Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Wednesday, November 30, 2005
Scruton Interview Check out The Joy of Conservatism: An Interview with Roger Scruton (Part I) over at Right Reason. Here's a taste:
Markel on Executing the Innocent Check out Innocents Lost by Dan Markel on Slate. Here's a taste:
Seidman on the Israeli Supreme Court, the Palestinian Uprising, and Administrative Review Guy I. Seidman (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Judicial Administrative Review in Times of Discontent: The Israel Supreme Court and the Palestinian Uprising (Israel Affairs, Forthcoming) on SSRN. Here is the abstract:
Frischmann on Demsetzian Copyright Brett M. Frischmann (Loyola University of Chicago, Law School) has posted Evaluating the Demsetzian Trend in Copyright Law on SSRN. Here is the abstract:
Curran on Comparative Law & Language Vivian Grosswald Curran (University of Pittsburgh - School of Law) has posted Comparative Law and Language (OXFORD HANDBOOK OF COMPARATIVE LAW, Reinhard Zimmermann and Mathias Reimann, eds., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
Tuesday, November 29, 2005
Utset on Time-Inconsistent Misconduct Manuel A. Utset (University of Utah - S.J. Quinney College of Law) has posted A Model of Time-Inconsistent Misconduct: The Case of Lawyer Misconduct (74 Fordham L. Rev. __ (2005) (forthcoming)) on SSRN. Here is the abstract:
Blumm, Dunning, and Reed on Public Trust Michael C. Blumm , Harrison Dunning and Scott W. Reed (Lewis & Clark Law School , University of California, Davis and Stanford Law School) have posted Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794 (Ecology Law Quarterly 461, Vol. 24, No. 3, 1997) on SSRN. Here is the abstract:
Call for Papers: Pramatism in Granada
Monday, November 28, 2005
Hasen on the Future of Election Law Election law guru Rick Hasen has posted No Exit? The Roberts Court and the Future of Election Law on SSRN. Here is the abstract:
Sunday, November 27, 2005
Legal Theory Lexicon: Fact and Value
Hume on Deriving an Is from an Ought The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "is" from an "ought." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:
Conclusion: Therefore, the United States ought to withdraw from Iraq.
Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy. Conclusion: Therefore, the United States ought to withdraw from Iraq. G.E. Moore on the Naturalistic Fallacy The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-called naturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition. The Entanglement of Fact and Value It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what the distinction between thick and thin ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thick ethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?" Anyone who believes there is a sharp line that separates the realm of facts from the realm of values must produce an account of thick ethical terms, because such terms seem to straddle the line. Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law! If thick moral terms establish the entanglement of facts and values, that is only one step towards an adequate account of the fact-value distinction. For the purposes of law students with an interest in legal theory, awareness of the issues is probably sufficient. If you develop a deep interest in the foundations of normative jurisprudence, you will want to pursue these topics in much greater depth. Conclusion Arguments about what the law should be are normative; normative legal theory might be considered a particular branch of political and moral philosophy. So legal theorists need to be aware of the fact/value distinction. As a rule of thumb, be wary of arguments that seem to confuse facts and values or to derives oughts from ises. If you do decide to cross the line, then be aware of the criticisms that may come your way! Saturday, November 26, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Arguing Marbury V. Madison, edited by Mark V. Tushnet. Here is a blurb:
Download of the Week The Download of the Week is James Madison's Celebrated Report of 1800: The Transformation of the Tenth Amendment by Kurt Lash. Here is the abstract:
Friday, November 25, 2005
Friday Calendar
Oxford Centre for Competition Law & Policy: Edward Flippen, US Electric Deregulation after California, Enron, and the Worst Blackout in US History Ristroph on Proportionality as Limit on Government Power Alice Ristroph (University of Utah - S.J. Quinney College of Law) has posted Proportionality as a Principle of Limited Government (Duke Law Journal, Vol. 55, 2005) on SSRN. Here is the abstract:
Nicolas on the Number of Justices on the Supreme Court Peter Nicolas (University of Washington School of Law) has posted Nine, of Course: A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court (New York University Journal of Law & Liberty, Forthcoming) on SSRN. Here is the abstract:
Piomelli on Collaborative Lawyering Ascanio Piomelli (University of California, Hastings College of the Law) has posted The Democratic Roots of Collaborative Lawyering on SSRN. Here is the abstract:
French on the Problem of the Future Susan Fletcher French (University of California, Los Angeles - School of Law) has posted Perpetual Trusts, Conservation Servitudes, and the Problem of the Future on SSRN. Here is the abstract:
Symposium Announcement: International Law & the State of the Constitution at Columbia
Thursday, November 24, 2005
Thursday Calendar
Oxford Public International Law Discussion Group: Thomas Skouteris, 'The New Tribunalism': Liberal Sensibilities in the Age of Adjudication Oxford Financial Law Discussion Group: Professor Niamh Moloney, "The Hedge Fund Challenge as a Test Case for EC Securities Regulation" University College, London, Centre for Law and the Environment and the Journal of Environmental Law: The Hon. Sir Francis Jacobs, ‘The European Court of Justice and the Environment: What Role for the Court in a Global Drama?’ University College, London, Current Legal Problems Lecture: Professor Jeremy Phillips (UCL), ‘How to Win at Monopoly: Applying Game Theory to the Enforcement of Intellectual Property Rights’ Thanksgiving This Thanksgiving, I would like to thank the many teachers and mentors who have enabled and enriched my life as teacher, scholar, and thinker.
Thanks to Congressman Brad Sherman, my best friend in 8th grade, who convinced me to join the Mark Keppel High School Debate Team. Thanks to Jewel Bridges, my high school debate coach, who really had no idea what to do with me. Thanks to Marilyn Young, who played a recording of Larry Tribe in the final round of the college national debate championships. At age 14, when I learned that Tribe was then a young professor at Harvard Law School, I decided that I wanted to be a law professor--a lucky if somewhat improbable dream. Thanks to Mr. Katz, my high school American History teacher, who had 16 and 17 year olds reading classic articles from history and political science about constitutional history. I took it for granted. Thanks to Geoff Goodman, Dennis Winston, and King Schofield, to John DeBross, John Wallen, and Lee Garrison, to Donn Parson, David Zarefsky, James Unger, and Lee Polk, to Jay Hurst and David Kent, and many many others on the "national circuit." I learned so much. Thanks to Rogers Albritton--the best teacher I've ever had. Thanks to Warren Quinn, Gregory Kavka, and Jean Hampton. Warren, Greg, and Jean were extraordinary philosophers, associated with the UCLA philosophy department in the late 70s and early 80s. All three are now gone, long before their times. Each of them encouraged me when I needed encouragement. Thanks to Philippa Foot--I use something I learned from Philippa almost every day of my professional life. Thanks to John Rawls, who was generous beyond all reason. He set the standard to which I aspire. Thanks to Frank Michelman and Lea Brilmayer. First year contracts: Lea taught the first semester; Frank taught the second. Perhaps some of my readers will be able to guess that there was quite a contrast. Ex ante versus ex post, anyone? Thanks to Andy Kaufman, Charles Nesson, Charles Fried, Roberto Unger, Lloyd Weinreb, Louis Kaplow, Arthur Miller, and David Westfall. Most especially, thanks to Steve Marzen, from whom I learned the law. And to Archibald Cox--who single-nandedly provided a window into what was best about legal education in another era. Shiffrin on Bollinger on Academic Freedom Check out Steve Shiffrin's Bollinger, Academic Freedom, and Tolerance on Left2Right. Here's a taste:
Wednesday, November 23, 2005
Wednesday Calendar
Philosophy of Education (London): Mitja Sardoc (IOE), Liberal Civic Education Re-examined Northwestern Law & Economics: Kathy Spier, Professor of Law and Professor of Management and Strategy, Northwestern University, "Strategic Judgment Proofing" University Collgege, London, International Law Association: Dr Matthew Craven, SOAS; Catriona Drew, SOAS; Dr Susan Marks, Cambridge University; Dr Gerry Simpson, LSE, ‘The Empire Strikes Back? Colonialism, empire, self-determination and international law’ Lash on Madison's Tenth Amendment Kurt Lash (Loyola, Los Angeles) has posted James Madison's Celebrated Report of 1800: The Transformation of the Tenth Amendment (forthcoming George Washington Law Review) on SSRN. Here is the abstract:
Lazarus on Deliberative Democracy & Environmental Law Richard James Lazarus (Georgetown University Law Center) has posted Congressional Descent: The Demise of Deliberative Democracy in Environmental Law (Georgetown Law Journal, Vol 94, No. 2, Forthcoming) on SSRN. Here is the abstract:
Call for Papers: "Making Ethics Visible"
Program Announcement: PhD in Information, Communication, and the Social Sciences
Tuesday, November 22, 2005
Tuesday Calendar
NYU Colloquium in Law, Economics & Politics: Richard Pildes (New York University School of Law) with Daryl Levinson (Harvard Law School), "Separation of Parties, Not Powers" Oxford Human Rights Discussion Group: Kate Hofmeyr and Tarunabh Khaitan, Judicial Enforcement of Positive Rights in India and South Africa: A Comparative Perspective Oxford EC Law Discussion Group: Pavlos Eleftheriadis, The Idea of a European Constitution Oxford Intellectual Property Research Centre: Henry Carr, Intellectual Property in the New Millennium: Claims & Shapes: New Boundaries in IP Law Tauber on the Bill of Rights in the Territories Alan Tauber (University of South Carolina) has posted The Empire Forgotten: The Application of the Bill of Rights to U.S. Territories on SSRN. Here is the abstract:
Professional Suicide? Updated and Moved to the Top of the Blog Check out Attack of the Career-Killing Blogs by Robert S. Boynton on Slate. A taste:
Tussey on File Sharing Deborah S. Tussey (Oklahoma City University School of Law) has posted Music at the Edge of Chaos: A Complex Systems Perspective on File Sharing (Loyola University Chicago Law Journal, 2005) on SSRN. Here is the abstract:
Bateup on Constitutional Dialogue Christine Bateup (New York University - School of Law) has posted The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue (71 Brooklyn Law Review, 2006) on SSRN. Here is the abstract:
Lazarus on Natural Laws, Human Nature, and Environmental Law Richard James Lazarus (Georgetown University Law Center) has posted Human Nature, the Laws of Nature, and the Nature of Environmental Law (Virginia Environmental Law Journal, Vol. 24, No. 3, Forthcoming) on SSRN. Here is the abstract:
Epstein & Segal on the Dynamics of Supreme Court Ideology The Washington Post has a nifty op/ed, Changing Room The Court's Dynamics Have a Way of Altering a Justice's Approach to the Law by Lee Epstein and Jeffrey A. Segal
Monday, November 21, 2005
Monday Calendar
Columbia Legal Theory Workshop: Abner Greene of Fordham Law School, Excerpts from "Against Obligation:A Theory of Permeable Sovereignty" Columbia Law & Economics: Louis Kaplow, Harvard Law School, "Taxation of Families" Georgetown Environmental Research Workshop: Professor J.B. Ruhl, Florida State University School of Law, "The Effects of Wetlands Mitigation Banking On Humans--A Case Study of Ecosystem Services Policy Failure" Aristotelian Society, London: Antony Duff, Answering for Crime. If you are interested in criminal law theory, don't miss a chance to hear Duff! Oxford Centre for Socio-Legal Studies: Dr Matthew Gibney, Security, Citizenship and the Law: regulating boundaries: Beyond the bounds of responsibility : Western States and measures to prevent the entry of refugees UCLA Law: Dennis Ventry, Visiting Scholar in Taxation, UCLA School of Law, Program in Business Law & Policy, For Richer, For Poorer: How Tax Policymakers have Protected and Punished American Families, 1913-2005 University of Texas Law: Albert Yoon, Northwestern University, "Offer-of-Judgment Rules and Civil Litigation: An Empirical Study of Automobile Insurance Litigation in the East" Call for Papers: BSET 2006
Sunday, November 20, 2005
Legal Theory Calendar
Columbia Legal Theory Workshop: Abner Greene of Fordham Law School, Excerpts from "Against Obligation:A Theory of Permeable Sovereignty" Columbia Law & Economics: Louis Kaplow, Harvard Law School, "Taxation of Families" Georgetown Environmental Research Workshop: Professor J.B. Ruhl, Florida State University School of Law, "The Effects of Wetlands Mitigation Banking On Humans--A Case Study of Ecosystem Services Policy Failure" Aristotelian Society, London: Antony Duff, Answering for Crime. If you are interested in criminal law theory, don't miss a chance to hear Duff! Oxford Centre for Socio-Legal Studies: Dr Matthew Gibney, Security, Citizenship and the Law: regulating boundaries: Beyond the bounds of responsibility : Western States and measures to prevent the entry of refugees UCLA Law: Dennis Ventry, Visiting Scholar in Taxation, UCLA School of Law, Program in Business Law & Policy, For Richer, For Poorer: How Tax Policymakers have Protected and Punished American Families, 1913-2005 University of Texas Law: Albert Yoon, Northwestern University, "Offer-of-Judgment Rules and Civil Litigation: An Empirical Study of Automobile Insurance Litigation in the East"
NYU Colloquium in Law, Economics & Politics: Richard Pildes (New York University School of Law) with Daryl Levinson (Harvard Law School), "Separation of Parties, Not Powers" Oxford Human Rights Discussion Group: Kate Hofmeyr and Tarunabh Khaitan, Judicial Enforcement of Positive Rights in India and South Africa: A Comparative Perspective Oxford EC Law Discussion Group: Pavlos Eleftheriadis, The Idea of a European Constitution Oxford Intellectual Property Research Centre: Henry Carr, Intellectual Property in the New Millennium: Claims & Shapes: New Boundaries in IP Law
Philosophy of Education (London): Mitja Sardoc (IOE), Liberal Civic Education Re-examined Northwestern Law & Economics: Kathy Spier, Professor of Law and Professor of Management and Strategy, Northwestern University, "Strategic Judgment Proofing" University Collgege, London, International Law Association: Dr Matthew Craven, SOAS; Catriona Drew, SOAS; Dr Susan Marks, Cambridge University; Dr Gerry Simpson, LSE, ‘The Empire Strikes Back? Colonialism, empire, self-determination and international law’
Oxford Public International Law Discussion Group: Thomas Skouteris, 'The New Tribunalism': Liberal Sensibilities in the Age of Adjudication Oxford Financial Law Discussion Group: Professor Niamh Moloney, "The Hedge Fund Challenge as a Test Case for EC Securities Regulation" University College, London, Centre for Law and the Environment and the Journal of Environmental Law: The Hon. Sir Francis Jacobs, ‘The European Court of Justice and the Environment: What Role for the Court in a Global Drama?’ University College, London, Current Legal Problems Lecture: Professor Jeremy Phillips (UCL), ‘How to Win at Monopoly: Applying Game Theory to the Enforcement of Intellectual Property Rights’
Oxford Centre for Competition Law & Policy: Edward Flippen, US Electric Deregulation after California, Enron, and the Worst Blackout in US History Legal Theory Lexicon: Conduct Rules and Decision Rules
Example? Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content. But how can we excuse ignorance of the law without altering the conduct rule? One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the intentional content is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law. Saturday, November 19, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Sandra Day O'Connor : How the First Woman on the Supreme Court Became Its Most Influential Justice by Joan Biskupic. Here's a blurb:
Download of the Week The Download of the Week is Information Asymmetries and the Rights to Exclude by Lior Strahilevitz. Here is the abstract:
Friday, November 18, 2005
Leiter on Hiring Tactics Read Brian Leiter's post A New Hiring Tactic: Reader Reaction Sought. Here is ataste:
Friday Calendar
Washington University: Conference on the Rehnquist Court & the First Amendment Fordlam Law: EXPLORING THE LIMITS: Recent Challenges to the Scope of IP Law. UCLA Law: David M. Driesen, Angela R. Cooney Professor, Syracuse University College of Law, "Regulatory Reform: The New Lochnerism?" Columbia Law School: Conference, Shareholder Democracy: Its Promises and Perils. University of Georgia Law: Jedediah S. Purdy (Duke University), The American Transformation of Waste Doctrine: A Pluralist Interpretation University of Texas Law: Seth Chandler, University of Houston, "The Network Structure of the Law" Villanova Law: Marc Galanter, University of Wisconsin Law School University of Toronto: Conference, The Supreme Court of Canada and the General Anti-Avoidance Rule: Tax Avoidance after Canada Trustco and Mathew National Tax Association (Miami, FL): 98th Annual Conference on Taxation. Lipshaw on "Rational Frogs" Jeff Lipshaw has posted a draft of Reason, Self-Deception and Rational Frogs: Reconciling Comprehension and Responsibility in Law and Business Ethics on SSRN. Here is the abstract:
McGowan on Open Source Check out There's no such thing as free software (And it's a good thing, too) by David McGowan on First Monday. Here's a taste:
Lazarus on Property Rights in the Supreme Court Richard James Lazarus (Georgetown University Law Center) has posted The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court on SSRN. Here is the abstract:
Blumm & Ritchie on Ownership of Wildlife Michael C. Blumm and Lucus Ritchie (Lewis & Clark Law School and Lewis & Clark College - Law School) have posted The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife (Environmental Law, Vol. 35, No. 4, 2005) on SSRN. Here is the abstract:
Jacobi on Medicaid John Jacobi (Seton Hall School of Law) has posted Dangerous Times for Medicaid on SSRN. Here is the abstract:
Conference Announcement: "Too Pure an Air" at Glouster
Book Announcement: Wittgenstein on the Arbitrariness of Grammar by Forster
Thursday, November 17, 2005
Book Announcement: Thurman Arnold by Waller
Thursday Calendar
Oxford Jurisprudence Discussion Group: John Stanton-Ife, Harm and Autonomy NYU Colloquium in Legal, Political and Social Philosophy: Liam Murphy, Morality and the Concept of Law Link fixed! Boston University Law: Daniela Caruso, "Private Law and State-Making in the Age of Globalization". Florida State Law: Tracy Higgins, Fordham University Law School. Georgetown Intellectual Property: Brett Frischmann, Loyola Chicago, Evaluating the Demsetzian Trend in Copyright Law Loyola University Chicago, Intellectual Infrastructure and Intellectual Property. University of London School of Advanced Study: David Owens (School of Advanced Study), Duress, Deception and the Validity of a Promise Loyola Los School, Los Angeles: Peter Blanck, "The Future of the Americans with Disabilities Act" Ohio State Law: Milton C. Regan Jr. (Georgetown), "Eat What You Kill* Oxford Trinity College Law Society: Hugh Laddie, "The Common Law - a system under stress" University College, London, Law Faculty: Professor Bruno de Witte (European University Institute), ‘Promotion and Erosion of Cultural Diversity by European Union Law ’ University of Michigan Law & Economics: James Hines, Jr., Michigan Business School, Value-Added Taxes and International Trades: The Evidence Yale Legal Theory Workshop: Jürgen Habermas, Johann Wolfgang Goethe University (Philosophy). Brooklyn Law School: Eric M. Zolt (UCLA), Inequality and Taxation: Evidence from the Americas University of North Dakota Law, Northern Plains Indian Law Center Speakers Series: Kirsten Matoy Carlson (Michigan), “Does Constitutional Change Matter? Canada’s Recognition of Aboriginal Title.” Patterson on the Methodology Debate in Jurisprudence Dennis Patterson (Rutgers) has posted Notes on the Methodology Debate in Contemporary Jurisprudence: Why Sociologists Might Be Interested on SSRN. Here is the abstract:
Goldberg on Tiered Equal Protection Review Suzanne B. Goldberg (Columbia University - Columbia Law School) has posted Equality Without Tiers (Southern California Law Review, Vol. 77, No. 481, 2004) on SSRN. Here is the abstract:
King on Bargained Punishment and Judicial Oversight Nancy J. King (Vanderbilt University School of Law) has posted Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment (58 Stanford Law Review 293 (2005)) on SSRN. Here is the abstract:
Beckham on Substantial Non-infringing Uses James Brian Beckham (John Marshall Law School) has posted RIAA Survive Substantial Non-infringing Uses? (Virginia Journal of Law & Technology, Vol. 10, No. 4, 2005) on SSRN. Here is the abstract:
Lazarus on Salzman on Rose Richard James Lazarus (Georgetown University Law Center) has posted Crystals and Mud in Nature (Yale Journal of Law and the Humanities, Vol. 17, No. 3, Forthcoming) on SSRN. Here is the abstract:
Wells on the Ownership of Local Churches Catharine P. Wells (Boston College - Law School) has posted Who Owns the Local Church? A Pressing Issue for Dioceses in Bankruptcy (Seton Hall Legislative Journal, Symposium Issue: Bankruptcy in the Religious Non-Profit Context, Vol. 29, No. 2, 2005) on SSRN. Here is the abstract:
Conference Announcement: "Cultural Environmentalism" at Stanford
Conference Announcement: The Rehnquist Court & the First Amendment at Washington University
Wednesday, November 16, 2005
New YLJ The October 2005 issue of the Yale Law Journal can be accessed here. The contents include Fixing Freezeouts by Guhan Subramanian and Of Property and Federalism by Abraham Bell and Gideon Parchomovsky. More MobBlog on Cohen's The Place of the User in Copyright Law The conversation about Julie E. Cohen's article continues at MobBlog. Check out new posts from William Patry, Fred von Lohman (and here), Jim Speta, and Joseph Liu. Posner's Foreword to the Harvard Law Review Supreme Court Issue I've just started to look at it, but this is obviously a must download. Here's the link: http://www.harvardlawreview.org/issues/119/Nov05/PosnerFTX.pdf. Download it while it's hot! Wednesday Calendar
Northwestern Law & Economics: Henry Smith, Professor of Law, Yale University, "Modularity in Contracts: Boilerplate and Information Flow" University College London, Mellon Foundation: Lasse Thomassen (Limerick), The Inclusion of the Other? Habermas on Tolerance University College London, School of Public Policy: Matthew Cramer (Cambridge), Dimensions of Objectivity in Law NYU Legal History: Richard Primus, Visiting Professor, NYU School of Law, "The Riddle of Hiram Revels: Retroactivity and the Civil War" Ohio State Center for Interdisciplinary Law & Policy Studies: Conference, Building Democracy Through Online Citizen Deliberation. Oxford Centre for Criminology: Didier Bigo, European Liberty and Security: What is at stake? University of Georgia Law: Olufunmilayo B. Arewa (Case Western Reserve University), "Piracy," Borrowing and Global Intellectual Property Frameworks: History, Hierarchies and Conceptions of Culture University of Toronto Tax & Law and Economics Series: Edward J. McCaffery University of Southern California, Starving the Beast: The Psychology of Budget Deficits University of Toronto Globalization, Law & Justice Workshop Series: Harry Arthurs, Osgoode Hall Law School, The Role of Global Law Firms in Constructing or Obstructing a Transnational Regime of Labour Law Sachs on the Law Merchant & Cyberspace Stephen E. Sachs has posted From St. Ives to Cyberspace: The Modern Distortion of the Medieval 'Law Merchant' on SSRN. Here is the abstract:
Dodge on Customary International Law as Part of Domestic Law William S. Dodge (University of California - Hastings College of the Law) has posted The Story of The Paquete Habana: Customary International Law as Part of Our Law on SSRN. Here is the abstract:
Berg on Natural Law & Christian Realism Thomas Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law) has posted John Courtney Murray and Reinhold Niebuhr: Natural Law and Christian Realism (Journal of Catholic Social Thought, Vol. 3, 2006) on SSRN. Here is the abstract:
Vasquez on Obligations of Corporations under Inernational Law Carlos Manuel Vazquez (Georgetown University Law Center) has posted Direct vs. Indirect Obligations of Corporations Under International Law (Columbia Journal of Transnational Law, Vol. 43, p. 927, 2005) on SSRN. Here is the abstract:
Vandenbergh on Individuals as Polluters Michael P. Vandenbergh (Vanderbilt University - School of Law) has posted The Individual as Polluter (Environmental Law Reporter, 2005) on SSRN. Here is the abstract:
Danay on Free Expression & P2P Robert Jacob Danay (Government of Canada - Justice Canada) has posted Copyright vs. Free Expression: The Case of Peer-to-Peer File-Sharing of Music in the United Kingdom (International Journal of Communications Law and Policy, Vol. 10, 2005) on SSRN. Here is the abstract:
Stinneford on Subsidiarity & Federalism John F. Stinneford (University of St. Thomas School of Law) has posted Subsidiarity, Federalism and Federal Prosecution of Street Crime (Journal of Catholic Social Thought, Vol. 2, p. 495, 2005) on SSRN. Here is the abstract:
Tuesday, November 15, 2005
MobBlog on Cohen's The Place of the User in Copyright Law Over at the Picker MobBlog, several IP scholars are discussing The Place of the User in Copyright Law by Julie E. Cohen of the Georgetown Law Center. Here is the abstract of Cohen's very interesting article:
Tuesday Calendar
George Mason Law: Josh Wright, George Mason, Measuring the Impact of Slotting Allowances on Consumer Welfare. Georgetown Law: Carrie Menkel Meadow, Georgetown, "What's Fair in Love and War? A Study of Professional Variations in Ethics" University of Colorado Law, The 32nd Annual Austin N. Scott Jr. Memorial Lecture: Phil Weiser, Telecom’s Brave New World. Lewis & Clark Law: Richard Brooks, Associate Professor of Law, Yale Race and Uncertainty. Oxford Intellectual Property Research Centre: Alison Brimelow, Intellectual Property in the New Millennium: Is the IP System Working? Some Observations University College, London, Law Faculty: Colm O'Cinneide (UCL), ‘Poverty and Human Rights: The Law as Tool of Social Change’ University of Chicago Law & Economics: Paul Mahoney, Virginia Law School (with Jianping Mei, Stern School of Business, NYU), Mandatory versus Contractual Disclosure: Evidence from the 1930s Vanderbilt Law: Bob Rasmussen, Vanderbilt Law School, "Empirically Bankrupt" Rosenbury on Endings Marriages Laura Rosenbury (Washington University, St. Louis) has posted Two Ways to End a Marriage: Divorce or Death on SSRN. Here is the abstract:
Hasen on Congressional Power & Felon Disenfranchisement Richard L. Hasen (Loyola Law School (Los Angeles)) has posted The Uncertain Congressional Power to Ban State Felon Disenfranchisement Laws on SSRN. Here is the abstract:
Vasquez on Sosa v. Alvarez-Machain Carlos Manuel Vazquez (Georgetown University Law Center) has posted Sosa v Alvarez-Machain and Human Rights Claims Against Corporations under the Alien Tort Statute on SSRN. Here is the abstract:
Port on Trademark Dilution in Japan Kenneth L. Port (William Mitchell College of Law) has posted Trademark Dilution in Japan on SSRN. Here is the abstract:
Nottage on Form and Substance (Comparatively) and Unfair Contracts Luke R. Nottage (University of Sydney - Faculty of Law) has posted Form and Substance in US, English, New Zealand and Japanese Law: A Framework for Better Comparisons of Developments in the Law of Unfair Contracts (Victoria University of Wellington Law Review, Vol. 26, pp. 247-292, 1996) on SSRN. Here is the abstract:
Conference Announcement: Punishment at Newcastle
Call for Papers: Ethical Aspects of Risk
Monday, November 14, 2005
Monday Calendar
Boston College Law: William H. Simon, Arthur Levitt Professor of Law, Columbia University Law School & William W. and Gertrude H. Saunders Professor of Law, Stanford University School of Law. George Washington IP Speakers Series: Peter P. Swire, Ohio State University, “Security Market: Competitive and Security Incentives for Disclosure of Data” Georgetown Environmental Research Workshop: Jody Freeman, Harvard Law School, "Modular Environmental Regulation". London School of Economics: Doug MacLean (Chapel Hill), Must Environmental Ethics be Anthropocentric? NYU Law: Rochelle Dreyfuss Oxford Centre for Socio-Legal Studies: Barbara Hudson, Security, Citizenship and the Law: regulating boundaries: Justice, community and "risky citizenship" : principles of justice for divided society UCLA Law: Professor Yuen Huo, UCLA, Department of Psychology, Authority Relations in the Context of Diversity: A Social Psychological Perspective University of Alabama Law: Kent Greenfield, Boston College School of Law, Military Recruiting, Law Schools, and the First Amendment University of Minnesota Public Law: Don Herzog, University of Michigan Law School, The Kerr Principle, State Action, and Legal Rights. University of Texas Law: Siva Vaidhyanathan, "The Googlization of Everything" Vanderbilt Law & Business Workshop: Steve Choi, New York University School of Law, "The Market Penalty for Mutual Fund Scandals" Hasday on Intimacy and Economic Exchange Jill Elaine Hasday (Minnesota) has psoted Intimacy and Economic Exchange (forthcoming 119 Harv. L. Rev. Dec. 2005) on SSRN. Here is the abstract:
Strahilevitz on Rights to Exclude Lior Strahilevitz (University of Chicago Law School) has posted Information Asymmetries and the Rights to Exclude (Michigan Law Review, Vol. 104, August 2006) on SSRN. Here is the abstract:
Andand on Dutch Auction IPOs Anita I. Anand (Yale Law School) has posted Is the Dutch Auction IPO a Good Idea? (Stanford Journal of Law, Business and Finance) on SSRN. Here is the abstract:
Cotropia on Patent Claim Interpretation Christopher Anthony Cotropia (Tulane University School of Law) has posted Patent Claim Interpretation Methodologies and Their Claim Scope Paradigms (William & Mary Law Review, Vol. 47, October 2005) on SSRN. Here is the abstract:
Tuerkheimer on Violence Against Pregnant Women Deborah Tuerkheimer (University of Southern Maine - School of Law) has posted Conceptualizing Violence against Pregnant Women (Indiana Law Journal, Vol. 81) on SSRN. Here is the abstract:
Sunday, November 13, 2005
Legal Theory Calendar
Boston College Law: William H. Simon, Arthur Levitt Professor of Law, Columbia University Law School & William W. and Gertrude H. Saunders Professor of Law, Stanford University School of Law. George Washington IP Speakers Series: Peter P. Swire, Ohio State University, “Security Market: Competitive and Security Incentives for Disclosure of Data” Georgetown Environmental Research Workshop: Jody Freeman, Harvard Law School, "Modular Environmental Regulation". London School of Economics: Doug MacLean (Chapel Hill), Must Environmental Ethics be Anthropocentric? NYU Law: Rochelle Dreyfuss Oxford Centre for Socio-Legal Studies: Barbara Hudson, Security, Citizenship and the Law: regulating boundaries: Justice, community and "risky citizenship" : principles of justice for divided society UCLA Law: Professor Yuen Huo, UCLA, Department of Psychology, Authority Relations in the Context of Diversity: A Social Psychological Perspective University of Alabama Law: Kent Greenfield, Boston College School of Law, Military Recruiting, Law Schools, and the First Amendment University of Minnesota Public Law: Don Herzog, University of Michigan Law School, The Kerr Principle, State Action, and Legal Rights. University of Texas Law: Siva Vaidhyanathan, "The Googlization of Everything" Vanderbilt Law & Business Workshop: Steve Choi, New York University School of Law, "The Market Penalty for Mutual Fund Scandals"
George Mason Law: Josh Wright, George Mason, Measuring the Impact of Slotting Allowances on Consumer Welfare. Georgetown Law: Carrie Menkel Meadow, Georgetown, "What's Fair in Love and War? A Study of Professional Variations in Ethics" University of Colorado Law, The 32nd Annual Austin N. Scott Jr. Memorial Lecture: Phil Weiser, Telecom’s Brave New World. Lewis & Clark Law: Richard Brooks, Associate Professor of Law, Yale Race and Uncertainty. Oxford Intellectual Property Research Centre: Alison Brimelow, Intellectual Property in the New Millennium: Is the IP System Working? Some Observations University College, London, Law Faculty: Colm O'Cinneide (UCL), ‘Poverty and Human Rights: The Law as Tool of Social Change’ University of Chicago Law & Economics: Paul Mahoney, Virginia Law School (with Jianping Mei, Stern School of Business, NYU), Mandatory versus Contractual Disclosure: Evidence from the 1930s Vanderbilt Law: Bob Rasmussen, Vanderbilt Law School, "Empirically Bankrupt"
Northwestern Law & Economics: Henry Smith, Professor of Law, Yale University, "Modularity in Contracts: Boilerplate and Information Flow" University College London, Mellon Foundation: Lasse Thomassen (Limerick), The Inclusion of the Other? Habermas on Tolerance University College London, School of Public Policy: Matthew Cramer (Cambridge), Dimensions of Objectivity in Law NYU Legal History: Richard Primus, Visiting Professor, NYU School of Law, "The Riddle of Hiram Revels: Retroactivity and the Civil War" Ohio State Center for Interdisciplinary Law & Policy Studies: Conference, Building Democracy Through Online Citizen Deliberation. Oxford Centre for Criminology: Didier Bigo, European Liberty and Security: What is at stake? University of Georgia Law: Olufunmilayo B. Arewa (Case Western Reserve University), "Piracy," Borrowing and Global Intellectual Property Frameworks: History, Hierarchies and Conceptions of Culture University of Toronto Tax & Law and Economics Series: Edward J. McCaffery University of Southern California, Starving the Beast: The Psychology of Budget Deficits University of Toronto Globalization, Law & Justice Workshop Series: Harry Arthurs, Osgoode Hall Law School, The Role of Global Law Firms in Constructing or Obstructing a Transnational Regime of Labour Law
Oxford Jurisprudence Discussion Group: John Stanton-Ife, Harm and Autonomy NYU Colloquium in Legal, Political and Social Philosophy: Liam Murphy, Morality and the Concept of Law Link fixed! Boston University Law: Daniela Caruso, "Private Law and State-Making in the Age of Globalization". Florida State Law: Tracy Higgins, Fordham University Law School. Georgetown Intellectual Property: Brett Frischmann, Loyola Chicago, Evaluating the Demsetzian Trend in Copyright Law Loyola University Chicago, Intellectual Infrastructure and Intellectual Property. University of London School of Advanced Study: David Owens (School of Advanced Study), Duress, Deception and the Validity of a Promise Loyola Los School, Los Angeles: Peter Blanck, "The Future of the Americans with Disabilities Act" Ohio State Law: Milton C. Regan Jr. (Georgetown), "Eat What You Kill* Oxford Trinity College Law Society: Hugh Laddie, "The Common Law - a system under stress" University College, London, Law Faculty: Professor Bruno de Witte (European University Institute), ‘Promotion and Erosion of Cultural Diversity by European Union Law ’ University of Michigan Law & Economics: James Hines, Jr., Michigan Business School, Value-Added Taxes and International Trades: The Evidence Yale Legal Theory Workshop: Jürgen Habermas, Johann Wolfgang Goethe University (Philosophy). Brooklyn Law School: Eric M. Zolt (UCLA), Inequality and Taxation: Evidence from the Americas University of North Dakota Law, Northern Plains Indian Law Center Speakers Series: Kirsten Matoy Carlson (Michigan), “Does Constitutional Change Matter? Canada’s Recognition of Aboriginal Title.”
Washington University: Conference on the Rehnquist Court & the First Amendment Fordlam Law: EXPLORING THE LIMITS: Recent Challenges to the Scope of IP Law. UCLA Law: David M. Driesen, Angela R. Cooney Professor, Syracuse University College of Law, "Regulatory Reform: The New Lochnerism?" Columbia Law School: Conference, Shareholder Democracy: Its Promises and Perils. University of Georgia Law: Jedediah S. Purdy (Duke University), The American Transformation of Waste Doctrine: A Pluralist Interpretation University of Texas Law: Seth Chandler, University of Houston, "The Network Structure of the Law" Villanova Law: Marc Galanter, University of Wisconsin Law School Legal Theory Lexicon: Virtue Ethics
What is virtue ethics? Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjective form of the Greek word for virtue. In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:
Modern Moral Philosophy Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory. The Virtues What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories. The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous. The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science and theory. The intellectual virtues are initially developed by teaching and mature through experience. A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form. Virtue Ethics and Human Good What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons. And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?" Particularism and Phronesis Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances. Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances. Virtue Politics and Virtue Jurisprudence What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues. What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance. In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues. One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:
Conclusion While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea. If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem! Bibliography
Crisp, Roger (ed.), 1996, How Should One Live? Oxford: Clarendon Press. Crisp, Roger and Michael Slote (eds.), 1997, Virtue Ethics, Oxford: Oxford University Press. Foot, Philippa, 1978, Virtues and Vices, Oxford: Blackwell. Hursthouse, Rosalind, 1999, On Virtue Ethics, Oxford: Oxford University Press. The single best one-volume statement of virtue ethics. Solum, Lawrence B. Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 Metaphilosophy 178 (2003). Statman, D. (ed.), 1997, Virtue Ethics, Edinburgh: Edinburgh University Press.
Ethics Updates Page on Aristotle and Virtue Ethics. Internet Encyclopedia of Philosophy Entry on Virtue Theory Wikipedia Entry on Virtue Ethics. Wikipedia Entry on Virtue Jurisprudence. Online Guide to Ethics and Moral Philosophy: Virtue Ethics Saturday, November 12, 2005
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends The Medical Malpractice Myth by Tom Baker. Here is a description:
Download of the Week Mark Graber of the University of Maryland is one of the superstars at the intersection of political science and law. His work within what is sometimes called the "new institutionalism" has been enormously influential. So I am especially pleased to recommend The Jacksonian Makings of the Taney Court as the Download of the Week. Here is the abstract:
Friday, November 11, 2005
AALS FRC Today, I'm at the AALS FRC (the "meat market") in Washington DC, interviewing candidates for entry-level academic jobs at the University of Illinois College of Law. If you are going through this process, I wish you the best of luck! Friday Calendar
Harvard Public Law Workshop: Bruce Ackerman, Yale Law School, The Failure of the Founding Fathers : Jefferson, Marshall, and the Rise of Presidential Democracy. Ackerman will be discussing his new book--don't miss this if you can attend. Georgetown International Human Rights Colloquium: Laurence R. Helfer, Vanderbilt University School of Law, "Toward a Human Rights Framework for Intellectual Property" Vanderbilt Law & Business: Guhan Subramanian, Harvard University Law School, "Post-Siliconix Freeze-Outs: Theory & Evidence" Villanova Law: Catherine Rogers, Università Commerciale Luigi Bocconi and Louisiana State University Law School. Ben-Shahar & Mikos on Measures of Recovery in Private Law Omri Ben-Shahar and Robert A. Mikos (University of Michigan Law School and University of California, Davis - School of Law) have posted The (Legal) Value of Chance: Distorted Measures of Recovery in Private Law (American Law and Economics Review, Vol. 7 No. 2) on SSRN. Here is the abstract:
Hill on the Economics od Identity Claire A. Hill (University of Minnesota - Twin Cities - School of Law) has posted What the New Economics of Identity has to Say to Legal Scholarship on SSRN. Here is the abstract:
Regan on Teaching Enron Milton C. Regan, Jr. (Georgetown University Law Center) has posted Teaching Enron (Fordham Law Review, Vol. 74, December 2005) on SSRN. Here is the abstract:
Nottage on Civil Procedure Reform in Japan Luke R. Nottage (University of Sydney - Faculty of Law) has posted Civil Procedure Reforms in Japan: The Latest Round (Ritsumeikan University Law Review, Vol. 22, pp. 81-86, 2005) on SSRN. Here is the abstract:
Thursday, November 10, 2005
Thursday Calendar
Oxford Jurisprudence Discussion Group: John Gardner, Simply in VIrtue of Being Human: the Whos and Whys of Human Rights University of Pennsylvania Law: Conference, The Chief Justice and the Institutional Judiciary. Starts today. Boston University Law: John Donohue (Yale). Fordham Law: John C. P. Goldberg, Professor of Law, Vanderbilt University Law School, and Benjamin C. Zipursky, Professor of Law, Fordham University School of Law, "The Gallery of Wrongs". NYU Colloquium in Law, Philosophy & Political Theory: David Dyzenhaus, The Legitimacy of the Rule of Law. Oxford Public International Law Discussion Group: Prof Patricia Birnie, Exploiting the ambiguities of Article 65 of the Law of the Sea Convention: current practice of the International Whaling Convention Stanford Law & Economics: Mark Cohen (Owen Graduate School of Management, Vanderbilt University), "Imperfect Competition in Auto Lending: Subjective Markup, Racial Disparity, and Class Action Litigation" University of Michigan Law & Economics: Lucian Bebchuk, Harvard (Olin Lecturer) The Political Economy of Investor Protection. University of Minnesota Public Law Series: Rick Pildes, New York University Law School, Separation of Parties, Not Powers Vanderbilt Law: Richard Craswell, Stanford Law School, "Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere" Yale Law, Economics & Organizations Workshop: Professor Kevin Davis, New York University, Law, The Role of Nonprofits in the Production of Biolerplate. Sunstein on the Precautionary Principle & the Availability Heuristic Cass R. Sunstein (University of Chicago Law School) has posted The Availability Heuristic, Intuitive Cost-Benefit Analysis, and Climate Change on SSRN. Here is the abatract:
Vasquez on the FSIA Carlos Manuel Vazquez (Georgetown University Law Center) has posted Altmann v. Austria and the Retroactivity of the Foreign Sovereign Immunities Act (Journal of International Criminal Justice, Vol. 3, pp. 207-22, 2005) on SSRN. Here is the abstract:
Trujillo on the State Action Antitrust Examption Elizabeth Trujillo (Florida State University College of Law) has posted State Action Antitrust Exemption Collides with Deregulation: Rehabilitating the Foreseeability Doctrine on SSRN. Here is the abstract:
Winick & Wexler on Therapeutic Jurisprudence in Clinical Education Bruce Winick and David B. Wexler (University of Miami School of Law and University of Arizona - James E. Rogers College of Law) have posted The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic on SSRN. Here is the abstract:
Denning & Cherry on the Five Stages of Submission Grief Brannon Denning & Miriam Cherry (Cumberland School of Law & Cumberland School of Law) have posted The Five Stages of Law Review Submission on SSRN. Here is the abstract:
Wednesday, November 09, 2005
Wednesday Calendar
University College, London, Faculty of Law: Professor James Crawford SC (Cambridge University), ‘Failed States or Failed Ideas of the State?’ University of Alabama Law: Ruth Rubio-Marin, NYU Law Global Faculty/Universidad de Sevilla. University of Georgia Law: David A. Brennen (Mercer University). Cross on the Strategic Political Effects of Procedure Frank B. Cross (University of Texas at Austin - Department of Management Science & Information Systems ) has posted Legal Process, Legal Realism and the Strategic Political Effects of Procedural Rules on SSRN. Here is the abstract:
Pardy on the Holy Grail of Environmental Law Bruce Pardy (Queen's University - Faculty of Law) has posted In Search of the Holy Grail of Environmental Law: A Rule to Solve the Problem (McGill International Journal of Sustainable Development Law & Policy, Vol. 1, p. 29, 2005) on SSRN. Here is the abstract:
Medwed on Post-Conviction Claims of Innocence Daniel S. Medwed (University of Utah - S.J. Quinney College of Law) has posted The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence (Boston University Law Review, Vol. 84, p. 125, 2004). Here is the abstract:
Hsu on New Source Review Shi-Ling Hsu (University of British Columbia - Faculty of Law) has posted The Real Problem with New Source Review on SSRN. Here is the abstract:
Book Announcement: Chasing the Wind by Morag-Levine
Tuesday, November 08, 2005
Tuesday Calendar
Georgetown Law: Rosa Brooks. Ohio State Law: Ruth Colker, The Influence of Amicus Curiae on Judicial Decisions: A Case Study of Justice Sandra Day O'Connor's Opinions in Constitutional Law Cases University of Texas Law: Lonny Hoffman (UT),"Litigating Before Litigation: An Unconventional Look at the Debate Over 'Frivolous' Litigation" Dickinson on Privatization of Foreign Affairs Laura Dickinson (University of Connecticut - School of Law) has posted Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law (William & Mary Law Review, Vol. 47, p. 135, 2005) on SSRN. Here is the abstract:
Graber on the Makings of the Taney Court Mark Graber (University of Maryland - School of Law) has posted The Jacksonian Makings of the Taney Court on SSRN. Here is the abstract:
Sperling on Living Wills and Pregnancy Daniel Sperling (University of Toronto - Faculty of Law) has posted Do Pregnant Women have (Living) Will? (Journal of Health Care Law & Policy, Vol. 8, No. 2, pp. 331-342, 2005) on SSRN. Here is the abstract:
Joo on Corporate Hierarchy & Racial Justice Thomas Wuil Joo (University of California at Davis Law School) has posted Corporate Hierarchy and Racial Justice (forthcoming, 79 St. John's L. Rev. --- (2005)) on SSRN. Here is the abstract:
Book Announcement: Borrowing Constitutional Designs by Skach
Monday, November 07, 2005
Madison on Residency Matching for Physicians Kristin M. Madison (University of Pennsylvania - School of Law) has posted The Residency Match: Competitive Restraints in an Imperfect World (Houston Law Review, Vol. 42, p. 759, 2005) on SSRN. Here is the abstract:
Orenstein on Rule 403 Aviva Orenstein (Indiana University School of Law-Bloomington)has posted Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403 (Cornell Law Review, Vol. 90, p. 1487, 2005) on SSRN. Here is the abstract:
Monday Calendar
Cardozo School of Law: Conference, A Comparative Examination of Hate Speech Protection. Continues today. Florida State Law: Alexandra Klass, William Mitchell College of Law (Markell) Rediscovering the Common Law in the Age of the Federal Regulatory State . Georgetown Environmental Research Workshop: Professor Robert Glicksman, University of Kansas School of Law, "Chief Justice Rehnquist's Impact on Environmental, NaturalResources, and Takings Law" Aristotelian Society (London): Ralph Wedgwood, How we Know what Ought to Be NYU Law: Barry Friedman. Oxford Centre for Socio-Legal Studies: Professor Lucia ZednerSecurity, Citizenship and the Law: regulating boundaries: Securing liberty in the face of terror: reflections from criminal justice. Oxford Human Rights Discussion Group: Graham Gee, Under-Theorization of Judicial Independence and its Impact for the Adjudication of Human Rights Claims UCLA Law: Troy Paredes, UCLA School of Law, On the Decision to Regulate Hedge Funds: The Regulatory Philosophy, Regulatory Style, and Mission of the SEC University of Alabama Law: Philip Oliver, University of Arkansas at Little Rock. University of Texas Law: Teresa Sullivan & Jay Westbrook, "Twenty-First Century Bankruptcy: Two Decades of Evidence About Consumer Debt and The Stigma of Bankruptcy" Vanderbilt Law & Business Series: Ralph Walkling, Drexel University, LeBow College of Business, "Share Repurchase, Executive Options and Wealth Changes to Stockholders and Bondholders" Conference Announcements: Values in Public Life at Heythrop
Superprecedent & the Commerce Clause Check out Using Superprecedent to Save the Commerce Clause by Ben Barros over at Property Prof Blog. Here's a taste:
Sunday, November 06, 2005
Legal Theory Calendar
Cardozo School of Law: Conference, A Comparative Examination of Hate Speech Protection. Continues today. Florida State Law: Alexandra Klass, William Mitchell College of Law (Markell) Rediscovering the Common Law in the Age of the Federal Regulatory State . Georgetown Environmental Research Workshop: Professor Robert Glicksman, University of Kansas School of Law, "Chief Justice Rehnquist's Impact on Environmental, NaturalResources, and Takings Law" Aristotelian Society (London): Ralph Wedgwood, How we Know what Ought to Be NYU Law: Barry Friedman. Oxford Centre for Socio-Legal Studies: Professor Lucia ZednerSecurity, Citizenship and the Law: regulating boundaries: Securing liberty in the face of terror: reflections from criminal justice. Oxford Human Rights Discussion Group: Graham Gee, Under-Theorization of Judicial Independence and its Impact for the Adjudication of Human Rights Claims UCLA Law: Troy Paredes, UCLA School of Law, On the Decision to Regulate Hedge Funds: The Regulatory Philosophy, Regulatory Style, and Mission of the SEC University of Alabama Law: Philip Oliver, University of Arkansas at Little Rock. University of Texas Law: Teresa Sullivan & Jay Westbrook, "Twenty-First Century Bankruptcy: Two Decades of Evidence About Consumer Debt and The Stigma of Bankruptcy" Vanderbilt Law & Business Series: Ralph Walkling, Drexel University, LeBow College of Business, "Share Repurchase, Executive Options and Wealth Changes to Stockholders and Bondholders"
Georgetown Law: Rosa Brooks. Ohio State Law: Ruth Colker, The Influence of Amicus Curiae on Judicial Decisions: A Case Study of Justice Sandra Day O'Connor's Opinions in Constitutional Law Cases University of Texas Law: Lonny Hoffman (UT),"Litigating Before Litigation: An Unconventional Look at the Debate Over 'Frivolous' Litigation"
University College, London, Faculty of Law: Professor James Crawford SC (Cambridge University), ‘Failed States or Failed Ideas of the State?’ University of Alabama Law: Ruth Rubio-Marin, NYU Law Global Faculty/Universidad de Sevilla. University of Georgia Law: David A. Brennen (Mercer University).
Oxford Jurisprudence Discussion Group: John Gardner, Simply in VIrtue of Being Human: the Whos and Whys of Human Rights University of Pennsylvania Law: Conference, The Chief Justice and the Institutional Judiciary. Starts today. Boston University Law: John Donohue (Yale). Fordham Law: John C. P. Goldberg, Professor of Law, Vanderbilt University Law School, and Benjamin C. Zipursky, Professor of Law, Fordham University School of Law, "The Gallery of Wrongs". NYU Colloquium in Law, Philosophy & Political Theory: David Dyzenhaus, The Legitimacy of the Rule of Law. Oxford Public International Law Discussion Group: Prof Patricia Birnie, Exploiting the ambiguities of Article 65 of the Law of the Sea Convention: current practice of the International Whaling Convention Stanford Law & Economics: Mark Cohen (Owen Graduate School of Management, Vanderbilt University), "Imperfect Competition in Auto Lending: Subjective Markup, Racial Disparity, and Class Action Litigation" University of Michigan Law & Economics: Lucian Bebchuk, Harvard (Olin Lecturer) The Political Economy of Investor Protection. University of Minnesota Public Law Series: Rick Pildes, New York University Law School, Separation of Parties, Not Powers Vanderbilt Law: Richard Craswell, Stanford Law School, "Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere" Yale Law, Economics & Organizations Workshop: Professor Kevin Davis, New York University, Law, The Role of Nonprofits in the Production of Biolerplate.
Harvard Public Law Workshop: Bruce Ackerman, Yale Law School, The Failure of the Founding Fathers : Jefferson, Marshall, and the Rise of Presidential Democracy. Ackerman will be discussing his new book--don't miss this if you can attend. Georgetown International Human Rights Colloquium: Laurence R. Helfer, Vanderbilt University School of Law, "Toward a Human Rights Framework for Intellectual Property" Vanderbilt Law & Business: Guhan Subramanian, Harvard University Law School, "Post-Siliconix Freeze-Outs: Theory & Evidence" Villanova Law: Catherine Rogers, Università Commerciale Luigi Bocconi and Louisiana State University Law School. Legal Theory Lexicon 011: Second Best
As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. The Intuitive Idea The intuition behind the idea of the second best is simple. We would like to have the best possible legal system. But sometimes the best legal policies are not in the cards; that is, the best policy may be impractical. Why? In legal theory, one common reason that we cannot adopt the best policy is politics. Given the political forces that operate, the best campaign finance system may be pie in the sky. So we ask the question, of those systems that might be politically feasible, which is the "second best"? Although I've introduced the intuitive idea by talking about "political feasibility," the idea of the second best is more general than that. First-best solutions may be unavailable because of a variety of constraints, of which politics is only one. The intuitive idea of the second best is a bit broader and less technical than the way economists define "second best," so let's turn to that now. The Second Best in Economics Let's move from the intuitive idea of the second best to the origins of that idea in economic theory. The very general idea of the economic theory of the second best can be expressed as follows:
One or two additional points are necessary to complete the technical story.
Second, the second best is usually understood as relative to a constrained variable. We could use the phrase "second best" to refer to the second-best state the system could assume if all the variables were unconstrained, but this is not the way that Lipsey and Lancaster used that phrase. Third, there is an important difference between the way economists understand "second best" and the way the same phrase is understood by noneconomists. What was interesting and powerful about Lipsey and Lancaster's proof is that it produced the counterintuitive result that sometimes when one variable is constrained, the best policy choice will involve moving other variables away from their first-best values. The Second Best and Nonideal Theory The idea of the second best that is used by economists is analogous to a distinction made famous by the political philosopher, John Rawls. Rawls distinguished between two ways of approaching political philosophy, ideal and nonideal theory. In ideal theory, we assume compliance with the normative requirements of our theory. Rawls used the phrase "well-ordered society" to refer to the situation that obtains in ideal theory. In a society that is well ordered by Rawls's principles of justice, citizens actually would be guaranteed a fully adequate scheme of basic liberties and the basic structure would actually work to the advantage of the least well off group in society. In nonideal theory, we relax the assumption that the society is well ordered by the principles of justice. Can you make that very abstract description more concrete? Yes, here is a really good example. In a society that is well-ordered by Rawls's principles of justice, we might assume that if there are local governmental units, they will comply with the restraints imposed by the freedom of speech. But in the real world, local governments might be more susceptible to political pressure to suppress unpopular speech than would be the central government (i.e. the national government in Washington, D.C., in the case of the United States). So, in the real world of nonideal theory, we might be very considered with constraining the jurisdiction and powers of local governments; whereas, this issue may not even arise in the case of ideal theory. Pinpointing the Constrained Variable The notion of the second best and the related idea of nonideal theory get tossed around quite a lot in legal theory, but sometimes these terms are used carelessly or without precision. Whenever you hear or read the term "second best," ask yourself the question, "Which variable is constrained, and why is it constrained?" Because the "second best" is second best relative to a constrained variable, use of the concept of the second best doesn't mean anything unless and until the constrained variable is specified. Moreover, it is sometimes very important to know why the constrained variable is constrained. This is because it is easy to construct an argument for a second-best policy option that uses a double standard with respect to whether variables should be considered to be constrained. Here is a simple example:
The Feasible Choice Set Another way of approaching the general problem revealed by the theory of the second best is via the notion of the feasible choice set. Take all of the possible legal policy options with respect to a particular legal problem. Then lay out a set of well-defined criteria for feasibility. Apply the criteria to the set, sorting the options into the feasible choice set and the infeasible choice set. Practical policy discussion will usually be limited to the options within the feasible choice set, but legal theory is not limited to the practical. Frequently we can learn something important by considering options that are outside the feasible choice set. For example, a rule of strict liability might turn out to be the optimal rule of tort law. It could also turn out that strict liability regimes are politically infeasible--perhaps because the fault-based social norms are very strongly held. But that fact should not preclude legal theorists from examining the merits of strict liability regimes. Not only may such an examination be of intrinsic interest, but the insights gleaned from such an examination may well assist in the evaluation of the options that are within the feasible choice set. The Bottom Line The notion of the second best, the distinction between ideal and nonideal theory, and the idea of the feasible choice set, are all essential tools for a legal theorist. As a first year student, you are likely to encounter these ideas in classroom discussion or in law review articles assigned as ancillary reading. The trick to mastering these concepts and using them effectively is to identify the constrained variable (or the nonideal conditions). Once you've done that, you can move to the next step, which is the question, "What criteria are used to identify the constrained variables?" And if you can answer that question, you are now in a position to respond in an intelligent and sophisticated way to applications of the theory of the second best! Bibliography & Links Saturday, November 05, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends What Roe V. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision edited by Jack M. Balkin. Here's a blurb:
Download of the Week The Download of the Week is "The Right to Judicial Review" by Yuval Eylon and Alon Harel. Here is the abstract:
Friday, November 04, 2005
Alito Central On the University of Michigan Law Library site: here. And the Library of Congress offers this site. Friday Calendar
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 Denno on Post-Freudian Criminal Law Deborah W. Denno (Fordham University School of Law) has posted Criminal Law in a Post-Freudian World (University of Illinois Law Review, pp. 601-774, 2005) on SSRN. Here is the abstract:
Rowe on Universities the Experimental Use Patent Exception Elizabeth A. Rowe (University of Florida - Fredric G. Levin College of Law) has posted The Experimental Use Exception to Patent Infringement: Do Universities Deserve Special Treatment? on SSRN. Here is the abstract:
Binder on the Act of God Defense Denis Binder (Chapman University - School of Law) has posted Act of God? or Act of Man?: A Reappraisal of the Act of God Defense in Tort Law (Review of Litigation, Vol. 15, No. 1, 1996) on SSRN. Here is the abstract:
Perry on Ranking Law Reviews Ronen Perry (University of Haifa - Faculty of Law) has posted The Relative Value of American Law Reviews: A Critical Appraisal of Ranking Methods (Virginia Journal of Law and Technology, Vol. 10, 2005) on SSRN. Here is the abstract:
Sjostrom on Internet IPOs William K. Sjostrom Jr. (Northern Kentucky University - Salmon P. Chase College of Law) has posted Going Public Thorugh and Internet Direct Public Offering: A Sensible Alternative for Small Companies (Florida Law Review, Vol. 53, p. 529, 2001) on SSRN. Here is the abstract:
Wildman on Social Justice Centers Stephanie M. Wildman (Santa Clara University School of Law) has posted Democracy and Social Justice: Founding Centers for Social Justice in Law Schools (Journal of Legal Education, Vol. 55, p. 252,2005) on SSRN. Here is the abstract:
Thursday, November 03, 2005
Thursday Calendar
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 Wednesday, November 02, 2005
Wednesday Calendar
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. Priest on Music Piracy Eric Priest (Harvard Law School) has posted The Future of Music and Film Piracy in China (Berkeley Technology Law Journal, Vol. 21, June 2006) on SSRN. Here is the abstract:
Parry on Modern Torture John T. Parry (University of Pittsburgh School of Law) has posted The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees (Melbourne Journal of International Law, Vol. 6, p. 516, 2005) on SSRN. Here is the abstract:
Two by Steinitz Maya Steinitz (New York University) has two new papers on SSRN:
Blumn on Clean Water & the EPA Michael C. Blumm (Lewis and Clark Law School) has posted Roads Not Taken: EPA vs. Clean Water (Environmental Law, Vol. 33, p. 79, 2003) on SSRN. Here is the abstract:
Call for Proposals: Race and Political Development at Oregon
Tuesday, November 01, 2005
Tuesday Calendar
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! Rankings! New rankings from Brian Leiter at the new website http://www.leiterrankings.com/. The website reports the July 2005 faculty rankings, listing the Top 30 law school faculties as measured by mean and median per capita scholarly impact(citations):
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