to Robin Barrow's 'On the Duty of Not Causing Offence' Northwestern Law & Economics: Randy Kroszner, Professor of Economics, University of Chicago. NYU Legal History: Gerard Magliocca, Associate Professor of Law , Indiana University School of of Law, Indianapolis, "One Turn of the Wheel: Andrew Jackson and the Modern Constitution." Oxford Centre for Criminology: Susanne Karstedt, Al Quaida is not a Network but an Ideology: Global Social Movements and Local Terror Villanova University Law: Marc Galanter, University of Wisconsin Law School.
University of Michigan Law & Economics: Jesse Fried, UC-Berkeley, The Vulnerability of Common Shareholders in VC-Backed Firms University of Minnesota Public Law Workshop: Regina Austin, University of Pennsylvania Law School, Article: Law-Genre Documentaries and Visual Legal Advocacy Brooklyn Law School: Kimberly Yuracko, Northwestern University School of Law, Trait Discrimination as Race Discrimination: An Argument About Assimilation Boston University Law: David Lyons, "Rights and Recognition" Fordham University Law: Rachel Moran, Robert D. & Leslie-Kay Raven Professor of Law, University of California at Berkeley (Bacon-Kilkenny Distinguished Visiting Professor, Fordham University School of Law, Fall 2005), "Of Doubt and Diversity: The Future of Affirmative Action in Higher Education" Florida State University Law: Paul Rubin, Emory University School of Law. American University, The First Annual Distinguished Lecture on Intellectual Property: Pamela Samuelson, UC Berkeley, “Copyright and Consumer Protection” London Institute of Philosophy Conference and Seminar Series: Lizzie Fricker (Oxford), Testimony and Epistemic Authority British Institute of Human Rights, London: Michael Drolet (Oxford), Foundations and Anti-Foundations: Quentin Skinner and Jacques Derrida on Power and the State NYU Colloquium in Law, Philosophy, and Political Theory: Elizabeth Harman - Reading # 9 - November 3rd, 2005 Elizabeth Harman, The Mistake in "I'll Be Glad I Did It" Reasoning: The Significance of Future Desires & Sacred Mountains and Beloved Fetuses: Can Loving or Worshipping Something Give It Moral Status? Loyola Law School, Los Angeles: John T. Parry, Visiting Professor of Law, Lewis & Clark Law School, "The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees" Oxford Public International Law Discussion Group: Dr Rosalie Balkin, Diplomatic conference on the revision of the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Treaties Oxford Institute of European and Comparative Law: Professor Javier Lete Achirica, The Regulation of Unfair Contract Terms in Spanish Law. Oxford Centre for Socio-Legal Studies & Public Interest Law Programme: Daniel Machover and Kate Maynard, The recent attempt by Metropolitan Police to arrest the Israeli General, Doron Almog, at Heathrow Airport for grave breach of the Fourth Geneva Convention 1949, in the Occupied Territories of West Bank and Gaza University College London, Faculty of Law: Dr Jorge Fedtke (UCL), ‘Identity Cards and Data Protection: Security Interests and Individual Freedom in Times of Crisis’ University of Pennsylvania Philosophy: Michele Moody-Adams, Cornell University, What's So Special About Academic Freedom? Vanderbilt Law: Christopher Yoo, Vanderbilt Law School, "Copyright and the Theory of Impure Public Goods" Yale Legal Theory Workshop: Peyton Young, Johns Hopkins University (Economics), The Power of Norms
University of Mississippi Law: The Americans with Disabilities Act at 15: Past, Present, and Future. Participants include Peter Blanck, Kaaryn Gustafson, Ann Hubbard, Miranda McGowan, Camile Nelson, Michael Stein, and Michael Waterstone. Boston College Law: Adam J. Hirsch, William and Catherine VanDercreek Professor of Law, Florida State University College of Law, Visiting Professor of Law, Boston College Law School. Thomas Jefferson Law: Patent Law Symposium. Ohio State Legal History: Scott D. Gerber, Ohio State, The Origins of an Independent Judiciary: A Study in Early American Constitutional Development, 1606-1787 UCLA Law: Kirk Stark, UCLA School of Law. University of Pennsylvania Philosophy: Michele Moody-Adams, Cornell University, Arguing with the Past. University of Texas Law: Samuel Issacharoff, NYU School of Law, "Backdoor Federalization: Grappling with the Risk to the Rest of the Country" William Mitchell Law: Juvenile Justice Symposium Legal Theory Lexicon: Deontology
What Rights and Duties Do We Have? The idea that some actions are wrong and therefore forbidden has a strong intuitive appeal. And we can easily generate a list of action types that are at least ceteris paribus wrongful: telling lies, breaking promises, intentionally killing or injuring an innocent person, stealing, and so forth. For some purposes, a simple list of wrongs may be sufficient. But philosophers and legal theorists are unlikely to be satisfied with a list. Why not? Because the content of the list is likely to become controversial. Lying belongs on the list, but what about the failure to make a full disclosure to a stranger in an arms length commercial transaction? Battery is on the list, but should the exception for self-defense be extended to defense of property? So what method or principle allows us to identify the list of duties, rights, and permissions that would provide the content of a fully specified deontological moral theory? One possibility is that we would identify the list by appeal to our sense of what is right and wrong. Let's give that sense a fancy name: call it "moral intuition." One possible method for identifying the content of a deontological moral theory would be to consult our moral intuitions about particular cases. But objections to this method are likely to arise immediately. For example, my intuition may not agree with your intuition. What then? Even if I consult only my own intuition, I may come to see that my intuitions about particular cases are not consistent at the level of principle. My intuition makes an exception for lies told to instructors as excuses for turning in late papers, but not for lies told to friends as excuses for extreme lateness. Raw moral intuitions might be refined through a technique suggested by the philosopher John Rawls--the method of reflective equilibrium. We might aim to order our raw moral intuitions by positing some general principles that would explain and unify our considered judgments about particular cases. Once we have a set of general principles, it may turn out that some of our considered judgments about particular cases need to be revised. In other cases, a general principle may conflict with a considered judgment about a particular case that we hold very firmly. In such a case, we may wish to modify our general principles. If we work at it, we might eventually reach a point where our revised general principles are in agreement with our revised judgments about particular cases. Rawls call this state "reflective equilibrium." The same procedure might be used collectively to resolve conflicts between the judgments of different individuals; Norman Daniels call this interpersonal use of reflective equilibrium, "wide reflective equilibrium." Kant Reflective equilibrium is one way to specify the content of a deontological moral theory. The German philosopher Immanuel Kant provides another. Before I proceed any further, I want to make it clear that what I am about to say does not provide anything close to even a basic introduction to Kant's moral philosophy. That would take a series of several Legal Theory Lexicon posts. Nonetheless, we can get a glimpse of one of Kant's most important ideas, the categorical imperative. Kant believed that duty was the central moral idea, and he recognized the problem of specifying duty. Kant had a particularly deep and interesting solution to that problem which begins with the idea of a good will: "Nothing can possibly be conceived in the world or out of it that can be called good without qualification except a good will." And a good will is a will that aims for the good and not merely for the objects of desire and inclination. If we act on the basis of a hypothetical imperative (if I want X, then I should do Y), we act on the basis of desire and inclination--"heteronomously" in Kant's terminology. In order to aim for the right, we must act on the basis of a categorical imperative, that is, on the basis of a reason or principle that does not include a desire or inclination. (In Kant's terminology, this would be acting "autonomously.") So what would a categorical imperative look like? Kant's answer to this question is stunningly brilliant--one of the most awesome moves in the history of philosophy. Kant suggested that one could act on the basis of a categorical imperative by consulting what he saw as three equivalent formulas:
The Formula of the End Itself: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end." The Formula of the Kingdom of Ends: "So act as if you were through your maxims a law-making member of a kingdom of ends." O'Neill focused on the formula of the end itself, so let me say just a few words about the formula of the law of nature by giving an example. Suppose you are deciding whether to tell a lie to a friend to get out of a lunch date. You first ask yourself, "What is the maxim (or principle) of my action?" Suppose the answer is "Lie when convenient!" Now, you imagine that if you were to lie to your friend the principle upon which you acted would become a universal law of nature--everyone would one lie when it was convenient. Could or would you do this? Arguably not, for two reasons. First, if everyone were to lie whenever it was convenient, human communication might become impossible, because no one could be trusted. The maxim--lie whenever convenient--has a contradiction in conception, because the lie would never be believed in the possible world in which the maxim of your action was a universal law of nature. Second, if one can imagine a world in which everyone lies when convenient, you might not be willing to lie on this occasion if the result of your action was that the maxim--lie whenever convenient--were to become a universal law of nature as a result. You might not want others to lie to you when they thought it was convenient--we can call this a contradiction in the will. Of course, my analysis of this example has been very sketchy and crude, but I hope that I have done enough to give you the general idea. Some Objections to Deontology All of the main approaches to moral theory are controversial, and because the debates have been raging for centuries, the arguments are now enormously complex. So I am going to give two very simple objections to deontology, with the warning that the current state of play on these objections is now so complex and ramified that you really must be a specialist to give even a rough summary.
The Rigor Objection. The second objection begins with the assumption that deontology does produce determinate answers to particular questions of morality, but argues that the answers are implausible, because they are too demanding or inflexible. Consequentialist critics of deontology argue that absolute rights, duties, and permissions can lead to consequences that would not be morally acceptable. One famous hypothetical, based on Kant's discussion of lying, imagines that you are in Germany before World War II and a Nazi has come to your door and inquired whether you have seen a Jew who has escaped. If there is an absolute moral duty to tell the truth, then you are not permitted to lie in response, but telling a lie may be the only way to save the life of an innocent person. Surely, the consequentialist argues, telling the lie is not only morally permissible, it is morally required. Deontologists can try to escape from examples like these in a variety of ways. For example, the deontologist might simply argue that there is no duty to tell the truth to evil doers who will use the truth for evil purposes. Or the deontologist might argue that this is a case which duties conflicts, and that some higher order principle favors the duty to protect the innocent person from evil over the duty to tell the truth. Or the deontologist might allow that duties can be overridden by consequences in some circumtances. Some deontologists may bite the bullet and argue that one is required to tell the truth, even if the consequences are horrific. Links Saturday, October 29, 2005
Saturday Calendar
Legal Theory Bookworm The Legal Theory Bookworm recommends America's Constitution : A Biography by Akhil Reed Amar. Here's a review by Scott Turow:
Download of the Week The Download of the Week is Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change by Ronen Avraham. Here is the abstract:
Welcome to the Blogosphere . . . to Right Reason, with Roger Kimball, Edward Feser, John Kekes, Roger Scruton, Graeme Hunter, Rob Koons, Francis Beckwith, Chris Tollefsen, and many others. Friday, October 28, 2005
Friday Calendar
University of Chicago Legal Forum: Symposium, Life and Law: Definitions and Decisionmaking. Fred Schauer will be giving the keynote address. Georgetown International Human Rights Colloquium: Allison Marston Danner, Vanderbilt University School of Law, "When Courts Make Law: How International Criminal Tribunals Recast the Laws of War" William Mitchell Symposium: Special Tactics for a Secret War
New. St. John’s University School of Law: Edward J. Imwinkelried, The Alienability of Evidentiary Privileges: Of Property and Evidence, Burden and Benefit, Hearsay and Privilege. Announcement: Values in Public Life at the Heytrop Institute
Request for Proposals: AALS Workshop on Intellectual Property
Conference Announcement: Impartiality and Partiality in Ethics at Reading
Book Announcement: The Judicialization of Politics in Latin American
Thursday, October 27, 2005
Conference Announcement: The Chief Justice & the Institutional Judiciary at Penn
Miers Withdraws Here's an excerpt from the New York Times story:
Thursday Calendar
Oxford Jurisprudence Discussion Group: Pavlos Eleftheriadis, Rights in Deliberation Stanford Law & Economics: Ian Ayres (Yale Law School), "An Option Theory of Legal Entitlements" University of Minnesota Public Law Workshop: Myron Orfield, University of Minnesota Law School, "The Minneapolis Desegregation Settlement" University of Michigan Law & Economics: Sean Griffith, Connecticut, Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies Brooklyn Law School: Susan N. Herman, Brooklyn Law School, The Patriot Act and the Submajoritarian Fourth Amendment. Fordham University School of Law: Linda C. McClain, Rivkin Radler Distinguished Professor of Law, Hofstra University School of Law, and James E. Fleming, Professor of Law, Fordham University School of Law, "Constitutionalism, Judicial Review, and Progressive Change". NYU Colloquium in Law, Philosophy, and Political Theory: Tommie Shelby, Black Solidarity After Black Power. Boston University School of Law: Eric Blumenson (Suffolk), "The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court". Here is the abstract:
Forum for European Philosophy (Londong): Matt Cavanagh (IPPR), Sen and Williams: Consequentialism and Public Policy Oxford Public International Law Discussion Group: Anthony Carty, The Limits of Institutionalism and Pragmatism in International Law - Any Other Way Forward? Oxford Institute of European and Comparative Law: Matthias Mahlmann, A New War of Religions? Problems and Prospects of Religious Tolerance University College, London: Charles Mitchell, "Equitable Rights and Wrongs" Vanderbilt Law: Glynn Lunney, Tulane University Law School, "The Law, Economics, and Morality of File Sharing" Vanderbilt Law: John Yoo, UC-Berkeley, Boalt Hall School of Law, "Force and Institutions" Wednesday, October 26, 2005
Wednesday Calendar
Northwestern Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University, "Crossing the Punitive-Compensatory Divide" NYU Legal History: William Nelson, Weinfeld Professor of Law, NYU School of Law “The Common Law in Colonial America,” part II. Loyola Law School, Los Angeles: Peter Oh, Assistant Professor of Law, William Mitchell College of Law, "The Dutch Auction Myth" Oxford Clarendon Law Lectures: Stephen Cretney, Gay marriage, constitutional reform, social policy and democracy New. University of Toronto James Hausman Tax Law and Policy Workshop Series: Kirk J. Stark (UCLA), Time Consistency and the Choice of Tax Base. (Thanks to Paul Caron!) Lobel on Work Law Orly Lobel (University of San Diego) has posted The Four Pillars of Work Law (Michigan Law Review, 2006) on SSRN. Here is the abstract:
Stras on Judicial Retirement David Stras has posted The Incentives Approach to Judicial Retirement (Minnesota Law Review, Vol. 90, 2006) on SSRN. Here is the abstract:
Chesney on International Detainee Transfers Robert Chesney (Wake Forest University - School of Law) has posted Leaving Guantanamo: The Law of International Detainee Transfers (University of Richmond Law Review, 2006) on SSRN. Here is the abstract:
Avraham on Pain-and-Suffering Damages Ronen Avraham (Northwestern University - School of Law) has posted Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change (Northwestern University Law Review, Vol. 100, Fall 2005) on SSRN. Here is the abstract:
Barnes on Spyware Wayne Barnes (Texas Wesleyan University - School of Law) has posted Rethinking Spyware: Questioning the Propriety of Contractual Consent to Online Surveillance (UC Davis Law Review, Vol. 39, 2006) on SSRN. Here is the abstract:
Call for Papers: Perspectives on Evil and Human Wickedness
Book Announcement: The Jewish Social Contract by Novak
Tuesday, October 25, 2005
McAdams on Special Prosecutors Over at the University of Chicago Law Schools, "The Faculty Blog," Richard McAdams has a post entitled The Special Prosecutor's Authority. Here's a taste:
Tuesday Calendar
Georgetown Law: Jonathan Molot. NYU Colloquium in Law, Economics, and Politics: Robert Inman (The Wharton School - University of Pennsylvania) with Daniel Rubinfeld (University of California, Berkeley and NYU School of Law), "Federal Institutions and the Democratic Transition: Learning from South Africa" & Accompanying tables and appendix Oxford Human Rights Discussion Group: Jeff King and Gregoire Webber, Human Rights and the Role of Courts: A Debate Oxford EC Law Discussion Group: Stephen Weatherill, EC law and sport - will the Oulmers case destroy international football? Oxford Centre for Socio-Legal Studies: HE Yoweri Kaguta Museveni, Developing Nations & Human Rights: A perspective on present day Uganda. Oxford Clarendon Law Lectures: Stephen Cretney, Partnership or Marriage: "Gay, straight, black or white, marriage is a civil right" Vanderbilt Law: Howard Erichson, Seton Hall Law School, "Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation" Lemos on Criminal Punishment and the Commerce Clause Margaret H. Lemos (New York University - School of Law) has posted The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence? (Texas Law Review, Vol. 84, 2006) on SSRN. Here is the abstract:
Call for Papers: Joint Session 2005
Monday, October 24, 2005
Miers Blogging Check out What Should Democrats Do About Miers? Beyond the Popcorn Strategy by Jack Balkin & Why AG Gonzales Will Not Be Nominated to Replace Harriet Miers and What We Might Get Instead by Rick Hasen. Here's a taste from Hasen's post:
Monday Calendar
Columbia Law & Economics: Justin Wolfers, The Wharton School, University of Pennsylvania, "Did Unilateral Divorce Laws Raise Divorce Rates? A Reconciliation and New Results" Boston College School of Law: Dorothy A. Brown, Professor of Law, Alumni Faculty Fellow and Director of the Frances Lewis Law Center, Washington & Lee University School of Law, "The Ownership Society and Private Accounts" George Mason Law: Adam Mossoff, Michigan State University College of Law, “Who Cares What Thomas Jefferson Thought About Patents: Reconsidering the Patent 'Privilege' in Historical Context” Georgetown Environmental Research Workshop: Professor Michael Vandenbergh, Vanderbilt University School of Law, "The Private Life of Public Law" Hofstra Law: Timothy Zick, St. John’s University School of Law, “Property, Place, and Public Discourse” Aristotelian Society (London): Kinch Hoekstra, The End of Philosophy (The Case of Hobbes). NYU Law: Chris Sanchirico. Ohio State Law: Jennifer Wriggins, University of Maine, The Value of Injury: Race, Gender, Torts (1900-1950) University of Alabama Law: Austin Sarat, Amherst College (rescheduled from Aug. 31) What Happened to Mercy? On the Paradox of Sovereign Prerogative in Capital Cases. Oxford Centre for Socio-Legal Studies: Jeanne Flavin, Security, Citizenship and the Law: regulating boundaries: Regulating poor women's reproduction in the United States Oxford Clarendon Law Lectures: Stephen Cretney, Homosexuality: from "odious crime" to the love that dares speak its name UCLA Law: Professor Richard Steinberg, UCLA School of Law, The Formation and Transformation of Trading States in Poor Countries Vanderbilt Law & Business: James Cox, Duke University School of Law, "Empirically Reassessing the Lead Plaintiff Provision: Is the Experiment Paying Off?" University of Texas Law: Bob Rasmussen, Vanderbilt University, Private Debt and the Missing Lever of Corporate Governance Porter on the Economics of Rural Failure Katherine M. Porter (University of Iowa, College of Law) has posted Going Broke the Hard Way: The Economics of Rural Failure (Wisconsin Law Review, 2005) on SSRN. Here is the abstract:
Lewyn on Government's War Against Public Transportation Michael Lewyn (George Washington University Law School) has posted Campaign of Sabotage: Big Government's War Against Public Transportation (Columbia Journal of Environmental Law, Vol. 26, p. 259, 2001) on SSRN. Here is the abstract:
Perry on the Marriage Amendment Michael J. Perry (Emory University School of Law) has posted Why the Federal Marriage Amendment is not Only not Necessary, but a Bad Idea (San Diego Law Review, Vol. 42, pp. 925-34, 2005) on SSRN. Here is the abstract:
Goldberg on E Tax as VAT Daniel S. Goldberg (University of Maryland - School of Law) has posted E Tax: The Flat Tax as an Electronic Credit VAT (Tax Notes, Forthcoming) on SSRN. Here is the abstract:
Sunday, October 23, 2005
Legal Theory Calendar
Boston College School of Law: Dorothy A. Brown, Professor of Law, Alumni Faculty Fellow and Director of the Frances Lewis Law Center, Washington & Lee University School of Law, "The Ownership Society and Private Accounts" George Mason Law: Adam Mossoff, Michigan State University College of Law, “Who Cares What Thomas Jefferson Thought About Patents: Reconsidering the Patent 'Privilege' in Historical Context” Georgetown Environmental Research Workshop: Professor Michael Vandenbergh, Vanderbilt University School of Law, "The Private Life of Public Law" Hofstra Law: Timothy Zick, St. John’s University School of Law, “Property, Place, and Public Discourse” Aristotelian Society (London): Kinch Hoekstra, The End of Philosophy (The Case of Hobbes). NYU Law: Chris Sanchirico. Ohio State Law: Jennifer Wriggins, University of Maine, The Value of Injury: Race, Gender, Torts (1900-1950) University of Alabama Law: Austin Sarat, Amherst College (rescheduled from Aug. 31) What Happened to Mercy? On the Paradox of Sovereign Prerogative in Capital Cases. Oxford Centre for Socio-Legal Studies: Jeanne Flavin, Security, Citizenship and the Law: regulating boundaries: Regulating poor women's reproduction in the United States Oxford Clarendon Law Lectures: Stephen Cretney, Homosexuality: from "odious crime" to the love that dares speak its name UCLA Law: Professor Richard Steinberg, UCLA School of Law, The Formation and Transformation of Trading States in Poor Countries Vanderbilt Law & Business: James Cox, Duke University School of Law, "Empirically Reassessing the Lead Plaintiff Provision: Is the Experiment Paying Off?" University of Texas Law: Bob Rasmussen, Vanderbilt University, Private Debt and the Missing Lever of Corporate Governance
Georgetown Law: Jonathan Molot. NYU Colloquium in Law, Economics, and Politics: Robert Inman (The Wharton School - University of Pennsylvania) with Daniel Rubinfeld (University of California, Berkeley and NYU School of Law), "Federal Institutions and the Democratic Transition: Learning from South Africa" & Accompanying tables and appendix Oxford Human Rights Discussion Group: Jeff King and Gregoire Webber, Human Rights and the Role of Courts: A Debate Oxford EC Law Discussion Group: Stephen Weatherill, EC law and sport - will the Oulmers case destroy international football? Oxford Centre for Socio-Legal Studies: HE Yoweri Kaguta Museveni, Developing Nations & Human Rights: A perspective on present day Uganda. Oxford Clarendon Law Lectures: Stephen Cretney, Partnership or Marriage: "Gay, straight, black or white, marriage is a civil right" Vanderbilt Law: Howard Erichson, Seton Hall Law School, "Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation"
Northwestern Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University, "Crossing the Punitive-Compensatory Divide" NYU Legal History: William Nelson, Weinfeld Professor of Law, NYU School of Law “The Common Law in Colonial America,” part II. Loyola Law School, Los Angeles: Peter Oh, Assistant Professor of Law, William Mitchell College of Law, "The Dutch Auction Myth" Oxford Clarendon Law Lectures: Stephen Cretney, Gay marriage, constitutional reform, social policy and democracy
Oxford Jurisprudence Discussion Group: Pavlos Eleftheriadis, Rights in Deliberation Stanford Law & Economics: Ian Ayres (Yale Law School), "An Option Theory of Legal Entitlements" University of Minnesota Public Law Workshop: Myron Orfield, University of Minnesota Law School, "The Minneapolis Desegregation Settlement" University of Michigan Law & Economics: Sean Griffith, Connecticut, Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies Brooklyn Law School: Susan N. Herman, Brooklyn Law School, The Patriot Act and the Submajoritarian Fourth Amendment. Fordham University School of Law: Linda C. McClain, Rivkin Radler Distinguished Professor of Law, Hofstra University School of Law, and James E. Fleming, Professor of Law, Fordham University School of Law, "Constitutionalism, Judicial Review, and Progressive Change". NYU Colloquium in Law, Philosophy, and Political Theory: Tommie Shelby, Black Solidarity After Black Power. Boston University School of Law: Eric Blumenson (Suffolk), "The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court". Here is the abstract:
Forum for European Philosophy (Londong): Matt Cavanagh (IPPR), Sen and Williams: Consequentialism and Public Policy Oxford Public International Law Discussion Group: Anthony Carty, The Limits of Institutionalism and Pragmatism in International Law - Any Other Way Forward? Oxford Institute of European and Comparative Law: Matthias Mahlmann, A New War of Religions? Problems and Prospects of Religious Tolerance University College, London: Charles Mitchell, "Equitable Rights and Wrongs" Vanderbilt Law: Glynn Lunney, Tulane University Law School, "The Law, Economics, and Morality of File Sharing" Vanderbilt Law: John Yoo, UC-Berkeley, Boalt Hall School of Law, "Force and Institutions"
Georgetown International Human Rights Colloquium: Allison Marston Danner, Vanderbilt University School of Law, "When Courts Make Law: How International Criminal Tribunals Recast the Laws of War" William Mitchell Symposium: Special Tactics for a Secret War
New. St. John’s University School of Law: Edward J. Imwinkelried, The Alienability of Evidentiary Privileges: Of Property and Evidence, Burden and Benefit, Hearsay and Privilege.
Legal Theory Lexicon: Public Reason
Before we get into the background and complications, let's briefly state the core idea of John Rawls's idea of public reason--the version of the idea that has been most influential in legal theory. Rawls argued that public political debate about the constitutional essentials should be conducted on the basis of public reasons. His view was that public reason included common sense, the noncontroversial results of science, and public political values. Nonpublic reasons include the deep and controversial premises of particular moral and religious theorys; for example, the utilitarian idea that only consequences count would be a nonpublic reason. Rawls thought that the Supreme Court's deliberations and opinions about the meaning of the United States Constitution exemplified the idea of public reason. Historical Perspective Where does the idea of public reason come from? Contemporary scholarship sometimes assumes that the notion of public reason was invented out of whole cloth by Rawls, but in fact, it has a long philosophical history. For example, the phrase "public reason" is found in Thomas Hobbes' Leviathan. The section of Leviathan in which this passage appears addresses the question, whose reason should govern the question of whether a purported miracle has occurred?
A second use of the phrase "public reason" is found in Rousseau's Discourse on Political Economy:
Another early use of the phrase "public reason" is found in Thomas Jefferson's Second Inaugural Address:
In What is Enlightenment, Kant introduces the idea of public reason as an answer to a question that might be phrased, "What restrictions on freedom of public discourse will facilitate public enlightenment?" Kant replies:
Here is the point of the history: the idea of public reason is contested, with different theorists offering different conceptions public reason. I am about to give you Rawls's ideas about public reason, but it is very important to realize that Rawls's theory is just one of many, and that new theories of public reason are likely to emerge in the years ahead. Rawls and Public Reason In an early formulation, Rawls explained what he has called the "idea of free public reason":
Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not. Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature. Public Reason and Law How is the idea of public reason relevant to legal theory? One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was recently overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted in Judeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers. One of the interesting features of the idea of public reason is that it provides an argument against what we might call going deep in legal theory. By going deep, I mean making arguments that rely on deep philosophical premises, about ultimate values on the one hand or metaethics and moral psychology on the other. So, for example, it might be argued that utilitarianism (or welfare economics) is an inappropriate source of legal arguments, when the argument relies on a deep utilitarian premises, such as the notion that only utility (e.g. hedonic value or preference satisfaction) is valuable. That premise, it might be argued, goes beyond public reason. The idea of public reason is deeply controversial and the subject of heated debate, but the connections between public reason and law have only recently begun to be explored in depth. Saturday, October 22, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy by Bruce Ackerman. Here's a blurb:
Download of the Week The Download of the Week is Property Rules and Liability Rules, Once Again by Keith Hylton. Here is the abstract:
Friday, October 21, 2005
Confrence Today: Comparative Fiscal Federalism at Michican Courtesy of Paul Caron:
Conference Today: The Future of the Supreme Court
Friday Calendar
Georgetown International Human Rights: David M. Golove, New York University School of Law, "Is the Commander-in-Chief Above the Rule of (International) Law" Ohio State Legal History: John Fabian Witt, Elias Hill's Exodus: Exit and Voice in Reconstruction Constitutionalism. SLAPP Research Workshop: Bertha Amisi, Maxwell School, "Official Mediation in Africa: Patterns of Usage by Civil Society" York on the Miers Team Over at NRO, Byron York has a piece entitled The Miers Support Team: Gloomy and Demoralized. Here is a taste:
Port on the IP Curriculum Kenneth L. Port (William Mitchell College of Law) has posted Essay on Intellectual Property Curricula in the United States (IDEA: The Intellectual Property Law Review, Vol. 46, 2006) on SSRN. Here is the abstract:
Chutkow Dawn M. Chutkow (Cornell University - Government Department) has posted Jurisdiction Stripping: Ideology, Institutional Concerns, and Congressional Control of the Court on SSRN. Here is the abstract:
Bibas on Fifth Amendment Incrementalism Stephanos Bibas (University of Iowa, College of Law) has posted The Rehnquist Court's Fifth Amendment Incrementalism (George Washington Law Review, Vol. 74, 2006) on SSRN. Here is the abstract:
Call for Papers: Psychiatry and the Moral Emotions
Thursday, October 20, 2005
Thursday Calendar
Boston University School of Law: M. Amin Al-Midani (Arab Centre for International Law and Human Rights Education). Richard Abel, University of California at Los Angeles School of Law, Brooklyn Law School: Practicing Immigration Law in Filene’s Basement Fordham University School of Law: Laurence R. Helfer, Professor of Law, Vanderbilt University Law School, "Exiting Treaties" George Mason University School of Law: Don Langevoort, Georgetown Law Center, The Law and Economics of Corporate Cultures NYU Colloquium in Law, Philosophy, and Political Theory: Benedict Kingsbury, The Problem of the Public in Public International Law. Oxford Public International Law Discussion Group: Morten Bergsmo, Between legitimacy and efficacy: challenges in international criminal justice Oxford Institute of European and Comparative Law, Barbara Pozzo, Comparative Law Discussion Group: Problems of Terminology and Translation in European Private Law University College London School of Law: Mavis MacLean (Oxford), ‘Family Law &Family Justice' University of Georgia Law: Julian A. Cook III (Michigan State Univesity), Crumbs From the Master's Table: The Supreme Court, Pro Se Defendants and the Federal Guilty Plea Process University of Michigan Law & Economics: Adam Pritchard, Michigan, The Screening Effect of the Private Securities Litigation Reform Act Yale Law Economics & Organizations: Gary King, Harvard, Government, When Can History be Our Guide? The Dangers of Counterfactual Inference. Vanderbilt University Law: Robert Post, Yale Law School, "Compelled Subsidization of Speech: Johanns v. Livestock Marketing Ass'n" Conference Announcement: Legal Ethics, Conscience, and Utopian Justice
Heise on Educational Adeaquacy Michael Heise (Cornell Law School) has posted Educational Adequacy as Legal Theory: Implications From Equal Educational Opportunity Doctrine on SSRN. Here is the abstract:
Hylton on Property Rules and Liability Rules Keith N. Hylton (Boston University School of Law) has posted Property Rules and Liability Rules, Once Again on SSRN. Here is the abstract:
Fontana on APA Reform David Fontana (Oxford University) has posted Reforming the Administrative Procedure Act: Democracy Index Rulemaking (Fordham Law Review, Vol. 74, No. 81, 2005) on SSRN. Here is the abstract:
Greenberger on Katrina Michael Greenberger (University of Maryland - School of Law) has posted The Role of the Federal Government in Response to Catastrophic Health Emergencies: Lessons Learned from Hurricane Katrina on SSRN. Here is the abstract:
Beerman & Marshall on Presidential Transitions Jack Michael Beermann and William P. Marshall (Boston University School of Law and University of North Carolina at Chapel Hill - School of Law) have posted The Law of Presidential Transitions (North Carolina Law Review, Vol. 84, No. 4) on SSRN. Here is the abstract:
Berg on Minority Religions Thomas Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law) has posted Minority Religions and the Religion Clauses (Washington University Law Quarterly, Vol. 82, No. 3, 2004) on SSRN. Here is the abstract:
Wednesday, October 19, 2005
How Many University of Chicago Law Professors Does It Take . . . Over at the University of Chicago Law School's Faculty Blog, Lior Strahilevitz has a post entitled Chicago's Phantom Professors, criticizing the study by David Horowitz and Joseph Light on ideological bias in law school and journalism faculties. Here's a taste:
Law School Rankings Department And speaking of Paul Caron (see post immediately below), check out his The U.S. News Silly Season. The "Not Legal Theory" Department Many readers of LTB are in the academy & may be interested in the following in Tax Planning of a Visiting Professorship by Myron Hulen. The link was supplied by Paul Caron on his marvelous blog. USA Today on the Miers Vetting Process Joan Biskupic and Toni Locy have a story entitled Miers was vetted by few in administration in USA Today. Here's a taste:
Pocket Part The Yale Law Journal now has an online "companion" called Pocket Part. Check out Of Property and Federalism by Abraham Bell & Gideon Parchomovsky with respones by Robert C. Ellickson and Stephen F. Williams. Here's a taste:
Wednesday Calendar
Oxford Criminology Seminar Series: Ian Loader, Civilizing Security: The Necessary Virtues of the State Villanova University School of Law: Amy Uelmen, Fordham University School of Law, The Evils of "Elasticity": Reflections on the Rhetoric of Professionalism and the Part-Time Paradox in Large Firm Practice McKenna on Publicity & Self Definition Mark McKenna (Saint Louis University) has posted The Right of Publicity and Autonomous Self-Definition on SSRN. Here is the abstract:
Jacobs on Intent-Based Parentage Principles Melanie B. Jacobs (Michigan State University College of Law) has posted Applying Intent-Based Parentage Principles to Nonlegal Lesbian Coparents (Northern Illinois University Law Review, Vol. 25, pp. 433-48, 2005) on SSRN. Here is the abstract:
Carroll on Uniformity Cost in IP Michael W. Carroll (Villanova University School of Law) has posted One for All: The Problem of Uniformity Cost in Intellectual Property Law on SSRN. Here is the abstract:
Resta on Social Change in Congo Odette Boya Resta (International Development Law Organization) has posted Contentious Politics and Social Change in Congo (Security Dialogue, Vol. 32, No. 1, pp. 71-85, March 2001) on SSRN. Here is the abstract:
Tuesday, October 18, 2005
Paulsen and Yoo on a Litmust Test for Miers Michael Stokes Paulsen and John Yoo have an op/ed entitled Make Miers pass a 'litmus test' in the Los Angeles Times. Here is a taste:
Thanks to Rick Hasen for the link! Conference Announcement: Limits of International Law at Georgia
Wilson on Removing Violent Parents Robin Fretwell Wilson (University of Maryland School of Law) has posted Comment: Removing Violent Parents from the Home: A Test Case for the Public Health Approach (Virginia Journal of Social Policy and the Law, Vol. 12, No. 3, 2005) on SSRN. Here is the abstract:
Tuesday Calendar
Lewis & Clark School of Law: Todd Lochner, Assistant Professor, Political Science Department, Lewis & Clark College, Stacking the Deck and Shuffling the Cards: Agency Influence on Prosecutorial Agenda Setting. Loyola Law School, Los Angeles: Tung Yin, Associate Professor of Law, The University of Iowa, College of Law, "Coercion and Terrorism Prosecutions in the Shadow of Military Detention" Ohio State University Law: L. Camille Hébert, Why Don't Reasonable Women Complain of Sexual Harassment? University of Chicago Law & Economics: Dhammika Dharmapala, University of Connecticut, The Just World Bias and Hate Crime Statutes Redding & Mrozoski on Juvenile Justice Decisionmaking Richard E. Redding and Barbara Mrozoski (Villanova University School of Law and Villanova University School of Law) have posted Adjudicatory and Dispositional Decision Making in Juvenile Justice (JUVENILE DELINQUENCY: PREVENTION, ASSESSMENT, AND INTERVENTION, K. Heilbrun, N.E. Goldstein, and R.E. Redding, eds., Oxford University Press, copyright © 2005, Used by permission of Oxford University Press, Inc.) on SSRN. Here is the abstract:
Hatfield & Weiser on Spectrum Property Dale Hatfield and Phil Weiser (University of Colorado at Boulder and University of Colorado at Boulder - School of Law) have posted Property Rights In Spectrum: Taking the Next Step on SSRN. Here is the abstract:
Holbrook on Possession in Patent Law Timothy R. Holbrook (Chicago-Kent College of Law) has posted Possession in Patent Law (SMU Law Review, Vol. 59, No. 1) on SSRN. Here is the abstract:
Trachtman on the WTO Joel P. Trachtman (Tufts University - The Fletcher School) has posted Building the WTO Cathedral on SSRN. Here is the abstract:
Monday, October 17, 2005
Monday Calendar
Georgetown Environmental Research Workshop: Professor Nina Mendelson, University of Michigan School of Law, "Regulatory Beneficiaries and Informal Agency Policymaking" George Washington Intellectual Property: Professor Andrew Chin, University of North Carolina Law School, “Artful Prior Art and the Quality of DNA Patents” Hofstra University School of Law: Miriam Cherry, Cumberland School of Law (Visiting at Hofstra Law School), “Markets for Markets: Origins and Subjects of Information Markets” University of London School of Public Policy: Thomas Pogge (Columbia/ANU), Recognised and Violated by the International Law: the Human Rights of the Global Poor. NYU School of Law, Ricky Revesz. Oxford Centre for Socio-Legal Studies: Christine Parker, Security, Citizenship and the Law: regulating boundaries: Meta-regulating corporate governance: legal accountability for corporate social responsibility UCLA School of Law: Jeffrey Wasserman, RAND Corporation, Legal and Other Perspectives on Public Health Preparedness UCLA School of Law: Goodwin Liu, Boalt Hall School of Law. University of Alabama School of Law: Jonathan Simon of the UC Berkeley, Boalt Hall School of Law, Risk and Reflexivity: What Socio-Legal Studies Adds to the Study of Risk and the Law University of Texas Law: Omri Ben Shahar, University of Michigan, "Boilerplate and Economic Power in Auto Manufacturing Contracts" University of Minnesota Public Law Workshop: Kathryn Abrams, Boalt Hall, Black Judges and Ascriptive Group Identification. Vanderbilt Law & Business: David Denis, Purdue University, Krannet School of Management, "Earnouts A Study of Financial Contracting in Acquisition Agreements" Call for Papers: Are we at War? Global Conflict & Insecurity Post 9/11 at Chapman
Miers & Roe John Fund has an op/ed in the Wall Street Journal entitled Judgment Call. Here is a taste:
Bernstein on Kersch David Bernstein has a short review of Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law by Ken I. Kersch over at the Volokh Conspiracy. Here's a taste:
Gamage on Consideration and Commodification David Gamage has posted Resolving the Paradox of the Consideration Doctrine: The Implications of Inefficient Signaling and of Anti-Commodification Norms on SSRN. Here is the abstract:
Yu on Protecting IP in China Peter K. Yu (Michigan State University College of Law) has posted From Pirates to Partners (Episode Two): Protecting Intellectual Property in Post-WTO China on SSRN. Here is the abstract:
McCann on Cognitive Bias & Heuristics Among Professional Atheletes Michael McCann (Mississippi College School of Law) has posted It's Not About the Money: The Role of Preferences, Cognitive Biases and Heuristics Among Professional Athletes on SSRN. Here is the abstract:
Wesson on State of Mind Marianne Mimi Wesson (University of Colorado at Boulder - School of Law) has posted State of Mind: The Hillmon Case, the McGuffin, and the Supreme Court on SSRN. Here is the abstract:
Trachtman on the WTO Constitution Joel P. Trachtman (Tufts University - The Fletcher School) The WTO Constitution: Toward Tertiary Rules on SSRN. Here is the abstract:
Weiser on a Deregulatory Era Phil Weiser (University of Colorado at Boulder - School of Law) has posted The Relationship of Antitrust and Regulation In A Deregulatory Era (Antritrust Bulletin, Vol. 50, September 2005) on SSRN. Here is the abstract:
Romero on Lawrence v. Texas Victor C. Romero (Pennsylvania State University - The Dickinson School of Law) has posted An "Other" Christian Perspective on Lawrence v. Texas (Journal of Catholic Legal Studies, Vol. 45, No. 1, 2005) on SSRN. Here is the abstract:
Millstone and Subramanian on Oracle v. PeopleSoft David Millstone and Guhan Subramanian (Independent and Harvard Law School) have posted Oracle v. PeopleSoft: A Case Study (Harvard Negotiation Law Review, Forthcoming) on SSRN. Here is the abstract:
Sunday, October 16, 2005
Legal Theory Calendar
Georgetown Environmental Research Workshop: Professor Nina Mendelson, University of Michigan School of Law, "Regulatory Beneficiaries and Informal Agency Policymaking" George Washington Intellectual Property: Professor Andrew Chin, University of North Carolina Law School, “Artful Prior Art and the Quality of DNA Patents” Hofstra University School of Law: Miriam Cherry, Cumberland School of Law (Visiting at Hofstra Law School), “Markets for Markets: Origins and Subjects of Information Markets” University of London School of Public Policy: Thomas Pogge (Columbia/ANU), Recognised and Violated by the International Law: the Human Rights of the Global Poor. NYU School of Law, Ricky Revesz. Oxford Centre for Socio-Legal Studies: Christine Parker, Security, Citizenship and the Law: regulating boundaries: Meta-regulating corporate governance: legal accountability for corporate social responsibility UCLA School of Law: Jeffrey Wasserman, RAND Corporation, Legal and Other Perspectives on Public Health Preparedness UCLA School of Law: Goodwin Liu, Boalt Hall School of Law. University of Alabama School of Law: Jonathan Simon of the UC Berkeley, Boalt Hall School of Law, Risk and Reflexivity: What Socio-Legal Studies Adds to the Study of Risk and the Law University of Texas Law: Omri Ben Shahar, University of Michigan, "Boilerplate and Economic Power in Auto Manufacturing Contracts" University of Minnesota Public Law Workshop: Kathryn Abrams, Boalt Hall, Black Judges and Ascriptive Group Identification. Vanderbilt Law & Business: David Denis, Purdue University, Krannet School of Management, "Earnouts A Study of Financial Contracting in Acquisition Agreements"
Lewis & Clark School of Law: Todd Lochner, Assistant Professor, Political Science Department, Lewis & Clark College, Stacking the Deck and Shuffling the Cards: Agency Influence on Prosecutorial Agenda Setting. Loyola Law School, Los Angeles: Tung Yin, Associate Professor of Law, The University of Iowa, College of Law, "Coercion and Terrorism Prosecutions in the Shadow of Military Detention" Ohio State University Law: L. Camille Hébert, Why Don't Reasonable Women Complain of Sexual Harassment? University of Chicago Law & Economics: Dhammika Dharmapala, University of Connecticut, The Just World Bias and Hate Crime Statutes
Oxford Criminology Seminar Series: Ian Loader, Civilizing Security: The Necessary Virtues of the State Villanova University School of Law: Amy Uelmen, Fordham University School of Law, The Evils of "Elasticity": Reflections on the Rhetoric of Professionalism and the Part-Time Paradox in Large Firm Practice
Boston University School of Law: M. Amin Al-Midani (Arab Centre for International Law and Human Rights Education). Richard Abel, University of California at Los Angeles School of Law, Brooklyn Law School: Practicing Immigration Law in Filene’s Basement Fordham University School of Law: Laurence R. Helfer, Professor of Law, Vanderbilt University Law School, "Exiting Treaties" George Mason University School of Law: Don Langevoort, Georgetown Law Center, The Law and Economics of Corporate Cultures NYU Colloquium in Law, Philosophy, and Political Theory: Benedict Kingsbury, The Problem of the Public in Public International Law. Oxford Public International Law Discussion Group: Morten Bergsmo, Between legitimacy and efficacy: challenges in international criminal justice Oxford Institute of European and Comparative Law, Barbara Pozzo, Comparative Law Discussion Group: Problems of Terminology and Translation in European Private Law University College London School of Law: Mavis MacLean (Oxford), ‘Family Law &Family Justice' University of Georgia Law: Julian A. Cook III (Michigan State Univesity), Crumbs From the Master's Table: The Supreme Court, Pro Se Defendants and the Federal Guilty Plea Process University of Michigan Law & Economics: Adam Pritchard, Michigan, The Screening Effect of the Private Securities Litigation Reform Act Yale Law Economics & Organizations: Gary King, Harvard, Government, When Can History be Our Guide? The Dangers of Counterfactual Inference. Vanderbilt University Law: Robert Post, Yale Law School, "Compelled Subsidization of Speech: Johanns v. Livestock Marketing Ass'n"
Georgetown International Human Rights: David M. Golove, New York University School of Law, "Is the Commander-in-Chief Above the Rule of (International) Law" Ohio State Legal History: John Fabian Witt, Elias Hill's Exodus: Exit and Voice in Reconstruction Constitutionalism. SLAPP Research Workshop: Bertha Amisi, Maxwell School, "Official Mediation in Africa: Patterns of Usage by Civil Society" Legal Theory Lexicon: Utilitarianism
What is “utilitarianism”? Just about every law student has some basic familiarity with the idea of utilitarianism, but unless you were a philosophy or economics major, you may have only a fuzzy notion of what this term really means. In this history of moral philosophy, utilitarianism is strongly associated with two historical figures, Jeremy Bentham and John Stuart Mill. Mill’s views are important and deeply interesting, but they are also extremely difficult to sort out properly. Jeremy Bentham, however, provides a wonderful entrée into the world of utilitarian moral and political philosophy. Law students should be especially fond of Bentham, because with only a bit of exaggeration, we can say than Bentham is the original disgruntled law student. Bentham, you see, was highly displeased with William Blackstone’s lectures on law at Oxford University. The common law, Bentham thought, was a disorganized body of rules. Common-law judges irrationally worshipped historical pedigree and had an immoral disregard of the consequences of legal rules. Legal rules, Bentham believed, should be codified, and the codes should be written so as to produce “the Greatest Good, for the Greatest Number.” That is, we should adopt those legal rules that will maximize utility. Consequentialism Utilitarianism is just one member of a more general family of moral theories, which we might call “consequentialist.” Consequentialism is the view that morality is about consequences of decisions. Utilitarianism is a particular form of consequentialism, but not the only form. Consequentialism is sometimes contrasted to deontology, where deontological moral and political theories maintain that there are moral rules or principles, the violation of which cannot be justified on the ground that good consequences would result. Thus, a consequentialist might believe that one may tell lies, break promises, or injure innocent persons in order to accomplish a greater good, whereas a deontologist might believe that such actions are forbidden--even if good consequences will result. Disambiguating Utilitarianism Let’s pause for a moment. It turns out that “utilitarianism,” the term, refers to many different interrelated theories. “Utilitarianism” is ambiguous, and so we need to specify what we mean by utilitarianism by answering some questions:
Eudaimonistic Utilitarianism. But is the good really just a matter of pleasures and pains? Many of Bentham’s critics argued that not all pleasures are good. Would you really want to live your life carrying around a device that constantly stimulated the pleasure center of your brain and suppressed the pain center? Rather than maximize pleasure, we might instead maximize “happiness”—eudaimonia in ancient Greek. Happiness may be related to pleasure, but it includes more abstract satisfactions. Climbing a mountain may involve much more pain than pleasure, but this activity may still contribute to the happiness of the climber. Preference Satisfaction Utilitarianism. But if happiness seems a better candidate for “good” than pleasure, there are difficulties with the proposition that the law should maximize “happiness.” Happiness is notoriously difficult to define, and different persons have different views about what makes for a happy life. Moreover, happiness, like pleasure, is difficult to measure directly. For these reasons and others, some utilitarian theorists (especially economists) substitute “preference” for happiness as the “good” to be maximized. Preferences can be measured in a variety of ways. For example, we can ask individuals to simply rank order their preferences among various states of affairs, giving us an ordinal utility function for the individual. Economists have devised a variety of techniques for translating these rank orderings (1st best, 2nd best, etc.) into numerical values. Thus, we can construct a cardinal utility function for an individual. Because preference-satisfaction is measurable, most economists use a preference-based conception of utility. And because of the influence of economics on legal theory, this form of utilitarianism has had the greatest impact on contemporary legal theory as well. Scope of Decision So let’s assume we have a working conception of utility. Our next question is: What exactly is the decision that is supposed to maximize utility? Is each individual action required to maximize utility? Or is it general rules that we are concerned with? Or principles? Or something else? I am going to call this question, the scope of decision question. Different forms of utilitarianism give different answers to the scope of decision question. Let’s take a quick look at some of the possibilities:
Action B has a 90% chance of producing a utility of 0, and a 10% chance of producing a utility of 100. Since .9*0 +.1*100 = 10, the expected utility of action A is 10. And since 10 > 5, action A has the greater expected utility. Of course, it may turn out that action B produces a utility of zero, but if what counts is expected utility, then this ex post fact is irrelevant to the moral evaluation of action A.
The Self-Defeating Objection Another objection is that utilitarianism may be self-defeating. Suppose that everyone tried to deliberate as a utilitarian. It might turn out that nonetheless they would make decisions that led to bad consequences. For example, some people may be extremely bad at predicting the consequences of their actions. Others may systematically overestimate their own utilities while systematically underestimating those of others. One answer to this objection is famously associated with the British moral philosopher R.M. Hare. Hare proposed a two-level theory of morality. Utilitarianism, Hare argued, operates at the level of detached moral theorizing. Ultimately, an action is deemed good or bad based on its utility. But ordinary moral deliberation, Hare continued, operates at a different level. Ordinary folks should deliberate on the basis of moral rules of thumb, such as keep your promises, don’t steal, and don’t enslave your enemies when you vanquish them. As you might guess, there are many criticisms of two-level theories, but you get the general idea. The Impossibility of Interpersonal Utility Comparisons This one gets very complicated, very fast. So let me just state the general idea. Suppose we are trying to add up individual utilities for everyone in society. How do we come up with values that are truly comparable across persons. That is, how do we know that X amount of my pleasure or happiness or preference satisfaction is equal to Y amount of yours? This problem is especially vexing for economists, and one solution is simply to limit the conclusions of economics to cases that involve making everyone better off—hence obviating the need for interpersonal comparisons. The Demandingness Objections The list of objections goes on and on, but let’s do just one more. It is frequently argued that utilitarianism (especially act utilitarianism) is too demanding. Why? Imagine that it is your day off. You have two choices. You can either read a novel or your can work for Oxfam. If you read a novel, you will produce some positive utility—your enjoyment of the novel. But if you worked for Oxfam, you would save 1.7 starving children in the third world from death. Well, of course, you should work for Oxfam. But the problem is that it will always be the case that I could produce more utility for others if I dedicated my time to helping the least fortunate. Utilitarianism seems to require me to work for Oxfam after work and to stay up as late as I possibly can. In fact, I may be able to maximize utility by neglecting my health and family. If this is true, many would find utilitarianism too demanding and hence implausible.
--Normative law and economics usually assumes that the system of legal rules (as opposed to individual actions or ideal moral rules) provide the relevant scope of decision. --Normative law and economics usually assumes that utilities are to be summed—although this issue is rarely addressed in any detail. --Normative law and economics usually assumes that it is expected utilities, rather than actual utilities, that are to be maximized. Links Saturday, October 15, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Advice And Consent: The Politics of Appointing Federal Judges by Lee Epstein and Jeffrey A. Segal. Here is a blurb:
Download of the Week The Download of the Week is The Case for Nietzschean Moral Psychology by Joshua Knobe and Brian Leiter. Here is the abstract:
Garnett on Fund on the Miers Selection Process Rick Garnett responds to John Fund. Here's a taste:
Friday, October 14, 2005
Friday Calendar
Georgetown International Human Rights Colloquium: Michael D. Ramsey, University of San Diego School of Law, "The Law of Nations as a Constitutional Obligation". This should be very interesting. Boston College Law: Robert J. Glennon (University of Arizona, Law). Harvard Law School: Constitutional Law Conference UCLA School of Law: Rachel Barkow, NYU School of Law, "Separation of Powers and the Criminal Law" Fund on the Vetting Process for Miers Check out John Fund'sHow She Slipped Through at the Wall Street Journal. Here's a taste:
Knobe & Leiter on Moral Psychology Joshua Knobe and Brian Leiter (University of North Carolina at Chapel Hill and University of Texas at Austin - School of Law & Department of Philosophy) have posted The Case for Nietzschean Moral Psychology on SSRN. Here is the abstract:
Garrett on Hybrid Democracy Elizabeth Garrett (University of Southern California - Law School) has posted The Promise and Perils of Hybrid Democracy (The Henry Lecture, University of Oklahoma Law School, October 13, 2005) on SSRN. Here is the abstract:
Laurence R. Helfer (Vanderbilt University - School of Law) has posted Collective Management of Copyright and Human Rights: An Uneasy Alliance (COLLECTIVE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS, Daniel J. Gervais, ed., Kluwer Law International, 2006) on SSRN. Here is the abstract:
Gamage on Corrective Taxes in Campaign Finance David Scott Gamage (University of Texas (Austin) School of Law) has posted Taxing Political Donations: The Case for Corrective Taxes in Campaign Finance (Yale Law Journal, Vol. 113, p. 1283, 2004). Here is the abstract:
Wexler on Intelligent Design & the First Amendment Jay Wexler (Boston University - School of Law) has posted Intelligent Design and the First Amendment: A Response (Washington University Law Quarterly, Forthcoming) on SSRN. Here is the abstract:
Geis on Indefinite Contracts George S. Geis (University of Alabama - School of Law) has posted An Embedded Options Theory of Indefinite Contracts (Minnesota Law Review, Vol. 90, 2006) on SSRN. Here is the abstract:
Hahn & Litan on Improving Regulation Robert W. Hahn and Robert E. Litan (AEI-Brookings Joint Center for Regulatory Studies and Ewing Marion Kauffman Foundation) have posted Improving Regulation: Start with the Analysis and Work from There This testimony reviews research from the Joint Center on regulatory impact analyses and provides five recommendations for improving the regulatory process. These recommendations include: making regulatory impact analyses publicly available on the Internet; providing a regulatory impact summary table for each regulatory impact analysis that includes information on costs, benefits, technical information, and whether the regulation is likely to pass a benefit-cost test; establishing an agency or office outside the executive branch to assess independently existing and proposed federal rules' requiring that the head of a regulatory agency balance the benefits and costs of a proposed regulation; and requiring that all regulatory agencies adhere to established principles of economic analysis when doing a regulatory impact analysis. Thursday, October 13, 2005
Political Parties and "Elite" Law School Faculties Paul Caron supplied a link to David Horowitz & Joseph Light, Representation of Political Perspectives in Law and Journalism Faculties asserting that Democrats outnumber Republicans 8:1 on the faculties of 10 elite law schools (and 9 journalism schools). Here is a taste:
Thursday Calendar
NYU Colloquium in Law, Philosophy, and Political Theory: Ronald Dworkin, "Truth and Responsibility" and "Morality as Interpretation." Illinois IPLE & Law & Philosophy Institute: Ekow Yankah, "'You Were Right, and I Was Wrong': A Philosophical Homage to Law and Economics." Boston University School of Law: Gary Lawson, "Originalism as a Legal Enteprise" University College, London, Law Events: Professor Peter Alldridge (Queen Mary, University of London), ‘Thinking about Law and Disability’ University of Michigan Law & Economics: Donald Langevoort, Georgetown, Opening the Black Box of "Corporate Culture" in Law and Economics University of Minnesota Public Law Workshop: Carol Sanger, Columbia Law School, Infant Safe Haven Laws: Legislating in the Culture of Life IP Conference Blog Many thanks and kudos to Michael Madison for IP & IT Conferences, a blog that lists conferences on intellectual property, information technology, and internet related issues. Gervais on Copyright and the Internet Daniel J. Gervais (University of Ottawa - Common Law) has posted Use of Copyright Content on the Internet: Considerations on Excludability and Collective Licensing on SSRN. Here is the abstract:
Outterson on Reparations for Health Care Disparities Kevin Outterson (West Virginia University - College of Law) has posted Tragedy & Remedy: Reparations for Disparities in Black Health on SSRN. Here is the abstract:
Yium on Defining Commercial Speech Matthew J. Yium (Lewis & Clark College) has posted Law School Profits, Politics, and the Promise of Free Speech: Defining Commercial Speech After Nike v. Kasky (Lewis & Clark Law Review, Vol. 9, p. 720, Fall 2005) on SSRN. Here is the abstract:
Amann on External Norms in Constitutional Decision Making Diane Marie Amann (University of California at Davis Law School) has posted Raise the Flag and Let it Talk: On the Use of External Norms in Constitutional Decision Making (International Journal of Constitutional Law, Vol. 2, No. 4, pp. 597-610, October 2004) on SSRN. Here is the abstract:
Wednesday, October 12, 2005
Wednesday Calendar
Northwestern Law & Economics: Robert Daines, Pritzker Professor of Law and Business, Stanford University, "Mandatory Disclosure, Asymmetric Information and Liquidity: The Impact of the 1934 Act" Oxford Organised Crime and Corruption: Organized crime and the State in Spain University College, London, Law Events: Zachary Douglas (UCL) ‘Developments in investment treaty arbitration’ University of Georgia School of Law: Lonnie T. Brown, Jr. (University of Georgia) "Reconsidering the Corporate Attorney-Client Privilege: A Response to the Compelled-Voluntary Waiver Paradox." University of Toronto James Hausman Tax Law and Policy Workshop Series: Brian Arnold (Goodmans LLP) General Anti-Avoidance Rules: A Comparative Perspective. Cohen on Copyright & Users Julie E. Cohen (Georgetown University Law Center) has posted The Place of the User in Copyright Law (Fordham Law Review, Vol. 74, 2005) on SSRN. Here is the abstract:
Kairys on Legislative Intervention in Adjudication David Kairys (Temple University - Beasley School of Law) has posted Legislative Usurpation: The Early Practice and Constitutional Repudiation of Legislative Intervention in Adjudication (University of Missouri-Kansas City Law Review, Vol. 73, No. 4, p. 945-950, 2005) on SSRN. Here is the abstract:
Bagenstos on Disability & Choice Samuel R. Bagenstos (Washington University School of Law) has posted Disability, Life, Death, and Choice (Harvard Journal of Gender & Law, 2006) on SSRN. Here is the abstract:
Amann on Impartiality in International Criminal Justice Diane Marie Amann (University of California at Davis Law School) has posted Saddam Hussein and the Impartiality Deficit in International Criminal Justice on SSRN. Here is the abstract:
Tuesday, October 11, 2005
Tuesday Calendar
Illinois Legal History Program: Peter King (Department of History and Member of the International Centre for Comparative Criminological Research at the Open University, England), "Making Law in Eighteenth and Nineteenth Century England: Shaping and Remaking Justice from the Margins." Georgetown Law: Derek Jinks. Does anyone know the title of his talk? NYU Colloquium on Law, Economics, and Politics: James E. Alt (Harvard University, Government Department) Three Simple Tests of Ferejohn's Accountability Model. USC : Ann Crigler (USC, Political Science Dept. ), Juliet Musso (USC, SPPD), and Christopher Weare (USC, SPPD) "Networks for Civic Engagement?: Neighborhood Councils and Faith Based Organizations in Los Angeles" University of Texas Law: Oren Bracha, "Standing Copyright Law on its Head? The Googlelization of Everything and the Many Faces of Property" William Mitchell Law: Marc Galanter, Lowering the Bar: Lawyer Jokes and Legal Culture. Greenberg on the Doomsday Argument Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted Apocalypse Not Just Now (London Review of Books, Vol. 21, No. 19, July 1999) on SSRN. Here is the abstract:
Weatherall on Private Copying Kimberlee Gai Weatherall (Melbourne Law School, University of Melbourne) has posted A Comment on the Copyright Exceptions Review and Private Copying on SSRN. Here is the abstract:
Leib on Supermajoritarianism & the Criminal Jury Ethan Leib (UC Hastings) has posted Supermajoritarianism and the American Criminal Jury (Hastings Constitutional Law Quarterly) on SSRN. Here is the abstract:
Peerenboom on the Relationship Between Human Rights & the Rule of Law Randall Peerenboom (University of California, Los Angeles - School of Law) has posted Human Rights and Rule of Law: What's the Relationship? (Georgetown Journal of International Law, Vol. 36, 2005) on SSRN. Here is the abstract:
Schwabach on Harry Potter & the Law Aaron Schwabach (Thomas Jefferson School of Law) has posted Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World (Roger Williams University Law Review, 2005) on SSRN. Here is the abstract:
Llewelyn & Tehan on on Agreements with Indigenous Peoples David Llewelyn and Maureen Tehan (University of Melbourne - Faculty of Law and University of Melbourne - Faculty of Law) have posted 'Treaties', 'Agreements', 'Contracts' and Commitments' - What's in a Name? The Legal Force and Meaning of Different Forms of Agreement Making (Balayi: Culture, Law and Colonialism, Vol. 7, pp. 6-40, 2005) on SSRN. Here is the abstract:
Monday, October 10, 2005
In the Supreme Court Archives Check out Justice O’Connor, Midkiff and Kelo: A Short Morality Play in Two Acts by Ben Barros over at PropertyProf Blog. Here's a taste:
Monday Calendar
University of Illinois College of Law: Rolf Wank (University of Bochum), "Latest Developments in Antidiscrimination Law-EC, Germany, and the United States" Columbia Law & Economics: Henry E. Smith, Yale Law School, Moduarity in Contracts: Boilerplate and Information Flow Florida State University College of Law: Nancy McLaughlin (University of Utah Law), Responding to Changed Conditions in the Conservation Easement Context. NYU Law: John Coates. UCLA Law: Professor Richard Sander, UCLA School of Law. University of Alabama School of Law: Bill Henning, University of Alabama, Implementing Private International Conventions through State Law. University of Texas Law: Oren Bar-Gill, NYU, Consumer Misperceptions and Market Reactions: The Case of Competitive Bundling Vanderbilt Law: Jeffrey Coles, Arizona State University, W.P. Carey School of Business, "Boards: Does One Size Fit All?" Conference Announcement: Emotions and Rationality in Moral Philosophy
Call for Papers: Disability & Philosophy
Saunders on Law & Neuroscience Kevin W. Saunders (Michigan State University College of Law) has posted A Disconnect Between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice (Utah Law Review, Vol. 2005, pp. 695-741, 2005) on SSRN. Here is the abstract:
Starnes on Divorce Discourse Cynthia Lee Starnes (Michigan State University-DCL College of Law) has posted Mothers as Suckers: Pity, Partnership, and Divorce Discourse (Iowa Law Review, Vol. 90, pp. 1513-52, April 2005) on SSRN. Here is the abstract:
Brown on Raich George D. Brown (Boston College Law School) has posted Counterrevolution? - National Criminal Law after Raich (Ohio State Law Journal, Vol. 66, No. 5, November 2005) on SSRN. Here is the abstract:
Shvets on Courts and External Credit of Russian Enterprises Julia Shvets (University of Cambridge, Corpus Christi College) has posted Courts, Firms, and Allocation of Credit on SSRN. Here is the abstract:
Sunday, October 09, 2005
Legal Theory Calendar
University of Illinois College of Law: Rolf Wank (University of Bochum), "Latest Developments in Antidiscrimination Law-EC, Germany, and the United States" Columbia Law & Economics: Henry E. Smith, Yale Law School, Moduarity in Contracts: Boilerplate and Information Flow Florida State University College of Law: Nancy McLaughlin (University of Utah Law), Responding to Changed Conditions in the Conservation Easement Context. NYU Law: John Coates. UCLA Law: Professor Richard Sander, UCLA School of Law. University of Alabama School of Law: Bill Henning, University of Alabama, Implementing Private International Conventions through State Law. University of Texas Law: Oren Bar-Gill, NYU, Consumer Misperceptions and Market Reactions: The Case of Competitive Bundling Vanderbilt Law: Jeffrey Coles, Arizona State University, W.P. Carey School of Business, "Boards: Does One Size Fit All?"
Illinois Legal History Program: Peter King (Department of History and Member of the International Centre for Comparative Criminological Research at the Open University, England), "Making Law in Eighteenth and Nineteenth Century England: Shaping and Remaking Justice from the Margins." Georgetown Law: Derek Jinks NYU Colloquium on Law, Economics, and Politics: James E. Alt (Harvard University, Government Department) "Three Simple Tests of Ferejohn's Accountability Model" Three Simple Tests of Ferejohn's Accountability Model. USC : Ann Crigler (USC, Political Science Dept. ), Juliet Musso (USC, SPPD), and Christopher Weare (USC, SPPD) "Networks for Civic Engagement?: Neighborhood Councils and Faith Based Organizations in Los Angeles" University of Texas Law: Oren Bracha, "Standing Copyright Law on its Head? The Googlelization of Everything and the Many Faces of Property" William Mitchell Law: Marc Galanter, Lowering the Bar: Lawyer Jokes and Legal Culture.
Northwestern Law & Economics: Robert Daines, Pritzker Professor of Law and Business, Stanford University, "Mandatory Disclosure, Asymmetric Information and Liquidity: The Impact of the 1934 Act" Oxford Organised Crime and Corruption: Organized crime and the State in Spain University College, London, Law Events: Zachary Douglas (UCL) ‘Developments in investment treaty arbitration’ University of Georgia School of Law: Lonnie T. Brown, Jr. (University of Georgia) "Reconsidering the Corporate Attorney-Client Privilege: A Response to the Compelled-Voluntary Waiver Paradox."
NYU Colloquium in Law, Philosophy, and Political Theory: Ronald Dworkin, "Truth and Responsibility" and "Morality as Interpretation." Illinois IPLE & Law & Philosophy Institute: Ekow Yankah, "'You Were Right, and I Was Wrong': A Philosophical Homage to Law and Economics." Boston University School of Law: Gary Lawson, "Originalism as a Legal Enteprise" University College, London, Law Events: Professor Peter Alldridge (Queen Mary, University of London), ‘Thinking about Law and Disability’ University of Michigan Law & Economics: Donald Langevoort, Georgetown, Opening the Black Box of "Corporate Culture" in Law and Economics University of Minnesota Public Law Workshop: Carol Sanger, Columbia Law School, Infant Safe Haven Laws: Legislating in the Culture of Life
Georgetown International Human Rights Colloquium: Michael D. Ramsey, University of San Diego School of Law, "The Law of Nations as a Constitutional Obligation". This should be very interesting. Boston College Law: Robert J. Glennon (University of Arizona, Law). Harvard Law School: Constitutional Law Conference UCLA School of Law: Rachel Barkow, NYU School of Law, "Separation of Powers and the Criminal Law" Michael Levine on the Politics of Judicial Selection And speaking of Balkinization, check out Michael Levine's Why are Bush's Nominees so Moderate?--an excelent post. Here's a taste:
Welcome to the Blogosphere . . . . . . to Steve Griffin of Tulane, who is now Blogging on Katrina recovery at Balkinization. Check out his What Does it Mean to Rebuild New Orleans? Legal Theory Lexicon: The Prisoner's Dilemma and Game Theory
An Example Ben and Alice have been arrested for robbing Fort Knox and placed in seperate cells. The police make the following offer to each of them. "You may choose to confess or remain silent. If you confess and your accomplice remains silent I will drop all charges against you and use your testimony to ensure that your accomplice gets a heavy sentence. Likewise, if your accomplice confesses while you remain silent, he or she will go free while you get the heavy sentence. If you both confess I get two convictions, but I'll see to it that you both get light sentences. If you both remain silent, I'll have to settle for token sentences on firearms possession charges. If you wish to confess, you must leave a note with the jailer before my return tomorrow morning." This is illustrated by Table One. Ben's moves are read horizontally; Alice's moves read vertically. Each numbered pair (e.g. 5, 0) represents the payoffs for the two players. Ben's payoff is the first number in the pair, and Alice's payoff is the second number. Table One: Example of the Prisoner's Dilemma. ________________________________________Ben __________________________Confess______________Do Not Confess___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| __________Confess___|_____1, 1___________|_____0, 5___________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| _____Alice_____________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ___________Do not___|_____5, 0___________|_____3, 3___________| ___________Confess__|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ Suppose that you are Ben. You might reason as follows. If Alice confesses, then I have two choices. If I confess, I get a light sentence (to which we assign a numerical value of 1). If Alice confesses and I do not confess, then I get the heavy sentence and a payoff of 0. So if Alice confesses, I should confess (1 is better than 0). If Alice does not confess, I again have two choices. If I confess, then I get off completely and a payoff of 5. If I do not confess, we both get light sentences and a payoff of 3. So if Alice does not confess, I should confess (because 5 is better than 3). So, no matter what Alice does, I should confess. Alice will reason the same way, and so both Ben and Alice will confess. In other words, one move in the game (confess) dominates the other move (do not confess) for both players. But both Ben and Alice would be better off if neither confessed. That is, the dominant move (confess) will yield a lower payoff to Ben and Alice (1, 1) than would the alternative move (do not confess), which yields (3, 3). By acting rationally and confessing, both Ben and Alice are worse off than they would be if they both had acted irrationally. The Real World The prisoner's dilemma is not just a theoretical model. Here is an example from Judge Frank Easterbrook's opinion in United States v. Herrera, 70 F.3d 444 (7th Cir. 1995):
Iterated Game As described above, the prisoner's dilemma is a one-shot game. But in the real world, may prisoner's dilemmas involve repeated plays. You can imagine a series of moves, for example:
If you want to get a really good feel for the iterative prisoner's dilemma, go to this website, where you can actually try out various strategies. One more twist. Suppose that this game is finite, i.e. it has a fixed number of moves, e.g. ten. How will Ben and Alex play in the "end game." Ben might reason as follows. If I defect and confess on the tenth move, Alice cannot retaliate on the eleventh move (because there is no eleventh round of play). And Alice might reason the same way, leading both Ben and Alice to confess in the final round of play. But now Ben might think, since it is rational for both of us to defect in the tenth round, I need to rethink my strategy in the ninth round. Since I know that Alice will confess anyway in the tenth round, I might as well confess in the ninth round. But once again, Alice might reason in exactly this same way. Before we know it, both Alice and Ben have decided to defect in the very first round. Conclusion This has been a very basic introduction to the prisoner's dilemma, but I hope that it has been sufficient to get the basic concept across. As a first year law student, you are likely to run into the prisoner's dilemma sooner or later. If you have an interest in this kind of approach to legal theory, I've provided some references to much more sophisticated accounts. Happy modeling! References Here are some links to game theory and prisoner's dilemma resoures on the web: Saturday, October 08, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Congress and the Constitution (Neal Devins and Keith E. Whittington, editors). Here's a description:
Download of the Week The Download of the Week is Rescue Without Law: An Empirical Perspective on the Duty to Rescue by David Hyman. Here is the abstract:
Friday, October 07, 2005
Breyer on His New Book Justice Breyer was interviewed by George Stephanopolouson Breyer's new book, "Active Liberty." Here is a link: http://abcnews.go.com/ThisWeek/. Chandler on Network Theory and the UCC I just got back to my office from a talk by Seth Chandler (Houston, Law) at the Mathematica conference here in Champaign. He gave a brilliant talk on the application of network theory to the UCC. That paper isn't available online, but his earlier paper, The Network Structure of Supreme Court Jurisprudence, can be downloaded from SSRN. Download it while its hot! Friday Calendar
UCLA Law: Dorothy Roberts, Northwestern School of Law, "Privitization and Punishment in the New Age of Reprogenetics". Loyola Law School, Los Angeles: Catherine Rogers, Richard C. Cadwallader Associate Professor of Law, Paul M. Hebert Law Center, Louisiana State University, "The Vocation of the International Arbitrator" Georgetown University International Human Rights Colloquium: Kenneth Anderson, Washington College of Law, American University. SLAPP Research Workshop: Speaker: Professor Lief Carter, Colorado College, "The Good Look: How College Football Referees Construct and Achieve Judicial Impartiality" University of Texas Law: Louise Weinberg, The Supreme Court and the Election of 1860 Vanderbilt Law: Kip Viscusi, Harvard Law School, "Economics of Environmental Improvement" Vanderbilt Law & Behavioral Biology Seminar: Paul Glimcher, New York University, Center for Neural Science, "Neuroeconomics" Citron on VOIP & Minimum Contacts danielle k citron (University of Maryland - School of Law) has posted Minimum Contacts in a Borderless World: Voice over Internet Protocol and the Coming Implosion of Personal Jurisdiction Theory (U.C. Davis Law Review, Vol. 39, No. 4, April 2006). Here is the abstract:
Confernce Announcement: Natural Law at Navarra
Call for Papers: Duke Law Journal Administrative Law Conference
Thursday, October 06, 2005
Hyman on the Duty to Rescue Revised & Moved to the Top of the Blog David Hyman (Illinois) has posted Rescue Without Law: An Empirical Perspective on the Duty to Rescue on SSRN. Here is the abstract:
Thursday Calendar
Yale Law, Economics, and Organizations: Professor Albert Choi, University of Virginia, Economics, Optimal Successor Liability NYU Colloquium in Law, Philosophy, and Political Theory: Thomas Nagel, Secular Philosophy and the Religious Temperament Brooklyn Law School: Elizabeth Chambliss and Denise C. Morgan, New York Law School, hat’s All the Fuss About? Richard Sander and His Critics in the Stanford Law Review Fordham University Law: Suzanne B. Goldberg, Associate Professor of Law, Rutgers Newark, "Constitutional Adjudication and Social Change" Boston University Law: Tamar Frankel. Hofstra Law: Ann Juliano, Villanova Law School, Harassing Women with Power: Contra-Power Harassment”. Stanford Law & Economics: Barry Adler (New York University Law School), "The Law of Last Resort: An Introduction to the Law and Economics of Bankruptcy" University of Michigan Law & Economics: Radhakrishnan Gopalan, Michigan Business School, Large Shareholder Trading and Takeovers: The Disciplinary Role of Voting With Your Feet University of Minnesota Public Law Workshop: Michele Landis Dauber, Stanford Law School, Rights, Entitlements, and Relief in the Great Depression Vanderbilt Law: Joni Hersch, Harvard Law School, "Jury Demands and Trials" Welcome to the Blogosphere . . . . . . to Concurring Opinions, featuring Daniel J. Solove, Kaimipono Wenger, and Nathan Oman. Vandervelde on Capture Lea S. Vandervelde (Iowa) has posted The Role of Captives in the Rule of Capture (Environmental Law, Vol. 35, 2005) on SSRN. Here is the abstract:
Peerenboom on Human Rights in China Randall Peerenboom (University of California, Los Angeles - School of Law) has posted Assessing Human Rights in China: Why the Double Standard? (Cornell International Law Journal, Vol. 38, No. 71, 2005) on SSRN. Here is the abstract:
Greenwood on Corporate Law Metaphors Daniel J.H. Greenwood (S.J. Quinney College of Law-University of Utah) has posted Introduction to the Metaphors of Corporate Law (Seattle Journal for Social Justice, 2005) on SSRN. Here is the abstract:
Wednesday, October 05, 2005
Book Announcement: Mercy on Trial by Sarat
Wednesday Calendar
Northwestern Law & Economics: Mark Geistfeld, Crystal Eastman Professor of Law, New York University, "Economic Analysis in a Rights-Based Conception of Tort Law" Alison LaCroix, Golieb Fellow NYU, "The Authority for Federalism: Madison’s Negative and the Transition from Imperial to Federal Supremacy." Tuesday, October 04, 2005
Symposium Announcement: Law's Quandary at CUA
Tuesday Calendar
Georgetown University Law: Angel Oquendo. Barnett on Miers Check out Randy Barnett's op/ed "Cronyism" from today's Wall Street Journal. Here is a taste:
Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser? Of course, Hamilton also thought that the existence of Senate confirmation would deter the nomination of cronies: Monday, October 03, 2005
Federalist No. 76 In Number 76 of the Federalist Papers, Alexander Hamilton wrote:
Miers's Political Contributions The chart is here. As would be expected for a political lawyer, Miers's donated to campaign committee's for Bush, Hutchinson, and her law firm's PAC. Goldstein's Prediction on Miers Over at Scotus Blog, Tom Goldstein predicts:
Monday Calendar
Georgetown Environmental Research Workhsop: Professor Jonathan Adler, Case Western University School of Law, "Why States Regulate: The Impact of Federal Action on StateRegulatory Choices" Hofstra Law: Edward Hartnett, Seton Hall University School of Law, “Deference, Facial Challenges, and the Comparative Competence of Courts” NYU Law: Heather Gerkin. UCLA Law: Professor Jared Diamond, UCLA Department of Geography. Harriet Miers The AP Reports:
Sunday, October 02, 2005
Legal Theory Calendar
Georgetown Environmental Research Workhsop: Professor Jonathan Adler, Case Western University School of Law, "Why States Regulate: The Impact of Federal Action on StateRegulatory Choices" Hofstra Law: Edward Hartnett, Seton Hall University School of Law, “Deference, Facial Challenges, and the Comparative Competence of Courts” NYU Law: Heather Gerkin. UCLA Law: Professor Jared Diamond, UCLA Department of Geography.
Georgetown University Law: Angel Oquendo.
Alison LaCroix, Golieb Fellow NYU, "The Authority for Federalism: Madison’s Negative and the Transition from Imperial to Federal Supremacy."
Yale Law, Economics, and Organizations: Professor Albert Choi, University of Virginia, Economics, Optimal Successor Liability NYU Colloquium in Law, Philosophy, and Political Theory: Thomas Nagel, Secular Philosophy and the Religious Temperament Brooklyn Law School: Elizabeth Chambliss and Denise C. Morgan, New York Law School, hat’s All the Fuss About? Richard Sander and His Critics in the Stanford Law Review Fordham University Law: Suzanne B. Goldberg, Associate Professor of Law, Rutgers Newark, "Constitutional Adjudication and Social Change" Boston University Law: Tamar Frankel. Hofstra Law: Ann Juliano, Villanova Law School, Harassing Women with Power: Contra-Power Harassment”. Stanford Law & Economics: Barry Adler (New York University Law School), "The Law of Last Resort: An Introduction to the Law and Economics of Bankruptcy" University of Michigan Law & Economics: Radhakrishnan Gopalan, Michigan Business School, Large Shareholder Trading and Takeovers: The Disciplinary Role of Voting With Your Feet University of Minnesota Public Law Workshop: Michele Landis Dauber, Stanford Law School, Rights, Entitlements, and Relief in the Great Depression Vanderbilt Law: Joni Hersch, Harvard Law School, "Jury Demands and Trials"
UCLA Law: Dorothy Roberts, Northwestern School of Law, "Privitization and Punishment in the New Age of Reprogenetics". Loyola Law School, Los Angeles: Catherine Rogers, Richard C. Cadwallader Associate Professor of Law, Paul M. Hebert Law Center, Louisiana State University, "The Vocation of the International Arbitrator" Georgetown University International Human Rights Colloquium: Kenneth Anderson, Washington College of Law, American University. SLAPP Research Workshop: Speaker: Professor Lief Carter, Colorado College, "The Good Look: How College Football Referees Construct and Achieve Judicial Impartiality" University of Texas Law: Louise Weinberg, The Supreme Court and the Election of 1860 Vanderbilt Law: Kip Viscusi, Harvard Law School, "Economics of Environmental Improvement" Vanderbilt Law & Behavioral Biology Seminar: Paul Glimcher, New York University, Center for Neural Science, "Neuroeconomics" Legal Theory Lexicon: The Veil of Ignorance (and the Original Position)
From the Ex Ante Perspective to the Veil of Ignorance Law students quickly learn that law school focuses more about the normative ("Is it a good rule?") than the descriptive ("What is the rule?"). ("Just give me the black letter law!" is a cry in the wilderness!) Once you've learned that lesson, another one quickly follows. (Either it creeps up on you, or perhaps it just hits in one of those glorious a ha moments!) The legal academy (and hopefully your section) is full of different (radically different) perspectives on normative questions about the law. The ex ante/ex post distinction is all about normative perspective. We can look at legal rules ex post (backwards from the present), and ask, "Does this rule provide a fair resolution of this particular controversy?" Of we can look at legal rules ex ante (forward from the present) and ask, "Will the adoption of this rule produce good consequences if applied to similar situations in the future?" The move to the ex ante perspective is the crucial move made by consequentialist legal theories--and in particular, by normative law and economics. But there is another important perspective on legal rules that is not captured by the the distinctin between ex post/ex ante perspective. This alternative perspective is frequently associated with the twentieth century's most important political philosopher, the late John Rawls. Rawls is famous for his book, A Theory of Justice, which argued for two principles of justice (the liberty principle and the difference principle) using a striking thought experiment called "the original position." The basic idea is that principles of justice for the basic structure of society are to be chosen by representative parties behind a veil of ignorance. That is, the representatives are deprived of information about the talents, abilities, and socio-economic status of the parties they represent. Rawls saw the original position as an improved and generalized form of the "state of nature" that Hobbes, Rousseau, and Locke used as the choice situation for the adoption of a social contract. Rawls's basic intuition was that the state of nature allowed morally irrelevant factors--e.g. the strategic advantages of the strong and cunning--to determine the content of the social contract. The point of the veil of ignorance is to filter out these factors, yielding a fair choice situation. Whereas classical social contract theory asks, "What would be chosen in a state of nature?," Rawls asks, "What would be chosen in the original position from behind the veil of ignorance?" Going Behind the Veil, Part One So how do you use the veil of ignorance when doing legal theory? I want to start with a very simple answer to that question (in Part One), then we will introduce some objections and clarifications, and give a more complicated answer (n Part Two). So here goes. "Going behind the veil of ignorance" means performing a thought experiment. You ask yourself: "What legal rule would I choose if I didn't know such and such information." Right away, you see that we must fill in the blank! What information is placed behind the veil of ignorance. Let me give some examples:
(2) The government pays for all lawyers. Some socialist systems provide for this rule. (3) If the plaintiff wins, the defendant pays for both the plaintiff's and the defendant's lawyer, but if the defendant wins, each side pays for its own lawyer. This is the rule that currently prevails under several statutes, e.g. 28 U.S.C. Section 1983. (4) The loser pays for its own lawyer and for the winners lawyer. This is the so-called English rule. Objections The veil of ignorance is a controversial tool. So its worth our while to briefly scan some of the objections to its employment: Back to the Classroom So if you are a theoretically inclined first-year law student, how can you use the veil of ignorance. Here is my suggestion. At least some of the time, when you are reading and thinking about a morally interesting case--one where you say, this case involves questions about fairness--ask yourself the following three questions: (1) ex post, which rule provides the fair resolution of this controversy; (2) ex ante, which rule would produce the best consequences if applied to similar cases in the future, and (3) from behind the veil of ignorance, which rule would I choose if I didn't know whether I was the plaintiff or the defendant? Sometimes, as you begin to answer that third question, you will find yourself interested by the questions as to who is behind the veil of ignorance, what they know, when they decide, and how they deliberate. Spend a few minutes thinking about those questions, and you may find that you have a deeper understanding of the concerns of principle or fairness that are relevant to the case. A cautionary note: The veil of ignorance is controversial. In some classrooms, an attempt to introduce the veil into a classroom discussion will be welcomed; in others, you will draw a withering stare or a dismissive comment. Go with the flow! Saturday, October 01, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Playing by the Rules: A Philosophical Examination of Rule-Based Decision Making in Law and in Life by Fred Schauer. Here's a blurb:
Download of the Week The Download of the Week is Bottom-Up Versus Top-Down Lawmaking by Jeff Rachlinski. Here is the abstract:
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