Legal Theory Blog
All the theory that fits!
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.
Saturday, December 31, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Hegel: Elements of the Philosophy of Right by Georg Wilhelm Fredrich Hegel. A classic! As an undergraduate, I took a graduate seminar on Hegel's philosophy of right with Josh Cohen. It is an immensely rich text--one that deserves serious attention from legal theorists. Here's a blurb:
Download of the Week The Download of the Week is Contract as Statute by Stephen J. Choi and G. Mitu Gulati. Here's the abstract & you can scroll down to Friday for some comments:
Breyer beats out Scalia Check out So, Guy Walks Up to the Bar, and Scalia Says... in today's New York Times. Here's a taste:
Friday, December 30, 2005
Choi & Gulati on Contract as Statute Stephen J. Choi and G. Mitu Gulati (New York University - School of Law and Georgetown University Law Center) have uploaded Contract as Statute to SSRN. Here is the abstract:
Thai on Justice Stevens Joseph T. Thai (University of Oklahoma - College of Law) has uploaded John Paul Stevens (Encyclopedia of American Civil Liberties, Routledge, 2006) to SSRN. Here is the abstract:
Thursday, December 29, 2005
Call for Papers: Computers, Freedom, & Privacy
Anand on Sarbox & Corporate Governance Anita I. Anand (Yale Law School) has posted An Analysis of Enabling vs. Mandatory Corporate Governance Structures Post Sarbanes-Oxley on SSRN. Here is the abstract:
Perez on Linkage & the WTO Oren Perez (Bar-Ilan University, Faculty of Law) has posted Multiple Regimes, Issue Linkage and International Cooperation: Exploring the Role of the WTO (University of Pennsylvania Journal of International Economic Law, Spring 2006) on SSRN. Here is the abstract:
Mootz on Neitzsche Francis Joseph Mootz III (Pennsylvania State University - The Dickinson School of Law) has posted Responding to Nietzsche: The Constructive Power of Destruktion (Law, Culture and the Humanities, 2006) on SSRN. Here is the abstract:
Wednesday, December 28, 2005
Concerence Announcment: European Socio-Legal Conference
Duncan on Remorseless Children Martha Grace Duncan (Emory University - School of Law) has posted 'So Young And So Untender' Remorseless Children and the Expectations of the Law (Columbia Law Review, Vol. 102, p. 1469, 2002) on SSRN. Here is the abstract:
Richman, Weinstock and Mehta on Rockingham County v. Luten Bridge Co. Barak D. Richman , Jordi Weinstock and Jason Mehta (Duke University School of Law , Duke University - School of Law and Harvard University - Harvard Law School) have posted A Bridge, a Tax Revolt, and the Struggle to Industrialize: The Story and Legacy of Rockingham County v. Luten Bridge Co. on SSRN. Here is the abstract:
Rosenfeld on Derrida's Ethical Turn, Terrorism, and Enlightenment Michel Rosenfeld (Cardozo Law School) has posted Derrida’s Ethical Turn and America: Looking Back from the Crossroads of Global Terrorism and the Enlightenment (Cardozo Law Review, Vol. 27, 2006) on SSRN. Here is the abstract:
Goldberg on Wood v. Lucy, Lady Duff-Gordon Victor P. Goldberg (Columbia Law School) has posted Reading Wood v. Lucy, Lady Duff-Gordon with Help from the Kewpie Dolls on SSRN. Here is the abstract:
Tuesday, December 27, 2005
Berman on the End of Conflicts Harold Berman (Emory University - School of Law) has posted Is Conflict of Laws Becoming Passe? An Historical Response (BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY ZUM 70. GEBURTSTAG, Hans-Eric Rasmussen-Bonne, Richard Freer, Wolfgang Lüke, Wolfgang Weitnauer, eds., Verlag Recht und Wirtschaft GmbH, 2005) on SSRN. Here is the abstract:
Gervais on IP, Trade, & Development Daniel J. Gervais (University of Ottawa - Common Law) has posted Intellectual Property, Trade & Development: The State of Play (Fordham Law Review, Vol. 74, pp. 505-535, 2005) on SSRN. Here is the abstract:
Haynes on Prosecuting Traffickers Dina Francesca Haynes (University of Nevada, Las Vegas - William S. Boyd School of Law) has posted Used, Abused, Arrested and Deported: Extending Immigration Benefits to Protect the Victims of Trafficking and Secure the Prosecution of Traffickers (Human Rights Quarterly, Vol. 26, No. 2, May 2004) on SSRN. Here is the abstract:
Roberts on Jurisdiction Stripping Caprice L. Roberts (West Virginia University College of Law) has posted Jurisdiction Stripping in Three Acts - Three String Serenade (Villanova Law Review, Vol. 51, 2006) on SSRN. Here is the abstract:
Monday, December 26, 2005
Weekend Update On Saturday, the Legal Theory Bookworm recommended Democratic Autonomy: Public Reasoning about the Ends of Policy by Henry Richardson, and the Download of the Week was Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis by Peter H. Huang. On Sunday, the Legal Theory Lexicon entry was on Originalism.
Best wishes to everyone for a joyous holiday season!
Meehan on Patentable Subject Matter Dr. Michael Meehan (Stanford Law School) has posted The Handiwork of Nature: Patentable Subject Matter and Laboratory Corporation v. Metabolite Labs on SSRN. Here is the abstract:
Green on Subsidies & Environmental Norms Andrew James Green (University of Toronto - Faculty of Law) has posted You Can't Pay Them Enough: Subsidies, Environmental Law and Social Norms (Harvard Environmental Law Review, Vol. 30, No. 2) on SSRN. Here is the abstract:
Oestreicher-Singer and Sundararajan on Valuing Digital Rights Gal Oestreicher-Singer and Arun Sundararajan (New York University - Leonard N. Stern School of Business and New York University - Leonard N. Stern School of Business) have posted Are Digital Rights Valuable? Theory and Evidence from eBook Pricing on SSRN. Here is the abstract:
Basheer on Baazee Shamnad M. Basheer (University of Oxford - Oxford Intellectual Property Research Centre (OIPRC)) has posted Baazee, Bajaj, and Bailing out the Law (BAAZEE, BAJAJ, AND BAILING OUT THE LAW, Economic Times, February 5, 2005) on SSRN. Here is the abstract:
Sunday, December 25, 2005
Legal Theory Lexicon: Originalism
The Originalist Revival No one scholar or judge can deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. At various points in time, both sides have claimed the upper hand, but at the level of theory, the case for originalism has always been contested.
Originalism is not an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan's nomination of Robert Bork (an avowed originalist) was one key moment--with his defeat by the democrats seen as a political rejection of originalism. The current Supreme Court has at least three members who seem strongly influenced by originalist constitutional theory--Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas.
The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. Two developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court--We the People: Foundations, published in 1991. Second, Randy Barnett (along with Richard Epstein, the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists. Ackerman and Barnett represent two trends in originalist thinking: (1) the political orientation of originalism has broadened from conservatives to liberals and libertarians, and (2) the theoretical structure of originalism has morphed and diversified from the early emphasis on "the original intentions of the framers." After the publication of Paul Brest's Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is more likely to hear pronouncements that "we are all originalists, now."
Original Intentions Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as "intentions," e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality--leading to the conclusion that segregation is unconstitutional--or at a very particular level--in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the "separate but equal" principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles.
Yet another challenge to original-intent originalism was posed by Jefferson Powell's famous article, The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell's critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating if Powell's historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers' resistance to originalism were quite powerful. Especially important was the idea that "secret intentions" or "hidden agendas" had no legitimate role to play in constitutional meaning. In the end, however, Powell's article actually had the effect of turning originalism in a new direction--from original intention to original meaning.
Original Meaning The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.
The concept of original meaning originalism in its modern incarnation has been attributed to Justice Scalia, who is reported to have introduced the idea in a series of lectures in the 1980s; his essay, Originalism, The Lesser Evil, published in 1989, focuses on "original understanding" rather than "original intent." The idea has also been traced to a brief mention in Robert Bork's The Tempting of America, but Bork did not develop the idea extensively. Original-meaning originalism was develped more extensively by Justice Scalia in his opening essay in A Matter of Interpretation. Although the distinction between original meaning and original intent can be found in a variety of early contemporary sources including an article by Robert Clinton in 1987, the systematic development of original-meaning originalism is a relatively recent phenomenon. Original meaning originalism receives its most comprehensive explication and defense in Randy E. Barnett's new book, Restoring the Lost Constitution: The Presumption of Liberty--a systematic development of the original meaning approach and critique of the original intention theory.
Regime Theory Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted.
Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s.
Originalism and Precedent Whither originalism? Given the ups and downs of originalism over the past three decades, making long-term predictions seems perilous indeed. But I will make one prediction about the future of originalism. We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent--both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Already, originalists of various stripes are beginning to debate the role of precedent in an originalist constitutional jurisprudence. Given the conferences and papers that are already in the works, I think that I can confidently predict that the debate over originalism and stare decisis will be the next big thing in the roller-coaster ride of originalist constitutional theory.
Bibliography This very selective bibliography includes some of the articles that have been influential in the ongoing debates over originalism.
Saturday, December 24, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Democratic Autonomy: Public Reasoning about the Ends of Policy by Henry Richardson. Here's a blurb:
Download of the Week The Download of the Week is Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis by Peter H. Huang. Here is the abstract:
Friday, December 23, 2005
Macklin on the Safe Third Country Agreement Audrey Macklin (University of Toronto - Faculty of Law) has posted Disappearing Refugees: Reflections on the Canada-US Safe Third Country Agreement (Columbia Human Rights Law Review Vol. 36, pp. 365-426, 2005) on SSRN. Here is the abstract:
Horwitz on Blogs and the Law Paul Horwitz (Southwestern University School of Law) has posted Or of the [Blog] on SSRN. Here is the abstract:
Donohue & Wolfers on Empirical Evidence in the Death Penalty Debate John J. Donohue III and Justin Wolfers (Yale Law School and University of Pennsylvania - Business & Public Policy Department) have posted Uses and Abuses of Empirical Evidence in the Death Penalty Debate (Stanford Law Review, Vol. 58, December 2005) on SSRN. Here is the abstract:
Maillard on the Pocahontas Exception Kevin Noble Maillard (Syracuse University College of Law) has posted The Pocahontas Exception: American Indians and Exceptionalism in Antimiscegenation Law on SSRN. Here is the abstract:
Thursday, December 22, 2005
Koplow on Lethal Weapons David A. Koplow (Georgetown University Law Center) has posted Tangled up in Khaki and Blue: Lethal and Non-Lethal Weapons in Recent Confrontations (Georgetown Journal of International Law, Vol. 36, p. 703, 2005) on SSRN. Here is the abstract:
Gibbons & Grabau on Linguistic Minorities Llewellyn Joseph Gibbons and Charles M. Grabau (University of Toledo - College of Law and Independent) has posted Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation (New England Law Review, Vol. 30, No. 227, 1996) on SSRN. Here is the abstract:
Drobac on Adolescent Consent Jennifer Ann Drobac (Indiana University School of Law - Indianapolis) has posted 'Developing Capacity': Adolescent 'Consent' at Work, at Law, and in the Sciences of the Mind (Journal of Juvenile Law & Policy, Vol. 10, No. 1, 2006) on SSRN. Here is the abstract:
Huang on Cost-Benefit Analyhsis in Financial Regulation Peter H. Huang (Temple University - James E. Beasley School of Law) has posted Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis on SSRN. Here is the abstract:
Wednesday, December 21, 2005
Hatcher on Anime Online Jordan S. Hatcher (University of Texas at Austin) has posted Of Otaku and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law (Sript-ed, Vol. 2, No. 4, 2005) on SSRN. Here is the abstract:
GIbbons on Naughty Bytes Llewellyn Joseph Gibbons (University of Toledo - College of Law) has posted Digital Bowlderizing: Removing the Naughty Bytes (Michigan State Law Review, Vol. 167, 2005) on SSRN. Here is the abstract:
Shepherd on Fee Shifting George B. Shepherd (Emory University School of Law) has posted The Impacts of the European Rule for Fee-Shifting on Litigation Behavior (BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY ZUM 70. BEBURTSTAG, Hans-Eric Rasmussen-Bonne, Richard Freer, Wolfgang Luke and Wolfgang Weitnauer, eds., Verlag Recht und Wirtschaft GmbH, 2005) on SSRN. Here is the abstract:
Call for Papers: Action, Ethics, and Responsibility
Tuesday, December 20, 2005
H.L.A. Hart Fellowships at Oxford
Call for Papers: Philosophy & Cognitive Science
Call for Papers: Comparative Law Work in Progress
Monday, December 19, 2005
Fellowship Announcement: Health Policy at Harvard Harvard Law School announced a new fellowship program at Harvard in Health Law Policy, Biotechnology and Bioethics? We're planning to have 8 fellowships, which will be for staggered terms of 2 years, $60,000/yr, and require no teaching obligations. It is part of the new Petrie-Flom Center at Harvard Law School. The program is designed for young scholars to develop the scholarly corpus they need to maximize their odds of success on the entry-level market in health law, which is a market with marked undersupply of aspiring legal academics relative to the demand. For details see http://www.law.harvard.edu/programs/petrie-flom/fellowship.php.
Rappaport on Breyer's Active Liberty Michael Rappaport has a review of Justice Breyer's on Tech Central. Here's a taste:
Hasen on the Texas Redistricting Case Check out Hold the Line; The Texas redistricting case is not a winner for Democrats by election-law superblogger Rick Hasen. Here's a taste:
Sunday, December 18, 2005
Legal Theory Lexicon: The Rule of Law
This installment of the Legal Theory Lexicon provides a very short introduction to the idea of "the rule of law," aimed as usual at law students (especially first year law students) with an interest in legal theory.
What is the Rule of Law? The ideal of the rule of law, which can be traced back at least as far as Aristotle, is deeply embedded in the public political cultures of most modern democratic societies. For example, the Universal Declaration of Human Rights of 1948 declared that "it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law." Although the ideal of the rule of law has been criticized on the ground that it is an ideological construct that masks power relationships, even Marxist critics may acknowledge that observance of the ideal may curb abuses by the ruling class.
What is the ideal of the rule of law? An initial observation is that there are several different conceptions of the meaning of the rule of law. Indeed, the rule of law may not be a single concept at all; rather, it may be more accurate to understand the ideal of the rule of law as a set of ideals connected more by family resemblance than a unifying conceptual structure.
Dicey's Influential Formulation Historically, the most influential account of the rule of law was offered by A.V. Dicey. His formulation incorporated three ideas:
(2) equality before the law of all persons and classes, including government officials; and,
(3) the incorporation of constitutional law as a binding part of the ordinary law of the land.
b. Those who enact the laws and issue legal orders should do so in good faith, in the sense that they believe "a" with respect to the laws and orders they promulgate.
c. A legal system should recognize impossibility of performance as a defense, or at least a mitigating circumstance.
b. The requirement of consistency should hold for the interpretation of all rules.
b. The meaning of the laws should be clearly defined.
5. The Requirement of Due Process. The legal system should provide fair and orderly procedures for the determination of cases.
b. A legal system ought to contain rules of evidence that guarantee rational procedures of inquiry.
c. A legal system ought to provide a process reasonably designed to ascertain the truth.
d. Judges should be independent and impartial, and no person should judge her own case.
6. The Requirement of Government under Law. Actions by government and government officials should be subject to general and public rules.
b. The legality of government action should be subject to test by independent courts of law.
The Values Served by the Rule of Law What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot's of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.
Another way to look at the value of the rule of law is to focus on what the world would be like if there were systematic and serious departures from the requirements of the rule of law. What if the laws were secret? What if officials were immune from the law and could act as they pleased? What the system of procedure were almost completely arbitrary, so that the results of legal proceedings were random or reflected the whims and prejudices of judges? What if some classes of people were above the law? Or if other classes were "below the law" and denied the laws protections? These rhetorical questions are intended to draw out a "parade of horribles" in your imagination. In other words, the rule of law serves as a bulward against tyranny, chaos, and injustice.
The Rule of Law and Bad Law One final question: "Is the rule of law a good thing, even if the laws are bad, unjust, or in the extreme case evil?" This question is too tough to take on in a systematic way, but here is one helpful thought. In a reasonably just society, one might believe that the rule of law is a good thing, even if some of the laws are bad. Certainty and predictability provide very great goods, which would be undermined if each judge or official picked and chose among the laws, enforcing the ones that the judge thought were good and nullifying the ones the judge thought were bad. But in a thoroughly evil society, the rule of law will be extremely problematic. Even an evil society may benefit from regularity in the enforcement of ordinary laws, but when it comes to horrendously evil laws, anarchy or revolution is likely to be preferable to the rule of law.
Conclusion Sooner or later most law students run into a reference to "the rule of law," but in my experience, this idea is rarely explained when its introduced. This entry in the legal theory lexicon is designed to give you a fairly solid foundation with respect to the content of the rule of law and to get you thinking about what functions the rule of law serves.
Saturday, December 17, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Essays on Bentham : Jurisprudence and Political Theory by H. L. A. Hart. There is a lot of theoretically important work in this somewhat neglected collection of Hart's essays.
Download of the Week The Download of the Week is Equity Analysis and Natural Hazards Policy by Matt Adler. Here is the abstract:
Friday, December 16, 2005
Klerman on Trademark Dilution Daniel Klerman (University of Southern California Law School) has posted Trademark Dilution, Search Costs, and Naked Licensing on SSRN. Here is the abstract:
Wagner on Commons Insurance Wendy E. Wagner (University of Texas at Austin - School of Law) has posted Commons Ignorance: The Failure of Environmental Law to Provide the Information Needed to Protect Public Health and the Environment (Duke Law Journal, Vol. 53, No. 6, p. 1619, April 2004) on SSRN. Here is the abstract:
Somek on Misuse of Constitutional Rights Alexander Somek (University of Iowa, College of Law) has posted Equality as Reasonableness: Constitutional Normativity in Demise (THE DARK SIDE OF FNDAMENTAL RIGHTS, A. Sajo, ed., Kluwer, 2006) on SSRN. Here is the abstract:
Lubben on the Microeconomics of Chapter 11 Stephen Lubben (Seton Hall University - School of Law) has posted The Microeconomics of Chapter 11 and the Irrelevance of Ex Ante Costs on SSRN. Here is the abstract:
Huntington on Child Welfare Clare Huntington (University of Colorado School of Law) has posted Rights Myopia in Child Welfare (UCLA Law Review, Vol. 53, 2006) on SSRN. Here is the abstract:
Blumn on Public Choice and Public Lands Michael C. Blumm (Lewis & Clark Law School) has posted Public Choice Theory and the Public Lands: Why Multiple Use Failed (Harvard Environmental Law Review, Vol. 18, 1994) on SSRN. Here is the abstract:
Morrison on Hamdi Trevor W. Morrison (Cornell University - School of Law) has posted Hamdi's Habeas Puzzle: Suspension as Authorization? (Cornell Law Review, Vol. 91, January 2006) on SSRN. Here is the abstract:
Thursday, December 15, 2005
Cotter on Competition and Intellectual Property Thomas F. Cotter (Washington and Lee University - School of Law) has posted The Precompetitive Interest in Intellectual Property Law on SSRN. Here is the abstract:
Wiggins on Optimal Consumer Bankruptcy Policy Mary Jo Wiggins (University of San Diego - School of Law) has posted Conservative Economics and Optimal Consumer Bankruptcy Policy (Theoretical Inquiries, 2006) on SSRN. Here is the abstract:
Adler on Equity & Natural Hazards Policy Matthew D. Adler (University of Pennsylvania Law School) has posted Equity Analysis and Natural Hazards Policy (ON RISK AND DISASTER: LESSONS FROM HURRICANE KATRINA, Ronald Daniels, Howard Kunreuther, and Donald Kettl, eds., University of Pennsylvania Press, 2006) on SSRN. Here is the abstract:
Tsai on Democracy Robert L. Tsai (University of Oregon - School of Law) has posted Democracy's Handmaid (Boston University Law Review, Vol. 86, 2006) on SSRN. Here is the abstract:
Nagareda on Choice of Law and the Class Action Fairness Act Richard A. Nagareda (Vanderbilt University School of Law) has posted Bootstrapping in Choice of Law After the Class Action Fairness Act (University of Missouri-Kansas City Law Review, Vol. 74, Winter 2005) on SSRN. Here is the abstract:
Pfaff on Vountary Sentencing Guidelines After Blakely John F. Pfaff (Fordham University - School of Law) has posted The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines on SSRN. Here is the abstract:
Wednesday, December 14, 2005
Conference Announcement: Practical Reason at Bowling Green
Call for Papers: Mackie's Inventing Right and Wrong
Call for Papers: Constitutional LIteracy at American
Tuesday, December 13, 2005
Blumm & Brown on Pluralism & the Environment Michael C. Blumm and Stephen R. Brown (Lewis & Clark Law School and Lewis & Clark Law School) have posted Pluralism and the Environment: The Role of Comment Agencies in NEPA Litigation (Harvard Environmental Law Review, Vol. 14, pp. 277-310, 1990) on SSRN. Here is the abstract:
Katyal on Slash Fan Fiction Sonia Katyal (Fordham University School of Law) has posted Performance, Property, and the Slashing of Gender in Fan Fiction (Journal of Gender, Social Policy, and the Law, Forthcoming) on SSRN. Here is the abstract:
Eisenberg & Miller on Incentives for Class Action Plaintiffs Theodore Eisenberg and Geoffrey P. Miller (Cornell Law School and New York University School of Law) have posted Incentive Awards to Class Action Plaintiffs: An Empirical Study on SSRN. Here is the abstract:
Bradley on Raich Craig Bradley (Indiana University School of Law-Bloomington) has posted Gonzales v. Raich: Oh Federalism, Where is thy Sting? (Trial Magazine, August 2005) on SSRN. Here is the abstract:
Monday, December 12, 2005
Secunda on Lawrence v. Texas Paul Secunda (University of Mississippi) has posted The (Neglected) Importance of Being Lawrence: The Constitutialization of Public Employee Rights to Decisional Non-Interference in Private Affairs on SSRN. Here is the abstract:
Heller on Circumstantial Evidence Kevin Jon Heller (University of Georgia) has uploaded The Paradox of Circumstantial Evidence to SSRN. Here is the abstract:
Sunday, December 11, 2005
Legal Theory Lexicon: Positive and Normative Legal Theory
The core idea of the distinction between positive and normative legal theory is simple: positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas normative legal theories tell us what the law ought to be. Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are about facts and normative legal theories are about values.
Positive Legal Theory Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:
Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules.
Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.
Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose. They do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.
Positive Theory as a Constraint on Normative Theory Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory.
Interpretivism and "Law as Integrity" There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post.
Saturday, December 10, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Judicial Review in the New Democracies by Tom Ginsburg. Here's a blurb:
Download of the Week The Download of the Week is No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty by Carol Steiker. Here is the abstract:
Friday, December 09, 2005
The Globalization of Legal Theory
Of course, in the Western tradition there is a long tradition of legal theory that transcends national boundaries. For example, Roman law provides a set of shared jurisprudential ideas for legal systems in the “civil law” tradition, and English common law serves a similar function for common-law legal systems in the United States, Canada, Australia, Israel, and elsewhere. Moreover, there is a tradition of legal theorizing, running from Plato and Aristotle through Aquinas, Pufendorf, and Grotius and extending to modern figures like Austin, Kelsen, and Hart. Institutionally, the IVR has played an important role in bringing legal theorists together in biannual “World Congresses for Legal and Social Philosophy.”
That is, long before “globalization” was a buzz word, there was global dissemination of legal theory. Nonetheless, I suspect that globalization has hit legal theory in a way that makes the global dissemination of theoretical ideas about law more rapid, thorough, and influential than ever before. This suspicion is based on several pieces of data. Most recently by my observations in China, where both law and economics and analytic jurisprudence have been the subject of several papers and informal conversations, not just with faculty members but also with undergraduate students! I read hundreds of SSRN abstracts almost every week, and the globalization of legal theory is in strong evidence there, with abstracts being posted from all over the world on a regular basis.
This post is simply a set of reflections about the globalization of legal theory, informed by my own recent experiences, in China and elsewhere.
Legal Theory and the Parochial Nature of Legal Culture The main thrust of this post is an argument that legal theory is “globalizing” or transcending the boundaries of national legal cultures, in new and important ways. But this phenomenon takes place against a “centripetal force” that tends to “balkanize” thinking about law. That force is the parochial nature of legal culture. Law in modern societies is organized by the nation-state. That is, legal cultures are organized national (and subnational) legal systems. Most American lawyers know federal law and/or the laws of a particular state or group of states. Most French lawyers know French law, Chinese lawyers, Chinese law, and so forth. To the extent that legal theory functions to “theorize” actual legal practice, they theorize “American law,” “Chinese law,” “French law,” and so forth. Moreover, legal cultures “speak the vernacular.” That is, American lawyers speak English—proficiency in other languages is not a professional requirement for becoming a lawyer. And the same is true (more or less) for many other legal cultures. So there is a “centripetal force,” the linguistic and cultural isolation that drives legal cultures apart.
Of course, this point should not be exaggerated. National law is supplemented by international law, transnational commercial law, and by the study of “comparative law,” a methodology that aims to bridge the gap between diverse legal cultures. American lawyers know a little about civil law, and French lawyers may know about English law. Some lawyers specialize in international public or private law. This has always been true, and therefore, there have always been “gravitational pulls” that operate against the centripetal force of linguistically isolated national legal cultures. And, as I’ve already mentioned, in Western legal cultures there is a common intellectual heritage of legal philosophy that has been shared by diverse national legal cultures.
In other words, there has always been some “globalization” of legal theory. Has this globalization increased? And, if so, why?
The Forces Driving and Enabling the Globalization of Legal Theory I certainly haven’t done any sort of systematic empirical investigation of the question whether legal theory is more global now than it was 10, 20, or 50 years ago, but I strongly suspect that it is. Why? There are a variety of changes that may have contributed. Here are some possibilities:
Let me use SSRN to illustrate the about-to-take-off thesis. I take SSRN for granted. (I read abstracts and papers almost every day.) But I still know some legal academics who have barely heard of SSRN—much less uploaded (or downloaded) a paper. SSRN has penetrated many legal cultures, but there are still whole nations where no one uses SSRN. I don’t know whether SSRN as we know it will even exist in 10 years, but something like it will exist, and I suspect that free distribution of scholarship on the Internet in 10 years will be ubiquitous. Almost everyone will upload working papers and final articles one way or another, and full-text searching will become the norm. When a scholar in Asia works on a problem of legal theory, they will have easy access to the latest relevant work from Europe or Latin America. And this will happen in world where more legal theorists speak English and where the costs of communications and travel are even lower than they are today.
Is “Globalization” really “Americanization”? In other contexts, some consider “globalization” to be a synonym for Americanization. Well, in the context of legal theory, not exactly “Americanization,” because the United Kingdom has played an important role in American legal theory—consider the role of Oxford scholars H.L.A. Hart, Joseph Raz, Ronald Dworkin, and John Finnis in the philosophy of law. So we might ask the question: Is the globalization of legal theory really an Anglo-Americanization of legal theory? In some ways, the answer seems to be “yes.” Americans have played a leading role in the law and economics movement—with Ronald Coase and Richard Posner as just two prominent examples. One counter example to the Anglo-Americanization thesis is the major impact that the German social theorist Jürgen Habermas has had on legal theory, especially in Europe but also in the common-law world.
There are reasons to believe that the relative importance of the United States may decline over time. The United States was on the leading edge of the Internet curve, but that comparative advantage is fading fast as other nations equal or exceed the United States in rates of high-speed Internet access. Of course, many other factors play a role in determining the relative importance of regions and nations in the development of legal theory—certainly national wealth and the level of financial investment in legal education are just two important factors among many.
Conclusion Legal theory is globalizing to an unprecedented extent—I’m sure of that. But what does this mean? Does this phenomenon have any significant implications? I’m not sure, and I would welcome the opinions of Legal Theory Blog readers on this question. My guess is that we are about to see more interpenetration of ideas that have developed in relatively isolated legal cultures. But will anything new and important be brought to the table? Will globalization make legal theory blander rather than better?
Comments by email are especially welcome on this topic! I’m especially interested in the thoughts of scholars from outside the United States and outside of the developed world! As always, you can email me at: firstname.lastname@example.org
Thursday, December 08, 2005
Conference Announcement: Multiculturalism and the Antidiscrimination Principle at Ramat-Gan
Rothman on Initial Interest Confusion Jennifer Rothman (Washington University, St. Louis) has posted Initial Interest Confusion: Standing at the Crossroads of Trademark Law on SSRN. Here is the abstract:
Erbsen on Class Action Regulation Allan Erbsen (University of Minnesota Law School) has posted From 'Predominance' to 'Resolvability': A New Approach to Regulating Class Actions on SSRN. Here is the Abstract:
Wednesday, December 07, 2005
Danay on P2P in the UK Robert Danay has posted Copyright vs. Free Expression: The Case of Peer-to-Peer File-Sharing of Music in the United Kingdom on SSRN. Here is the abstract:
Sandefur on Kelo I am now in Bejing, and posting on a brand-new paper by Tim Sandefur. But before I give you the usual details, I wanted to mention that the Kelo was the subject of active interest by several Chinese academics at the conference I attended earlier this week in Guangzhou. Small world?
Timothy Sandefur has posted The “Backlash” So Far: Will Citizens Get Meaningful Eminent Domain Reform? on SSRN. Here is the abstract:
Conference Announcement: Kripke in Barcelona
Tuesday, December 06, 2005
Visit to Beijing I will be attending a conference at the MILES Institute of Law and Economics in Beijing on Friday, December 9. If you are a reader of Legal Theory Blog and plan to attend the conference or would like to say hello during my visit, drop me an email at email@example.com or introduce yourself at the conference. See you then!
Thanks You! I wanted to thank my hosts at Sun Yat-Sen University in Guangzhou for their very gracious hospitality the last few days. I've been at a conference on Law and Economic Development with colleagues from the University of Illinois and legal scholars from all over China. It has been an enlightening and stimulating experience.
One of the most imteresting aspects of the visit has been my new appreciation of the penetration of law and economics into Chinese legal theory. I must have heard at least a half-dozen papers that made extensive use of sophisticated economic reasoning, and there were more mentions of Ronald Coase by Chinese legal academics than I can count, as well as sophisticated analysis of the interaction between legal norms and social norms.
I would also like to thank the many readers of Legal Theory Blog who came to the conference to hear my talk or to say hello. It was a pleasure to meet all of you and to discuss analytic positivism, Dworkin, virtue jurisprudence, and neoformalist legal thinking.
Monday, December 05, 2005
Steiker on the Sunstein-Vermeule Death Penalty Thesis with an update! Carol S. Steiker (Harvard Law School) has posted No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
Thanks to Adrian Vermeule for help on the precise nature of the claim they made. In the original version of this piece, I said I was not sure whether they specified "innocence" in their claim. As Adrian points out, this distinction is clear in the original article.
Hill on the Endorsement Test in Establishment Clause Jurisprudence Jessie Hill (Case Western Reserve University - School of Law ) has posted Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test (Michigan Law Review, Vol. 104, p. 491, 2005) on SSRN. Here is the abstract:
Hayden on Race & Voting Rights Grant M. Hayden (Hofstra University - School of Law) has posted Refocusing on Race (George Washington Law Review, Vol. 73, p. 1254, 2005) on SSRN. Here is the abstract:
Neff on Interpretive Power Lance Neff (Florida Coastal School of Law) has posted The Keys to the Kingdom: Interpretive Power and Societal Influence During Two Ages on SSRN. Here is the abstract:
Liberals and Abortion by Levinson & Balkin Over at Legal Affairs, Sandy Levinson and Jack Balkin debate Should Liberals Stop Defending Roe? From Levinson:
Sunday, December 04, 2005
Legal Theory Lexicon: Transparency
Transparency and Democratic Process Why should the processes of democratic decisionmaking be transparent? There are so many different answers to this question that one hardly knows where to begin, but we might start by distinguishing between answers that rely on consequentialist reasoning and those that appeal to ideas about rights, fairness, or legitimacy. The consequentialist case for transparency in government usually rests on the idea that opaque processes are likely to facilitate corruption or capture. Corruption is more likely because secret decisionmaking facilitates rent-seeking (soliciting bribes) by public officials; transparency processes make bribery more difficult and increase the likelihood that it will be exposed. "Capture" is the term used to describe domination of a regulatory process by the interests who are supposed to be regulated. When lawmaking (or administrative rulemaking) is done in secret, there is a greater likelihood that the information flow will be one sided.
The Bush Administration's energy policy provides a good example of debates over the pros and cons of transparency in government. The administration developed its energy policy through non-transparent procedures. Vice-President Cheney met in private with a variety of interest groups, and the records of the meetings were not made available to the public. Critics charged that this secrecy allowed oil and coal interests to dominate the decision-making process to the detriment of the public interest. The administration defended the process, arguing that public processes would have inhibited free and frank discussion of the issues by the various interest groups. Whether or not this argument was correct in this particular context, it illustrates an important point. Transparency in government comes at a price. Transparent processes may be inefficient--what can be done in private in minutes may take hours in public. Transparent processes may also distort decision-making, forcing political actors to pander to public opinion at the expense of good policy.
The case for transparency in government need not rest on consequences. It might also be argued that transparent government is required by the rights of citizens to meaningfully participate in democratic self-government. If public officials conduct business in private, then it becomes more difficult for citizens to make meaningful decisions at the ballot box.
Transparency in the Market and the Boardroom The case for transparent markets is simple. Efficiency requires information. Efficient pricing, for example, requires that buyers know what they are buyng and sellers know what they are selling. "Buying a pig in a poke" is simply a colorful way of expressing the idea that a nontransparent transaction has occurred. Transparency is especially important in capital markets Securities regulation in the United States rests on the assumption that mandatory disclosure of accurate financial information will lead to investor confidence and facilitate efficient financial markets. Without transparency each investor would face either uncertainty or enormous information acquisition costs. Efficient capital markets produce enormous benefits, because they enable resources to be allocated to their highest and best use. Finally, transparency in corporate governance aims to prevent management from appropriating wealth owned by stockholders.
There are, however, situations in which transparency is inconsistent with efficient markets. Trade secret law, for example, aims at the opposite of transparency. The theory is that the ability to keep secrets creates an incentive to develop new ideas, inventions, and processes; disclosure would allow competitors to appropriate the new idea without compensation, and hence would reduce the incentives for the creation of new knowledge. Similarly, corporations are not required to disclose business strategies and tactics.
Transparent Judicial Procedures Civil litigation and criminal trials provide a final context in which transparency is an important value. When we think about the transparency of judicial procedures, there are two different groups for whom the process may be transparent or opaque. The first group is comprised of litigants (plaintiffs/defendants in civil litigation and defendants in criminal litigation). The second group consists of the public at large. Most legal systems place a higher value on transparency to participants than on transparency to the public. While it is not unusual for a hearing to be closed to the public, it is very unusual for a judicial proceeding to exclude the parties themselves. But there are important exceptions to this rule. Deliberations by both judges and juries are usually opaque. Thus, even the defendant in a criminal case is not allowed to observe the deliberations of the jury. A similar rule applies to judicial deliberations. For example, the conferences of an appellate court (e.g. the United States Supreme Court) are conducted in the strictest secrecy, as are the communications between among judges and between judges and their clerks. In these contexts, the thought is that open deliberations would actually distort the decision making process, leading to worse rather than better decisions.
Conclusion Concern with process is ubiquitous in legal theory, and processes can be transparent or opaque. As a law student, you might begin to ask yourself about the effect of legal rules on transparency. Does this rule make the process more transparent or more opaque. When you encounter rules that render processes opaque, always ask why? There may be an answer to the question, but then again, there may not.
Reference Mark Fenster, The Opacity of Transparency (March 15, 2005). http://ssrn.com/abstract=686998.
Saturday, December 03, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends In the Beginning Was the Deed : Realism and Moralism in Political Argument by Bernard Williams. Here's a short description:
Hasen on the Future of Election Law The Download of the Week is No Exit? The Roberts Court and the Future of Election Law by Rick Hasen. Here is the abstract:
Friday, December 02, 2005
Dagan on Democratic Participation Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has posted The Currency of Democratic Participation on SSRN. Here is the abstract:
Parry on Raich John T. Parry (University of Pittsburgh School of Law) has posted Society Must Be [Regulated]: Biopolitics and the Commerce Clause in Gonzales v. Raich (Lewis & Clark Law Review, Vol 9, No. 4, pp. 853-877, 2005) on SSRN. Here is the abstract:
Travel & Erratic Posting Times I'm on my way to China this morning & will be in Guangzhou, Beijing, and then Singapore until mid-December. Legal Theory Blog will continue in operation during this period, but posting may be somewhat erratic.
Baker on Market Definition Jonathan B. Baker (American University, Washington College of Law) has posted Market Definition on SSRN. Here is the abstract:
Conference Announcement: International Disability Rights at Harvard
Thursday, December 01, 2005
Cheh on Legislative Oversight of Police Mary M. Cheh (The George Washington University Law School) has posted Legislative Oversight of Police: Lessons Learned from an Investigation of Police Handling of Demonstrations in Washington, D.C. (Journal of Legislation, Vol. 32, 2005) on SSRN. Here is the abstract:
Benjamin on the National Television Ownership Cap Stuart Minor Benjamin (Duke University School of Law) has posted Evaluating the Federal Communications Commission's National Television Ownership Cap: What's Bad for Broadcasting is Good for the Country (William & Mary Law Review, Vol. 46, November 2004) on SSRN. Here is the abstract:
Call for Papers: Empirical Legal Studies