Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? (Eric Muller) --Law & Society Weblog (Group Blog) --The Leiter Reports (Brian Leiter) --Lessig Blog (Lawrence Lessig) --Marstonalia (Brett Marston) --Paper Chase @ Jurist (Bernard Hibbitts) --Political Arguments (Group Blog) --ProfessorBainbridge.com (Stephen Bainbridge) --Pea Soup (Group Blog) --Punishment Theory (Group Blog) --The Right Coast (Group Blog) --SCOTUS Blog (Group Blog) --Sentencing Law and Policy (Douglas Berman --Statutory Construction Zone (Gary O'Connor) --TaxProf Blog (Paul Caron) --Volokh Conspiracy (Group Blog) Websites of Interest +Arts and Letters Daily +Conference Alerts +Daily Whirl +fa.philos-l +Economic Theory News +Encyclopedia of Law and Economics +Jurisprudence and Social Policy Program (U.C. Berkeley) eScholarship Repository +Law and Politics Book Reviews +Metapsychology Book Reviews +Notre Dame Philosophical Review +Online Papers in Philosophy +PoliticalTheory.info +SSRN Most Recent Uploads More Blogs of Interest --Althouse (Ann Althouse) --Asymmetrical Information (Jane Galt) --bIPlog (Group Blog) --The Blawg Review (Group Blog) --Brad DeLong --The Buck Stops Here (Stuart Buck) --Copyfight (Group Blog) --A Copyfighter's Musings (Derek Slater) --The Curmudgeonly Clerk --Daniel Drezner --Discriminations (John and Jessie Rosenberg) --Eastmania (Wayne Eastman) --EveTushnet.com (Eve Tushnet) --Freespace (Timothy Sandefur) --Furdlog Frank Field --Ideoblog (Larry Ribstein) --The Importance Of (Ernest Miller) --The Indiana Law Blog (Marcia J. Oddi) --Infothought (Seth Finkelstein) --IPKat (Jeremy Phillips and Ilanah Simon) --Law and Economics Blog (Greg Goelzhauser) --Law Dork (Chris Geidner) --Law Meme (Group Blog) --Lee Blog Edward Lee --Legal Ramblings (Steven Wu) --Lenz Blog (Karl-Friedrich Lenz) --Letters of Marque (Heidi Bond) --The Light of Reason (Arthur Silber) --Matthew Yglesias --philosophy.com (Gary Sauer-Thompson ) --Public Defender Dude --Rodger A. Payne's Blog --Southern Appeal (Group Blog) --Strange Doctrines/A> --Susan Crawford blog --A Taxing Blog (Group Blog) --That's News to Me (Group Blog) --Thoughts Arguments and Rants (Brian Weatherson) --Three Years of Hell to Become the Devil --The Trademark Blog (Martin Schwimmer) --Troppo Armadillo (Ken Parish) --Technology 360 --Tutissima Cassis (Nate Oman) --Unlearned Hand --Weatherall's Law (Kim Weatherall) --WENDY.SELTZER.ORG (Wendy Seltzer) --yin (Tung Yin) Legal Theory Programs & Websites --Arizona State Committee on Law and Philosophy --Cambridge Forum for Legal and Political Philosophy --Columbia Law School Center for Law and Philosophy --Columbia Legal Theory Workhsop --Georgetown University Law Center--Colloquium on Constitutional Law and Theory --Jurisprudence and Social Policy Program (U.C. Berkeley) --Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley) --NYU Colloquium in Legal, Political and Social Philosophy --Oxford Jurisprudence Discussion Group --Oxford Legal Philosophy --Oxford Centre for Ethics & Philosophy of Law --Queen's University Belfast Forlum for Law and Philosophy --Rutgers Institute for Law and Philosophy --UCLA Legal Theory Workshop --University of Pennsylvania Institute for Law and Philosophy --University College London: Colloquium in Legal and Social Philosophy --University of Chicago Law And Philosophy Workshops --University of Chicago: John M. Olin Program in Law and Economics Workshop --University of San Diego Institute for Law and Philosophy --University of Texas Law and Philosophy Program --Yale Law School: Legal Theory Workshop Links to Law School Workshops +Australian National University Faculty Events +Boston University +Buffalo +Columbia Center for Law and Economic Studies +Florida State +Fordham +George Mason +George Washington--IP Workshop Series +Georgetown Colloquium on Intellectual Property & Technology Law +Georgetown Law Workshops +Georgetown Law and Economics Workshop +Georgetown Law & Economics Workshop Series +Hofstra +University of Illinois +Lewis & Clark +Loyola Marymount +New York University +NYU Legal History Colloquium +Northwestern Law Colloquium +Oxford Law Events +Rutgers, Camden +Stanford Center for Internet & Society +Stanford Law School Olin Series +UCLA Colloquium +UCLA Legal History Workshop +UCLA Tax Policy --University of Chicago: John M. Olin Program in Law and Economics Workshop +University of Michigan Law and Economics +University of San Diego Colloquium Series +University of Texas Colloquium Series +Vanderbilt Scholarly Programs & Events Calendar +Villanova +Washington & Lee Faculty Workshops +Yale Law, Economics & Organizations Workshop Calendars & Events +Aristotelian Society +British Society for Ethical Theory +Conference Alerts +Events in Analytic Philosophy in Europe (and Overseas Countries) +The Philosophical Calendar +Philosophy Now Calendar +Political Science Online Upcoming Conferences +SSRN Professional Announcements Other Programs --Australian National University, Research School of Social Science, Philosophy Seminars --Boston University Philosophy Colloquia --Brown University Philosoophy Upcoming Events George Mason Workshop in Philosophy, Politics, and Economics --Harvard University, Philosophy Colloquia --MIT Philosophy Colloquia --New York University, Philosophy Events --Oxford: Events at the Faculty of Philosophy --Princeton University: Philosophy Department Talks --Princeton University: Political Philosophy Colloquium --Princeton University: Public Law Colloquium --Princeton University: Seminar in Law and Public Affairs --Tulane Philosophy and Center for Ethics & Public Affairs Seminars --University College, London: Political Theory Seminars --University of Arizona Philosophy Colloquia --University of Bristol Philosophy Research Seminars --University of California at Berkeley Philosophy Events --University of California at San Diego Philosophy Colloquia --University of Chicago Political Theory Workshop --University of London, School of Advanced Study, Philosophy Programme --University of Manchester Politics & Philosophy Research Seminars --University of Melbourne Philosophy Events --University of North Carolina: Philosophy Speakers --University of Pennsylvania: Philosophy Colloquiua --University of Pittsburgh Philosophy Calendar --Yale Philosophy Department Talks Some Legal Theorist Homepages --Robert Alexy (Christian Albrechts University Kiel) --Randy Barnett (BU) --Brian Bix (Minnesota) --Jules Coleman(Yale Law & Philosophy) --Ronald Dworkin(NYU & University College) --John Finnis(Oxford and Notre Dame) --John Gardner (Oxford) --Brian Leiter (Texas) --Micahel Moore (Illinois) --Dennis Patterson (Rutgers, Camden) --Stephen Perry (NYU) --Richard Posner (University of Chicago & USCA7) --Joseph Raz (Oxford and Columbia) --Jeremy Waldron (Columbia More to come! Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Tuesday, February 28, 2006
Board Turnovers & New Volume Submissions I am very pleased (and relieved) to report that Kaimi Wenger is collecting information about law review board transitions and dates for submissions for next year's volumes at Concurring Opinions. Follow this link! Tuesday Calendar
Georgetown Colloquium on Constitutional Theory: Steven Teles (government, Center for the Study of American Politics, Yale University), Parallel Paths: The Evolution of the Conservative Legal Movement Georgetown Law: Kathy Zeiler Lewis & Clark Law: Julian Ku, Associate Professor of Law, Hofstra Gubernatorial Foreign Policy. Oxford Human Rights Discussion Group: Caoilfhionn Gallagher, Proportionality in Practice University of Pennsylvania, Tax Policy Workshop: Lily Batchelder, Refundable Credits Yale Legal History: DANIEL ERNST, Georgetown University Law Center, "The Corporate Law Firm in the Liberal State: Legal Divisions in New Deal and Wartime Washington" Loyola University Chicago: Steven Ramirez (Washburn Law School), "Corporate Governance and Race" Monday, February 27, 2006
Lateral Hiring Report Dan Filler is doing data collection on lateral hiring over at Concurring Opinions. Here is the link: Law School Lateral Hiring Report Entry Level Hiring Report The appointments season is winding down, and once again, I will compile an entry-level hiring report. I am interested in all entry-level tenure-track hires at American law schools. Click here to view last year's report. This time around, I am trying to collect the following data elements:
If you are a job candidate, please pass along the email address of the appointments committee chair, so I can find out about other hires. The data element, "pre-tenure track legal academic posititon," is intended to encompass VAPs, Fellowships, and other full-time positions that are intended to lead to a full-time academic job. Email information to me at lsolum@gmail.com Thanks! Update: Reports are already rolling in! Thanks. I'll post an interim report once I have data on a significant number of schools and hires. Adler & Sanchirico on Inequality and Uncertainty Matthew D. Adler & Chris William Sanchirico (Penn Law) have posted Inequality and Uncertainty: Theory and Legal Applications on SSRN. Here is the abstract:
Graetz & Warren on Income Tax Discrimination & European Integration Michael J. Graetz and Alvin C. Warren Jr. (Yale Law School and Harvard University - Harvard Law School) have posted Income Tax Discrimination and the Political and Economic Integration of Europe (Yale Law Journal, April 2006) on SSRN. Here is the abstract:
Wiegand on Conflicts Restatements Shirley Wiegand (Marquette University - Law School) has posted Fifty Conflict of Laws 'Restatements': Merging Judicial Discretion and Legislative Endorsement (Louisiana Law Review, Vol. 65, No. 1, 2005) on SSRN. Here is the abstract:
Weiss on Enforceable Social Clauses Marley S. Weiss (University of Maryland - School of Law) has posted Architectural Digest for International Trade and Labor Law: Regional Free Trade Agreements and Minimum Criteria for Enforceable Social Clauses on SSRN. Here is the abstract:
Bank on Dividens & Tax Policy Steven A. Bank (University of California, Los Angeles - School of Law) has posted Dividends and Tax Policy in the Long Run on SSRN. Here is the abstract:
Sunday, February 26, 2006
Legal Theory Calendar
Georgetown Law & Philosophy: Norman Finkel (Psychology, Georgetown) Yale Workshop Theory & Policy: DALTON CONLEY, Sociology, New York University, Family Background and Race over the Life Course Hofstra Law: Suzanne Goldberg, Rutgers School of Law – Newark, “Constitutional Adjudication, Civil Rights, and Social Change” London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Nicola Knight (Michigan), On some aspects of the psychology of normativity NYU Law: Clay Gillette. UCLA Law: Ann Southworth, "Social Backgrounds and Characteristics of Prominent Lawyers of the Conservative Coalition: Sources of Conflict and Cohesion" University of Alabama Law: Rob Atkinson, Florida State University of Texas Law: Alex Stein (Cardozo), "Ambiguity Aversion and the Criminal Process"
Georgetown Colloquium on Constitutional Theory: Steven Teles (government, Center for the Study of American Politics, Yale University), Parallel Paths: The Evolution of the Conservative Legal Movement Georgetown Law: Kathy Zeiler Lewis & Clark Law: Julian Ku, Associate Professor of Law, Hofstra Gubernatorial Foreign Policy. Oxford Human Rights Discussion Group: Caoilfhionn Gallagher, Proportionality in Practice University of Pennsylvania, Tax Policy Workshop: Lily Batchelder, Refundable Credits Yale Legal History: DANIEL ERNST, Georgetown University Law Center, "The Corporate Law Firm in the Liberal State: Legal Divisions in New Deal and Wartime Washington" Loyola University Chicago: Steven Ramirez (Washburn Law School), "Corporate Governance and Race"
NYU Legal History: Bernadette Meyler, Assistant Professor, Cornell Law School, "Towards a Common Law Originalism” UCLA Legal History Workshop: Risa Goluboff, University of Virginia School of Law, « Back, The Lost Origins of Modern Civil Rights University of Georgia Law: Michael Wells (UGA): "Sociological Legitimacy" in the Supreme Court University of Toronto, Tax Law & Policy Workshops: Reuven Avi-Yonah, University of Michigan The Three Goals of Taxation. Villanova Law: Milton Regan, Georgetown University Law Center UC Hastings: Judge Loren Smith, US Court of Federal Claims, Life, Liberty, and (Whose) Property? with commentary by Prof. Bhagwat, UC Hastings.
Boston University Law: Henry Smith (Visiting Professor of Law, Harvard Law School and Professor of Law & Cognitive Science, Yale Law School), "Modularity in Intellectual Property" Brooklyn Law: Daniel Greenwood, Visiting Professor of Law, Brooklyn Law School, Are Shareholders Entitled to the Residual? Florida State Law: Jill Fisch, Fordham University School of Law Fordham Law: Sonia K. Katyal, Associate Professor of Law, Fordham University School of Law, "Trademark Intersectionality" UC Berkeley Center for Law and Technology & Berkeley Center for Law, Business and the Economy: Symposium on Legal and Policy Issues in Stem Cell Research UC Berkeley, Kadish Center: Hans Sluga, Professor of Philosophy, University of California, Berkeley, The Care of the Common NYU Colloquium on Tax Policy and Public Finance: Joseph Bankman, Stanford Law School, and David Weisbach, University of Chicago Law School, “The Superiority of an Ideal Consumption Tax Over an Ideal Income Tax.” Northwestern Tax Series: Calvin H. Johnson, Andrews & Kurth Centennial Professor, University of Texas at Austin "Tales From the KPMG Skunk Works: The Basis-Shift or Defective-Redemption Shelter" Oxford Jurispurdence Discussion Group: Juan Cruz Parcero, Reasons to Justify Rights Oxford Public International Law Discussion Group: Judge Allan Rosas, International Law in the European Court of Justice Stanford Law & Economics: Marcel Kahan (New York University Law School), "Hedge Funds in Corporate Governance and Corporate Control" University College, London, Current Legal Problems Lecture: Mindy Chen-Wishart, (Merton College Oxford), ‘Undue Influence: Vindicating Relationships of Influence’ University of North Dakota, Indian Law Center: Philip S. (Sam) Deloria, "Indians in Legal Education"
Boston College: Martha L. Minow, Harvard Law School Georgetown Law & Economics: Scott Baker, University of North Carolina School of Law, "Incomplete Contracts in a Complete Contracts World" (with K. Krawiec) Loyola, Los Angeles: Roger C. Park, Distinguished Professor of Law, UC Hastings College of the Law, "The Utility of Cross-Examination" Notre Dame Law: Professor Douglas Kysar, Cornell Law School Ohio State Law: Elizabeth Garrett, The Promise and Perils of Hybrid Democracy* UCLA Law: Richard C. Schragger, Associate Professor of Law, University of Virginia School of Law, "Can Strong Mayors Empower Weak Cities? Considering the Power of Local Executives in a Federal System" University of Texas Law: David Barron, Harvard University, "International Local Government Law" University of Maryland, Conference:
University of Arizona Law: Economic Torts Conference
Legal Theory Lexicon: Concepts and Conceptions
This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory. Essentially Contested Concepts So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues. A quick aside. Sometimes, when there is this sort of disagreement, we want to say, "Ah, you and I are referring to different concepts." If by "cause," you mean "legal cause," whereas I use "cause" as a synonym for "cause in fact," then we are using the same word to refer to two different concepts. Back to "good." But in the case of "good," we seem to be using the same concept. I think that the good really is human flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept. Gallie thought that some concepts were essentially contested. That is, Gallie believed that some concepts were such that we would never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application. Two Uses of the Concept/Conception Distinction
Dworkin on Concepts and Conceptions in Legal Reasoning Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts. References Saturday, February 25, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Taking Rights Seriously by Ronald Dworkin. This is a modern classic, containing early and important essays, including Hard Cases--an absolute must read for every law student and legal academic. Here's a blurb:
Download of the Week The Download of the Week is Disenchantment and Desire: What is to Be Done? by Sandy Levinson (University of Texas). Here is a taste of this Chapter from Levinson's forthcoming book:
Friday, February 24, 2006
Friday Calendar
Villanova Law: Wendy Scott, Tulane University School of Law University of Texas Law: John Langbein, Yale University, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials under ERISA University of Georgia International Law Colloquium: Karen Knop (University of Toronto), "Enemies and Outlaws: War and the Public/Private Citizen" University of Georgia Law: Anthony Alfieri (Miami), The Fall of Legal Ethics and the Rise of Risk Management UCLA Media, Entertainment, and Culture Workshop:
Ohio State Legal History: David Gold, A History of the Ohio General Assembly Notre Dame Law: Professor Lisa Heinzerling, Georgetown University Law Center American University Program on Intellectual Property and the Public Interest, Orphan Works (link for webcast) Georgetown Law & Economics: Greg Sidak, Georgetown University Law Center, Should Internet Protocol-Enabled Video Service Provided over a Telephone Network Be Regulated as Cable Service?" Columbia Journal of Gender and Law Symposium: Sexuality and the Law:
Feminist ABC’s of Sex Education by Linda McClain, Hofstra University School of Law Moderator: Professor Ariela Dubler
Transgendered Plaintiffs and Title VII by Jennifer Levi, Western New England College, School of Law Moderator: Professor Suzanne Goldberg
Rethinking Prison Sex: Self-Expression and Safety by Brenda Smith, American University, Washington College of Law Moderator: Professor Philip Genty 2:15pm-3:15pm: Sexuality and Marriage
A Historical Guide to the Future of Marriage for Same-Sex Couples by Suzanne Goldberg, Rutgers School of Law - Newark Moderator: Professor Carol Sanger
The New Politics of Adultery by Brenda Cossman, University of Toronto, Faculty of Law The Expressiveness and (Potential) Gender-Neutrality of Sexuality following Lawrence v. Texas by James Garland, Hofstra University School of Law Moderator: Professor Elizabeth Emens Thursday, February 23, 2006
Welcome to the Blogosphere . . . to Empirical Legal Studies, with editors Jason Czarnezki, Michael Heise, Theodore Eisenberg, and William Ford and a great lineup of guest bloggers to come. Thursday Calendar
Update: University of Arizona College of Law: Ahmed White, University of Colorado, "Criminal Syndicalism Laws, the Industrial Workers of the World, and the Criminalization of Economic Radicalism, 1917-1927." Yale Law, Economics & Organizations: Professor Charles Calomiris, Columbia, International Business, Relationship Banking and the Pricing of Financial Services Vanderbilt Law: David Hyman, University of Illinois College of Law, "Do Defendants Pay What Juries Award?: Post-Verdict Haircuts in Texas Medical Malpractice Caes, 1988-2003" UCLA Legal Theory Workshop: Daniel Markovits (Yale). University of Texas Alexander Watkins Terrell Centennial Lectureship: John Langbein, Yale University, Understanding the Death of the Private Pension Plan in the United States University of Texas Colloquium on Constitutional and Legal Theory: Rick Pildes (NYU) "Separation of Parties, not Powers" University of Michigan Law & Economics: Michael Abramowicz, George Washington, Patent Auctions University College, London, Faculty of Laws: Dr Oliver Gerstenberg (University of Leeds), ‘The European Convention of Human Rights and Domestic Constitutional Discourse: A Clash of Absolutes’ Oxford Public International Law Discussion Group: Charles Proctor, The Recent US-China Currency Dispute in International Law: Trade and Monetary Relations Oxford Financial Law Discussion Group: Frederique Dahan and John Simpson, Secured Credit Legal Issues in Transition Economies Oxford Law Faculty: Sarah Worthington, Why distinguish between property and contract? Ohio State Law: Arthur Greenbaum, The Role of Judges in Reporting Lawyer Misconduct NYU Colloquium on Tax Policy and Public Finance: Alan Auerbach, Berkeley Economics Department, "Who Bears the Corporate Tax? A Review of What We Know." King's College, London: Rebecca Bennett (Manchester), Should we eradicate disability: a reply to harris. UC Berkeley, Kadish Center: Rae Langton, Professor of Philosophy, MIT, SPEAKER'S FREEDOM AND MAKER'S KNOWLEDGE Georgetown Law & Philosophy: Jonathan Marks (Greenwall Fellow, Georgetown and Johns Hopkins) Fordham Law: Eric A. Posner, Kirkland & Ellis Professor of Law, University of Chicago Law School, "Emergencies and Democratic Failure" Florida State Law: Tracy Higgins, Fordham University Regulatory Feminism Brooklyn Law: David Skeel, University of Pennsylvania Law School, Who Makes the Rules for Hostile Takeovers, and Why? & The Peculiar Divergence of US and UK Takeover Regulation Boston University Law: David Seipp, "Big Legal History and the Hundred-Year Test" Claus on the Conception of a Constitution Laurence Claus (University of San Diego School of Law) has posted Implication and the Concept of a Constitution (Australian Law Journal, Vol. 69, p. 887, 1995) on SSRN. Here is the abstract:
Winn on Islamic Law and Electronic Commerce Jane K. Winn (University of Washington - School of Law) has posted Islamic Law, Globalization and Emerging Electronic Commerce Technologies on SSRN. Here is the abstract:
Morag-Levine on Foreign Precedents Noga Morag-Levine (Michigan State University - College of Law) has posted Judges, Legislators, and Europe's Law: Common-law Constitutionalism and Foreign Precedents (Forthcoming, Maryland Law Review) on SSRN. Here is the abstract:
Dau-Schmidt and Brun on Comparative Law & Economics Kenneth Glenn Dau-Schmidt and Carmen L. Brun (Indiana University School of Law-Bloomington and Independent) have posted Lost in Translation: The Economic Analysis of Law in the United States and Europe (Columbia Journal of Transnational Law, Forthcoming) on SSRN. Here is the abstract:
Wednesday, February 22, 2006
Suja on the Constitutionality of Summary Judgment Suja Thomas (University of Cincinnati Law) has posted Why Summary Judgment is Unconstitutional on SSRN. Here is the abstract:
Wednesday Calendar
University College, London, Faculty of Laws: Dr Phoebe Okowa, QMUL, ‘The use of force in the Congo’ Villanova Law: Christopher Borgen, St. John's University School of Law USC-Caltech Participatory Democracy Workshop: Archon Fung (The John F. Kennedy School of Government, Harvard University), Practical Reasoning About Institutions: Governance Innovations in the Development of Democratic Theories Oxford Public Law Discussion Group: Paul Craig, Human Rights, the EU, the ECHR and the Bosphorus Case Oxford Criminology Seminar Series: Yvonne Jewkes, A prison Tale: The Role of Empathy and Emotion in the Formulation of Knowledge NYU Legal History: James Whitman, Professor, Yale Law School, "The Origins of Reasonable Doubt: Religious Roots of the Criminal Trial" Tuesday, February 21, 2006
Tuesday Calendar
University of Texas Law: Sanford Levinson, University of Texas Law, Disenchantment & Desire: What is to be Done University of Alabama Law: Hans Baade, University of Texas University College, London, Faculty of Laws: The Honourable Justice Michael Kirby AC CMG and Professor Ronald Dworkin QC, Al-Kateb v Godwin (Decision of the High Court of Australia, 6 August 2004 Northwestern Constitutional Theory: Stephen Siegel, Distinguished Research Professor of Law, DePaul University, "The Origin of the Compelling State Interest Test and Strict Scrutiny" NYU Law: Mattias Kumm. Marquette Law: Coleen Barger, University of Arkansas at Little Rock, In-Classroom Assessment of Students London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Worrall (LSE), Evidence and ethics in medical trials University of London School for Advanced Science, Institute of Philosophy Conference and Seminar Series: Larry Temkin (Rutgers), Thinking About the Needy. Lewis & Clark Law: Erik Luna, University of Utah, Deadly Judgment: Discretion, Discrimination, and Error in American Capital Punishment Chicago IP Colloquium: Professor Joseph Liu, Boston College Law School, Copyright and Consumer-Enabling Technologies Hofstra Law: Anita Allen, University of Pennsylvania Law School, “Disrobed: The Constitution of Modesty” Program Announcement: Metaphysics, Ethics, and Politics
Monday, February 20, 2006
Monday Calendar
University of Texas Law: Ronen Avraham (Northwestern), The Impact of Tort Reforms on Medical Malpractice awards, 1991-1998 (with Albert Yoon) Aristotelian Society (London): Jennifer Saulm Pornography, Speech Acts and Context American University: Program on Intellectual Property and the Public Interest Columbia Law & Economics: Michael Abramowicz, The George Washington University Law School, "Patent Auctions" Call for Papers: Reclaiming the First Amendment
Thank you to the University of Virginia . . . and especially David Tabachnick and Kevin Kordana for a wonderful conference on political philosophy and private law. Travel to and from Charlottesville was especially difficult and time consuming, and as a result, I am behind on some blog related tasks. Regular posts should resume this evening. Conference Announcement: Survival & Sustainability in Nicosia
Sunday, February 19, 2006
Legal Theory Calendar
University of Texas Law: Ronen Avraham (Northwestern), The Impact of Tort Reforms on Medical Malpractice awards, 1991-1998 (with Albert Yoon) Aristotelian Society (London): Jennifer Saulm Pornography, Speech Acts and Context American University: Program on Intellectual Property and the Public Interest Columbia Law & Economics: Michael Abramowicz, The George Washington University Law School, "Patent Auctions"
University of Texas Law: Sanford Levinson, University of Texas Law, Disenchantment & Desire: What is to be Done University of Alabama Law: Hans Baade, University of Texas University College, London, Faculty of Laws: The Honourable Justice Michael Kirby AC CMG and Professor Ronald Dworkin QC, Al-Kateb v Godwin (Decision of the High Court of Australia, 6 August 2004 Northwestern Constitutional Theory: Stephen Siegel, Distinguished Research Professor of Law, DePaul University, "The Origin of the Compelling State Interest Test and Strict Scrutiny" NYU Law: Mattias Kumm. Marquette Law: Coleen Barger, University of Arkansas at Little Rock, In-Classroom Assessment of Students London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Worrall (LSE), Evidence and ethics in medical trials University of London School for Advanced Science, Institute of Philosophy Conference and Seminar Series: Larry Temkin (Rutgers), Thinking About the Needy. Lewis & Clark Law: Erik Luna, University of Utah, Deadly Judgment: Discretion, Discrimination, and Error in American Capital Punishment Chicago IP Colloquium: Professor Joseph Liu, Boston College Law School, Copyright and Consumer-Enabling Technologies Hofstra Law: Anita Allen, University of Pennsylvania Law School, “Disrobed: The Constitution of Modesty”
University College, London, Faculty of Laws: Dr Phoebe Okowa, QMUL, ‘The use of force in the Congo’ Villanova Law: Christopher Borgen, St. John's University School of Law USC-Caltech Participatory Democracy Workshop: Archon Fung (The John F. Kennedy School of Government, Harvard University), Practical Reasoning About Institutions: Governance Innovations in the Development of Democratic Theories Oxford Public Law Discussion Group: Paul Craig, Human Rights, the EU, the ECHR and the Bosphorus Case Oxford Criminology Seminar Series: Yvonne Jewkes, A prison Tale: The Role of Empathy and Emotion in the Formulation of Knowledge NYU Legal History: James Whitman, Professor, Yale Law School, "The Origins of Reasonable Doubt: Religious Roots of the Criminal Trial"
Yale Law, Economics & Organizations: Professor Charles Calomiris, Columbia, International Business, Relationship Banking and the Pricing of Financial Services Vanderbilt Law: David Hyman, University of Illinois College of Law, "Do Defendants Pay What Juries Award?: Post-Verdict Haircuts in Texas Medical Malpractice Caes, 1988-2003" UCLA Legal Theory Workshop: Daniel Markovits (Yale). University of Texas Alexander Watkins Terrell Centennial Lectureship: John Langbein, Yale University, Understanding the Death of the Private Pension Plan in the United States University of Texas Colloquium on Constitutional and Legal Theory: Rick Pildes (NYU) "Separation of Parties, not Powers" University of Michigan Law & Economics: Michael Abramowicz, George Washington, Patent Auctions University College, London, Faculty of Laws: Dr Oliver Gerstenberg (University of Leeds), ‘The European Convention of Human Rights and Domestic Constitutional Discourse: A Clash of Absolutes’ Oxford Public International Law Discussion Group: Charles Proctor, The Recent US-China Currency Dispute in International Law: Trade and Monetary Relations Oxford Financial Law Discussion Group: Frederique Dahan and John Simpson, Secured Credit Legal Issues in Transition Economies Oxford Law Faculty: Sarah Worthington, Why distinguish between property and contract? Ohio State Law: Arthur Greenbaum, The Role of Judges in Reporting Lawyer Misconduct NYU Colloquium on Tax Policy and Public Finance: Alan Auerbach, Berkeley Economics Department, "Who Bears the Corporate Tax? A Review of What We Know." King's College, London: Rebecca Bennett (Manchester), Should we eradicate disability: a reply to harris. UC Berkeley, Kadish Center: Rae Langton, Professor of Philosophy, MIT, SPEAKER'S FREEDOM AND MAKER'S KNOWLEDGE Georgetown Law & Philosophy: Jonathan Marks (Greenwall Fellow, Georgetown and Johns Hopkins) Fordham Law: Eric A. Posner, Kirkland & Ellis Professor of Law, University of Chicago Law School, "Emergencies and Democratic Failure" Florida State Law: Tracy Higgins, Fordham University Regulatory Feminism Brooklyn Law: David Skeel, University of Pennsylvania Law School, Who Makes the Rules for Hostile Takeovers, and Why? & The Peculiar Divergence of US and UK Takeover Regulation Boston University Law: David Seipp, "Big Legal History and the Hundred-Year Test"
University of Texas Law: John Langbein, Yale University, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials under ERISA University of Georgia International Law Colloquium: Karen Knop (University of Toronto), "Enemies and Outlaws: War and the Public/Private Citizen" University of Georgia Law: Anthony Alfieri (Miami), The Fall of Legal Ethics and the Rise of Risk Management UCLA Media, Entertainment, and Culture Workshop:
Ohio State Legal History: David Gold, A History of the Ohio General Assembly Notre Dame Law: Professor Lisa Heinzerling, Georgetown University Law Center American University Program on Intellectual Property and the Public Interest, Orphan Works (link for webcast) Georgetown Law & Economics: Greg Sidak, Georgetown University Law Center, Should Internet Protocol-Enabled Video Service Provided over a Telephone Network Be Regulated as Cable Service?" Columbia Journal of Gender and Law Symposium: Sexuality and the Law:
Feminist ABC’s of Sex Education by Linda McClain, Hofstra University School of Law Moderator: Professor Ariela Dubler
Transgendered Plaintiffs and Title VII by Jennifer Levi, Western New England College, School of Law Moderator: Professor Suzanne Goldberg
Rethinking Prison Sex: Self-Expression and Safety by Brenda Smith, American University, Washington College of Law Moderator: Professor Philip Genty 2:15pm-3:15pm: Sexuality and Marriage
A Historical Guide to the Future of Marriage for Same-Sex Couples by Suzanne Goldberg, Rutgers School of Law - Newark Moderator: Professor Carol Sanger
The New Politics of Adultery by Brenda Cossman, University of Toronto, Faculty of Law The Expressiveness and (Potential) Gender-Neutrality of Sexuality following Lawrence v. Texas by James Garland, Hofstra University School of Law Moderator: Professor Elizabeth Emens Legal Theory Lexicon: Personhood
Persons and Humans The terms "human" and "person" have related meanings, but as used by most legal theorists, these terms are distinct. Here's one definition of "human":
Consider, for example, the aliens Chewbacca or Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe. Let us stipulate then, that term "human" is a biological term, which refers to all the members of the species homo sapiens and that the term "person" is a normative term, which refers to a moral and/or legal status that creatures or other bearers of human-like capacities can share with normal adult humans. The categories of human and person are involved in some of the most contentious debates in moral, political, and legal theory. Prime among these is the abortion debate. One move that can be made in the abortion debate is simply to deny the distinction between human and person. So it might be the case that the relevant moral and legal category is "human person" and that all members of the species homo sapiens members of this category. Or it might be argued that "human" and "person" are morally and legally distinction categories. If so, it is possible that "fetuses" are unborn humans, but that they are not yet "persons." Legal, Moral, and Natural Persons So far, I have been treating the category of personhood or persons as a single category, but this need not be the case. We can distinguish between three kinds of persons--natural, moral, and legal. It is possible that the not all legal persons are natural persons and vice versa; the category of moral persons is clearly distinct from that of legal persons, but might be considered identical with the category of natural persons. Examples will help. Corporations and governmental units are legal persons--they have legal rights and responsibilities and can sue and be sued, but we do not say that corporations are natural or moral persons. A corporation is not a natural person, because it is nonnatural in the relevant sense. Corporations are artificial or nonnatural because they are the creations of the law. Likewise, all humans are usually considered "natural persons," but not all humans have the full bundle of rights and responsibilities associated with legal persons. For example, infants and incompetents may be unable to sue in their own name and may not bear full legal responsibility for their acts. Legal Personhood The classical discussion of the idea of legal personhood is found in John Chipman Gray's The Nature and Sources of the Law. He began his famous discussion, "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." The question whether an entity should be considered a legal person is reducible to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties. The particular bundle of rights and duties that accompanies legal personhood varies with the nature of the entity. Both corporations and natural persons are legal persons, but they have different sets of legal rights and duties. Nonetheless, legal personhood is usually accompanied by the right to own property and the capacity to sue and be sued. Gray reminds us that inanimate things have possessed legal rights at various times. Temples in Rome and church buildings in the middle ages were regarded as the subject of legal rights. Ancient Greek law and common law have even made objects the subject of legal duties. In admiralty, a ship itself becomes the subject of a proceeding in rem and can be found "guilty." Christopher Stone recently recounted a twentieth-century Indian case in which counsel was appointed by an appellate court to represent a family idol in a dispute over who should have custody of it. The most familiar examples of legal persons that are not natural persons are business corporations and government entities. Gray's discussion was critical of the notion that an inanimate thing might be considered a legal person. After all, what is the point of making a thing-- which can neither understand the law nor act on it--the subject of a legal duty? Moreover, he argued that even corporations are reducible to relations between the persons who own stock in them, manage them, and so forth. Thus, Gray insisted that calling a legal person a "person" involved a fiction unless the entity possessed "intelligence" and "will." Can we say that corporations possess "intelligence" and "will"? The answer to that question is controversial among legal theorists. The orthodox position is that the corporation itself is a legal fiction; the humans who make up the corporation may have intelligence and will, but the corporation itself does not. But some might argue that the properties of the corporation are not reducible to the properties of the individuals who make up the corporation. Corporations may have "a mind of their own," at least according to some theorists. Moral Personhood "Legal personhood" is controversial, but "moral personhood" is one of the most contested ideas in contemporary legal, moral, and political theory. This large debate is not easy to summarize, but one of the crucial issues concerns the criteria for moral personhood. What attributes would make some life form (or even a robot) a moral person? Here are some of the possibilities: Conclusion "Personhood" is a fundamental notion for legal theorists. "Legal personhood" plays an important role in legal doctrine, and "moral personhood" plays a fundamental role in moral and political theory. The purpose of this post has been to give you a very rough sense of some of the issues that surround these concepts. More reading can be found in the bibliography. Bibliography Saturday, February 18, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends An Introduction to Political Philosophy by Jonathan Wolff. Here's a blurb:
Download of the Week The Download of the Week is Privatization: The Road To Democracy? by Carol M. Rose. Here is the abstract:
Friday, February 17, 2006
Greetings from Charlottesville I'm attending the conference on Political Philosophy and Private Law at the University of Virignia, today & tomorrow. Because of travel woes, I was unable to blog this morning, but postings should resume their regular flow tomorrow. The conference has been absolutely terrific so far, with a wonderful and deeply interesting paper by Jody Kraus, not to mention Arthur Ripstein, whose writings about the connection between private law, Kant, and Rawls are surely among the very finest. I hope to post some comments about the conference this evening! For a detailed conference schedule, scroll up for Friday. Saturday's schedule will appear tomorrow morning with the Saturday Calendar. Friday Calendar
Update: University of Georgia, International Law Colloquium: Mark Drumbl (Washington & Lee): "Atrocity and Punishment" Georgetown Law & Economics: Alan Schwartz, Yale Law School Boston College Law: Marjorie Kornhauser, W.R. Irby Professor of Law, Tulane University School and Scholar-in-Residence, Boston College Law School. Royal Institute of Philosophy, London: Ian Hacking, The Decline and Fall of Natural Kinds University of Georgia Law: Julie Seamon (Emory): The Expert Witness as Stealth Fact-Finder: Hidden Hearsay, Confrontation, and Jury Determination of Facts University of Virginia, Conference on Political Philosophy and Private Law:
Thursday, February 16, 2006
Thursday Calendar
Oxford Jurisprudence Discussion Group: Amit Pundik, Statistical Evidence: An Investigation of Its Nature and Its Usage in the Criminal Context Stanford Law & Economics: John J. Donohue III (Yale Law School), "Uses and Abuses of Empirical Evidence in the Death Penalty Debate" University of Michigan Law & Economics: Miriam Bitton, Irell & Manella LLP, A New Outlook on the Economic Dimension of the Database Protection Debate Mississippi College School of Law, Federalist Society: Debate on "Obesity in America: The State's Right to Pass Laws Requiring the Restaurant Industry to Provide Nutritional Information to Consumers" between Todd Zywicki & Michael McCann:
Michael A. McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling, 2004 Wisconsin Law Review 1161 (2004) NYU Law, Colloquium on Tax Law & Public Finance: Lee Anne Fennell, Illinois, “Taxation Over Time.” Fordham Law: Dorothy E. Roberts, Northwestern University School of Law, The Impact of High Rates of Child Welfare Agency Involvement in African American Neighborhoods Georgetown Intellectual Property: Olufunmilayo Arewa, Copyright, Borrowing, and Unfair Use Yale Legal Theory Workshop: Stephen Greenblatt, Harvard (English). Boston University Law: Bob and Ann Seidman. Florida State University Law: Elizabeth Trujillo, Detroit-Mercy. UC Berkeley, Kadish Center: Tommie Shelby, John L. Loeb Associate Professor of Social Sciences and of African and African American Studies, Harvard University, JUSTICE, DEVIANCE, AND THE DARK GHETTO William Mitchell Law, National Security Forum: Judge Gerald Rosen, U.S. District Court. Marquette Law: Mark Umbreit, Minnesota, RJ Movement: Int’l Developments Ohio State Law: Adrienne Dale Davis, University of North Carolina, The Sexual Economy of American Slavery Ibrahim on Animal Welfare Darian Ibrahim (University of Arizona) has posted The Anticruelty Statute: A Study in Animal Welfare (Journal of Animal Law & Ethics, Vol. 1, 2006) on SSRN. Here is the abstract:
McCann & Rosen on Age Restrictions in Sports Michael McCann & Joseph Rosen have posted Legality of Age Restrictions in the NBA and the NFL on SSRN. Here is the abstract:
Wednesday, February 15, 2006
Thursday Calendar
UCLA Legal History: Claire Priest, Northwestern University School of Law, "Creating An American Property Law: Alienability and Its Limits in American History" NYU Legal History: Reva Siegel, Nicholas deB Katzenbach Professor of Law, Yale Law School, “Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the De Facto ERA” University of Texas Law: Stanley Chodorow, Department of History, University of California--San Diego, The Distribution of Law Books in European Libraries in the 12th Century Cardozo Law: David Nimmer, Improving and Creating Procedures for Fair Use. Additional presentation by Marjorie Heins. Commentaries from Hugh Hansen, Margaret Jane Radin Villanova Law: Brad Wendel, Cornell Law School William Mitchell Law, Public Square Lecture Series: Hauwa Ibrahim - Quest for Justice in Nigeria. Alces on the Impossibility of Contract Peter A. Alces (College of William and Mary - Marshall-Wythe School of Law) has posted The Moral Impossibility of Contract on SSRN. Here is the abstract:
Robinson on Fair Notice & Fair Adjudication Paul H. Robinson (University of Pennsylvania Law School) has posted Fair Notice and Fair Adjudication: Two Kinds of Legality (University of Pennsylvania Law Review, Vol. 154, pp. 335-398, December 2005) on SSRN. Here is the abstract:
Hunter on Equal Protection Nan D. Hunter (Brooklyn Law School) has posted Twenty-First Century Equal Protection: Making Law in an Interregnum (Georgetown Journal of Gender and the Law, Forthcoming) on SSRN. Here is the abstract:
Selmi on Disparate Impact Michael Selmi (The George Washington University Law School) has posted Was the Disparate Impact Theory a Mistake? (UCLA Law Review, Vol. 53, p. 701, 2006) on SSRN. Here is the abstract:
Tuesday, February 14, 2006
Tuesday Calendar
University of Chicago Law & Economics: Anup Malani, Surveillance and Reporting of Disease Outbreaks: Private Incentives and WHO Policy Levers University of Texas Law: William Scheuerman, Indiana University, "Emergency Powers and the Rule of Law After 9/11" University of Pennsylvania Tax Policy Workshop: Alan Auerbach, Who Bears the Corporate Tax? A Review of What we Know. Loyola University Chicago School of Law: Professor Stephanie Stern, Loyola Chicago, "Conservation Incentives" University College, London, Conference, Law, Mind, and Brain:
Professor Sean Spence, Professor of General Adult Psychiatry, University of Sheffield Brain Imaging and Courtroom Evidence Professor Neal Feigenson, Quinnipiac University School of Law
Professor Katherine Hunt Federle, Paul Skendelas, Professor of Law and Director of Justice for Children Project, Moritz College of Law, Ohio State University, Columbus, Ohio, and Assistant Public Defender, Franklin County, Ohio, Pictures, Words and the Law Professor Christina Spiesel, Senior Research Scholar in Law, Yale Law School, Is Law Practical? Dr Claire Valier, Lecturer in Law, Birkbeck, University of London
Dr Florian Wagner-von Papp, Lecturer in Laws, UCL, Judicial Constructivism and Artificial Intelligence Applied to Law Dr Enrique Caceres, Institute for Legal Research, Autonomous University of Mexico
Professor Terry Maroney, Law School, University of Southern California, and Dr. Elizabeth A. Phelps, New York University, Department of Psychology, Psychological Trauma and the law on Human Trafficking Dr Natalia Walter, Consultant, Project REACH, The Trauma Center and Dr Jose Hidalgo, Psychology Department, University of Seville Hasen on Bad Legislative Intent Rick Hasen (Loyola, Los Angeles) has posted Bad Legislative Intent on SSRN. Here is the abstract:
Halpin on the Methodology of Jurisprudence Andrew Halpin (Swansea University School of Law) has posted The Methodology of Jurisprudence: Thirty Years Off the Pointm (Canadian Journal of Law and Jurisprudence, Vol. 19, pp. 67-105, 2006) on SSRN. Here is the abstract:
Kirgis on the Contractarian Model of Arbitration Paul F. Kirgis (St. John's University - School of Law) has posted The Contractarian Model of Arbitration and its Implications for Judicial Review of Arbitral Awards on SSRN. Here is the abstract:
Conference Announcement: Orphan Works at American University
Monday, February 13, 2006
Weekend Update On Saturday the Download of the Week was The Politics of Judicial Review by Barry Friedman and the Legal Theory Bookworm recommended The Founders' Constitution, edited by Philip B. Kurland & Ralph Lerner. On Sunday, the Legal Theory Lexicon entry was Rules, Principles, and Standards. As usual, the Sunday Legal Theory Calendar rounded up the talks and conferences for this week. Alexander and Solum on Kramer Larry Alexander (University of San Diego) and I have posted Popular? Constitutionalism? (Harvard Law Review 2005) on SSRN. Here is the abstract:
Monday Calendar
University of Texas Law: Scott Baker (North Carolina) "Deterrence, Lawsuits, and Litigation Outcomes Under Court Errors Georgetown Law & Philosophy: Paul Robinson (Law, University of Pennsylvania) Case Western University School of Law: Adam Mossoff, "Who Cares What Thomas Jefferson Thought About Patents: Reevaluating the Patent 'Privilege' in Historical Context." Updated: NYU Law: Lee Fennell, ""Property Unbound: Strategy and Choice in Metropolitan Neighborhoods" & "Property in Neighbors?" from "Properties of Concentration." University of Alabama Law: Sharon Davies, Ohio State University Southern Illinois Law: Conference, Telecomm Act Retrospective University College, London, Conference, Law, Mind, and Brain:
Dr Ben Seymour, Dr Tania Singer, Professor Ray Dolan, Institute of Neurology, UCL, The Evolution of Retribution Judge Morris Hoffman, District Judge, Denver, Colorado, Why Distinguish ‘Mental" and ‘Physical’ Illness in the Law of Involuntary Treatment? Professor John Dawson, Professor of Law, University of Otago, Dr George Szmukler, Dean, Institute of Psychiatry, King’s College London.
Professor Deborah Denno, Professor of Law, Fordham University School of Law, Problems of Mind, Body and Brain in the Criminal Law Dr Lisa Claydon, Senior Lecturer, Head of Criminal Justice Unit, University of West of England, Reflections of Responsibility James Grant, Lecturer in Law, University of the Witwatersrand
Dean Mobbs & Professor Chris Frith, Dept of Imaging Neuroscience, Institute of Neurology, UCL and Dr Hakwan Lau, Dept of Psychology, University of Oxford, How do Humans think about Right and Wrong? Neural Correlates of Normative Judgement Dr Kristin Prehn, Dept of Psychology, Humboldt University, Berlin, Virtuous Foundations: The Law, Moral Reasoning and the Neural Mechanisms of Moral Cognition Dr William Casebeer, Naval Postgraduate School, Monterey, California 4.30pm SESSION IVA: Why do good people steal Intellectual Property? Looking for answers in the Brain Professor Oliver Goodenough, Professor of Law, Vermont Law School and the Gruter Institute, Accountability and Legal Responses to Medical Error Professor Edward Dauer, Dean Emeritus, Sturm College of Law of the University of Denver, and Visiting Professor, California Western School of Law, San Diego, Equality in Exchange Revisited: Why some unequal bargains are (somewhere) considered as unfair and others (elsewhere) Dr Bart Du Laing, Centre for Legal Theory, Katholieke Universiteit, Brussels, Just and Efficient Compensation for Governmental Takings for Property Professor Jeffrey E Stake, Indiana University, School of Law
Professor Peter H Huang, Professor of Law, Temple University, Member, School of Social Science, Institute for Advanced Study, Freedom of Memory Professor Adam Kolber, University of San Diego, School of Law Conference Announcement: Political Philosophy and Private Law at Virginia I want to shout out an extra big plug for this conference, which I am really looking forward to. Here's the announcement:
11:00 am-12:15 pm Panel 1: Private Order and Public Justice: Kant and Rawls
Comment: John G. Bennett (Rochester, Philosophy)
Comment: George Rutherglen (Virginia, Law)
Comment: Steven Walt (Virginia, Law)
Comment: Barbara Fried (Stanford, Law)
Comment: Terrance O’Reilly (Willamette, Law) 2:15-3:30 pm Panel 6: Libertarianism, Utility and Economic Competition
Comment: A. John Simmons (Virginia, Law and Philosophy)
Rubel on Privacy the Patriot Act Alan Rubel (University of Wisconsin, Madison - Department of Philosophy) has posted Privacy and the USA Patriot Act: Rights, the Value of Rights, and Autonomy (Law and Philosophy, 2006) on SSRN. Here is the abstract:
Rose on Privatization & Democracy Carol M. Rose (University of Arizona - James E. Rogers College of Law) has posted Privatization: The Road To Democracy? on SSRN. Here is the abstract:
Funk on Intimidation and the Internet William F. Funk (Lewis & Clark Law School) has posted Intimidation and the Internet (Penn State Law Review, Forthcoming) on SSRN. Here is the abstract:
Mendelson on Guidance Documents and Administrative Agencies Nina A. Mendelson (University of Michigan Law School) has posted Regulatory Beneficiaries and Informal Agency Policy Making on SSRN. Here is the abstract:
Sunday, February 12, 2006
Legal Theory Calendar
University of Texas Law: Scott Baker (North Carolina) "Deterrence, Lawsuits, and Litigation Outcomes Under Court Errors Georgetown Law & Philosophy: Paul Robinson (Law, University of Pennsylvania) Case Western University School of Law: Adam Mossoff, "Who Cares What Thomas Jefferson Thought About Patents: Reevaluating the Patent 'Privilege' in Historical Context." NYU Law: Lee Fennell University of Alabama Law: Sharon Davies, Ohio State University Southern Illinois Law: Conference, Telecomm Act Retrospective University College, London, Conference, Law, Mind, and Brain:
Dr Ben Seymour, Dr Tania Singer, Professor Ray Dolan, Institute of Neurology, UCL, The Evolution of Retribution Judge Morris Hoffman, District Judge, Denver, Colorado, Why Distinguish ‘Mental" and ‘Physical’ Illness in the Law of Involuntary Treatment? Professor John Dawson, Professor of Law, University of Otago, Dr George Szmukler, Dean, Institute of Psychiatry, King’s College London.
Professor Deborah Denno, Professor of Law, Fordham University School of Law, Problems of Mind, Body and Brain in the Criminal Law Dr Lisa Claydon, Senior Lecturer, Head of Criminal Justice Unit, University of West of England, Reflections of Responsibility James Grant, Lecturer in Law, University of the Witwatersrand
Dean Mobbs & Professor Chris Frith, Dept of Imaging Neuroscience, Institute of Neurology, UCL and Dr Hakwan Lau, Dept of Psychology, University of Oxford, How do Humans think about Right and Wrong? Neural Correlates of Normative Judgement Dr Kristin Prehn, Dept of Psychology, Humboldt University, Berlin, Virtuous Foundations: The Law, Moral Reasoning and the Neural Mechanisms of Moral Cognition Dr William Casebeer, Naval Postgraduate School, Monterey, California 4.30pm SESSION IVA: Why do good people steal Intellectual Property? Looking for answers in the Brain Professor Oliver Goodenough, Professor of Law, Vermont Law School and the Gruter Institute, Accountability and Legal Responses to Medical Error Professor Edward Dauer, Dean Emeritus, Sturm College of Law of the University of Denver, and Visiting Professor, California Western School of Law, San Diego, Equality in Exchange Revisited: Why some unequal bargains are (somewhere) considered as unfair and others (elsewhere) Dr Bart Du Laing, Centre for Legal Theory, Katholieke Universiteit, Brussels, Just and Efficient Compensation for Governmental Takings for Property Professor Jeffrey E Stake, Indiana University, School of Law
Professor Peter H Huang, Professor of Law, Temple University, Member, School of Social Science, Institute for Advanced Study, Freedom of Memory Professor Adam Kolber, University of San Diego, School of Law
University of Chicago Law & Economics: Anup Malani, Surveillance and Reporting of Disease Outbreaks: Private Incentives and WHO Policy Levers University of Texas Law: William Scheuerman, Indiana University, "Emergency Powers and the Rule of Law After 9/11" University of Pennsylvania Tax Policy Workshop: Alan Auerbach, Who Bears the Corporate Tax? A Review of What we Know. University College, London, Conference, Law, Mind, and Brain:
Professor Sean Spence, Professor of General Adult Psychiatry, University of Sheffield Brain Imaging and Courtroom Evidence Professor Neal Feigenson, Quinnipiac University School of Law
Professor Katherine Hunt Federle, Paul Skendelas, Professor of Law and Director of Justice for Children Project, Moritz College of Law, Ohio State University, Columbus, Ohio, and Assistant Public Defender, Franklin County, Ohio, Pictures, Words and the Law Professor Christina Spiesel, Senior Research Scholar in Law, Yale Law School, Is Law Practical? Dr Claire Valier, Lecturer in Law, Birkbeck, University of London
Dr Florian Wagner-von Papp, Lecturer in Laws, UCL, Judicial Constructivism and Artificial Intelligence Applied to Law Dr Enrique Caceres, Institute for Legal Research, Autonomous University of Mexico
Professor Terry Maroney, Law School, University of Southern California, and Dr. Elizabeth A. Phelps, New York University, Department of Psychology, Psychological Trauma and the law on Human Trafficking Dr Natalia Walter, Consultant, Project REACH, The Trauma Center and Dr Jose Hidalgo, Psychology Department, University of Seville
UCLA Legal History: Claire Priest, Northwestern University School of Law, "Creating An American Property Law: Alienability and Its Limits in American History" NYU Legal History: Reva Siegel, Nicholas deB Katzenbach Professor of Law, Yale Law School, “Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the De Facto ERA” University of Texas Law: Stanley Chodorow, Department of History, University of California--San Diego, The Distribution of Law Books in European Libraries in the 12th Century Cardozo Law: David Nimmer, Improving and Creating Procedures for Fair Use. Additional presentation by Marjorie Heins. Commentaries from Hugh Hansen, Margaret Jane Radin Villanova Law: Brad Wendel, Cornell Law School William Mitchell Law, Public Square Lecture Series: Hauwa Ibrahim - Quest for Justice in Nigeria.
Oxford Jurisprudence Discussion Group: Amit Pundik, Statistical Evidence: An Investigation of Its Nature and Its Usage in the Criminal Context Stanford Law & Economics: John J. Donohue III (Yale Law School), "Uses and Abuses of Empirical Evidence in the Death Penalty Debate" University of Michigan Law & Economics: Miriam Bitton, Irell & Manella LLP, A New Outlook on the Economic Dimension of the Database Protection Debate University of North Dakota Indian Law: Patrice H. Kunesh, "The Cultural Context of Banishment in a Modern Tribal Justice System" NYU Law, Colloquium on Tax Law & Public Finance: Lee Anne Fennell, Illinois, “Taxation Over Time.” Fordham Law: Dorothy E. Roberts, Northwestern University School of Law, The Impact of High Rates of Child Welfare Agency Involvement in African American Neighborhoods Georgetown Intellectual Property: Olufunmilayo Arewa, Copyright, Borrowing, and Unfair Use Yale Legal Theory Workshop: Stephen Greenblatt, Harvard (English). Boston University Law: Bob and Ann Seidman. Florida State University Law: Elizabeth Trujillo, Detroit-Mercy. UC Berkeley, Kadish Center: Tommie Shelby, John L. Loeb Associate Professor of Social Sciences and of African and African American Studies, Harvard University, JUSTICE, DEVIANCE, AND THE DARK GHETTO William Mitchell Law, National Security Forum: Judge Gerald Rosen, U.S. District Court. Marquette Law: Mark Umbreit, Minnesota, RJ Movement: Int’l Developments Ohio State Law: Adrienne Dale Davis, University of North Carolina, The Sexual Economy of American Slavery
Update: University of Georgia, International Law Colloquium: Mark Drumbl (Washington & Lee): "Atrocity and Punishment" Georgetown Law & Economics: Alan Schwartz, Yale Law School Boston College Law: Marjorie Kornhauser, W.R. Irby Professor of Law, Tulane University School and Scholar-in-Residence, Boston College Law School. Royal Institute of Philosophy, London: Ian Hacking, The Decline and Fall of Natural Kinds University of Georgia Law: Julie Seamon (Emory): The Expert Witness as Stealth Fact-Finder: Hidden Hearsay, Confrontation, and Jury Determination of Facts University of Virginia, Conference on Political Philosophy and Private Law:
Legal Theory Lexicon: Rules, Standards, and Principles
We can slice and dice legal norms in various ways. In this post, we will investigate the idea that legal norms can be sorted into three general classes: rules, standards, and principles. Let's stipulate to the following definitions to get the discussion off the ground: Rules Although the phrase "legal rule" can be used in a broad sense, to refer to all legal norms, whether they be case in the form of a bright-line rule, a standard that in the form of a balancing test, or even an abstract principle, there is also a narrower sense of "rule" that distinguishes rules from standards and principles. Rules themselves vary--let's use hard and soft to refer to the poles of a continuum. A rule is harder if both the conditions for its application and the consequences that follow are defined by bright-line distinctions that admit of easy application. The rule that disqualifies persons who are not 35 years of age is quite hard or rigid. Rules become softer as they criterion for the application and/or the consequences to which they lead become fuzzier. If the constitution had limited the presidency to "adults," then there could have been cases in which the question whether a particular candidate was unclear. Twelve year olds are clearly not adults but twenty-five year olds clearly are. In between, the necessity of drawing a somewhat arbitrary line makes the "adult" rule relatively softer than the "35-year old" rule. Standards Standards are less constraining than even "soft" rules. Whereas a rule defines a triggering condition and a consequence, a standard may define a set of relevant considerations and options. One familiar example of a standard is provided by the fairness component of the International Shoe test for personal jurisdiction. That test requires a court to find that a state's assertion of personal jurisdiction violates the Due Process Clause on the basis of a give factor balancing test, which refers to the defendant's interest, the plaintiff's interest, the interest of the forum, judicial efficiency and economy, and substantive policy concerns. Like rules, standards themselves vary in their capacity to guide and constrain the decision-making process. Some standards give the decision maker substantial guidance, by specifying relatively specific and concrete factors the decision maker should consider and the relative weight or importance of those factors. Other standards are much more open ended, requiring consideration of factors that are general and abstract. Standards that refer to "all the circumstances," "the interests of justice," or "equitable considerations" are particularly soft. Standards that require the evaluation of "cost to the defendant" or "serious invasions of privacy" are relatively harder, providing greater constraint and guidance. By way of illustration, consider eligibility for the presidency once again. A rule based approach might limit eligibility to persons of a certain age or to "adults." A standard might specify that the only persons who are "sufficiently mature" may occupy the office of President. This standard is relatively open-ended, and it might disqualify some sixty-year olds from the presidency but allow some 20 year olds to serve. Principles Principles are quite different from both rules and standards--at least on the basis of the definitions that we are using. Both rules and standards provide a framework that is, in theory, sufficient for resolving a particular issue in a legal dispute. But as we are using the term, a "principle" only provides guidance for the interpretation or application of a rule or standard. Principles by themselves do not resolve legal issues. This sense of principle is illustrated by Ronald Dworkin's example of the principle that no one should be allowed to profit from their own wrong, drawn from the case of Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case, the statute of wills would have allowed a murderer to inherit from his victim, but the New York Court of Appeals concluded that the statute should be given an equitable interpretation in light of the common law principle against wrong doers profiting from their wrongs. This principle is not a rule: the law does permit wrong doers to profit from their wrongs in a variety of circumstances. Rather, this general and abstract principle provided guidance in the interpretation and construction of a rule--in Riggs, the rule provided by the statute of wills. (This example is drawn from Ronald Dworkin's famous essay Hard Cases.) The Pros and Cons of Rules, Standards, and Principles What are the pros and cons of rules, standards, and principles? When you have identified a candidate legal norm, when should you argue that the norm should be formulated as a rule, a standard, or a principle? In his famous 1985 article, Pierre Schlag provided this example:
References
Ronald Dworkin, Hard Cases in Taking Rights Seriously (1977). Herbert Hart & Albert Sacks, The Legal Process (unpublished manuscript tent. ed. 1958). Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harvard Law Review 1685 (1976). Saturday, February 11, 2006
Thanks Tony! I'm sure that everyone who paticipated in the symposium on unenumerated rights will join me in thanking Tony Falcone and all of the other students from the University of Pennsylvania's Journal of Constitutional Law for a extraordinarily well-organized and stimulating event. All of the panels were great, but the interchange between Frank Michelman and Randy Barnett on theories of legitimacy was a special treat--one of those wonderful moments when an academic conference comes alive as two of the most significant constitutional theorists produced the equivalent of whole pages of densely argued text in real time, right before our eyes. Cool! Legal Theory Bookworm The Legal Theory Bookworm recommends The Founders' Constitution, edited by Philip B. Kurland & Ralph Lerner. This is one of the great bargains in the history of really wonderful books to have on your shelf. $60.00 for the whole five volumes of documentary history of the Constitution. These days, there are a number of online databases that have greatly expanded access to the original sources and The Founder's Constitution is not as "essential" as it was when it was first published. But it is still a wonderful source for browsing and thinking about the Constitution. You can also access the materials on line--follow this link. Here's a blurb:
Download of the Week The Download of the Week is The Politics of Judicial Review by Barry Friedman. Here is the abstract:
Friday, February 10, 2006
See you at Penn I'll be at the Universityof Pennsylvania Journal of Constitutional Law's 2006 Symposium: "The Future of Unenumerated Rights" today! See you there. Friday Calendar
UCLA Law: Allison Marston Danner, Vanderbilt University Law School, "When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War" Notre Dame Law: Professor William H. Page, Marshall M. Criser Eminent Scholar University of Florida Fredic G. Levin College of Law. Boston College Law: Shimon Shetreet, Professor of Law, The Hebrew University of Jerusalem, Faculty of Law USC Law: FISCAL CHALLENGES: AN INTERDISCIPLINARY APPROACH TO BUDGET POLICY
Solove & Hoofnagle on Privacy Protection Daniel J. Solove and Chris Jay Hoofnagle (The George Washington University Law School and Electronic Privacy Information Center - West Coast Office) have posted A Model Regime of Privacy Protection (Version 3.0) (Illinois Law Review, Vol. 2006, p. 357, 2006) on SSRN. Here is the abstract:
Czarnezki on Judicial Selection Jason J. Czarnezki (Marquette University - Law School) has posted A Call for Change: Improving Judicial Selection Methods (Marquette Law Review, Vol. 89, p. 169-178, 2005) on SSRN. Here is the abstract:
Teitelbaum on Supreme Court Terms Joshua C. Teitelbaum (Cornell University) has posted Age, Tenure and Productivity of the U.S. Supreme Court: Are Term Limits Necessary? (Florida State University Law Review, Forthcoming) on SSRN. Here is the abstract:
Lichtman on Captive Audiences Douglas Lichtman (University of Chicago Law School) has posted Captive Audiences and the First Amendment on SSRN. Here is the abstract:
Orbach on Rejecting Government Benefits Barak Y. Orbach (University of Arizona - James E. Rogers College of Law) has posted Unwelcome Benefits: Why Welfare Beneficiaries Reject Government Aid? (Law and Inequality: A Journal of Theory and Practice, Vol. 24, No. 107, 2006) on SSRN. Here is the abstract:
Thursday, February 09, 2006
Links on Academic Blogging There is a wonderful collection of links on Academic Blogging on 3L Epiphany. Here's a snippet from the introduction:
Thursday Calendar
University of Michigan, Law & Economics: Peter DiCola, Michigan, An Economic Model of Sampling, Cover Versions, and Musical Collage University of Texas Law: Tom Merrill (Columbia) "The Accardi Principle" Villanova Law: Lawrence Joseph, St. John’s University School of Law. University of North Dakota, Indian Law Center: Erma J. Vizenor, "Tribal Sovereignty, the Federal Trust Responsibility, and Constitutional Reform" University College, London, Current Legal Problems Lecture: Dr Nigel Simmonds (Corpus Christi College, Cambridge, ‘Justice and Legality’ UCLA Legal Theory Workshop: Daryl Levinson, Professor of Law, Harvard Law School Oxford Public International Law Discussion Group: Dr. Rhiannon Talbot, What can Iraq, 7/7, Northern Ireland and the Terrorism Bill Teach Us:Building National Security and Human Rights as a Counter-Terrorism Strategy NYU Tax Policy & Public Finance: Stacy Dickert-Conlin, Michigan State University Economics Department, "Love at What Price? Estimating the Value of Marriage." UC Berkeley, Kadish Center: Kent Greenawalt Florida State Law: Bethany Berger, Wayne State University Law School (Hirsch) Patterson & Afilalo on Trade & the Order of States Dennis Patterson & Ari Afilalo (Rutgers University School of Law, Camden) have posted Statecraft, Trade, and the Order of States (Chicago Journal of International Law, Vol. 6, p. 725, Winter 2006) on SSRN. Here is the abstract:
Rothstein & Yoon on Law School Mismatch Jesse Rothstein and Albert Yoon (Princeton University - Department of Economics and Northwestern University - School of Law) have posted Mismatch in Law School on SSRN. Here is the abstract:
Backer on the Autonomous Global Enterprise Larry Cata Backer (Pennsylvania State University - The Dickinson School of Law) has posted The Autonomous Global Enterprise: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality (Tulsa Law Journal, Forthcoming) on SSRN. Here is the abstract:
Storrow on Judicial Discretion and Wills Richard F. Storrow (Pennsylvania State University - The Dickinson School of Law) has posted Judicial Discretion and the Disappearing Distinction Between Will Interpretation and Construction (Case Western Reserve Law Review, Vol. 56, No. 65, 2005) on SSRN. Here is the abstract:
Robertson on Schiavo John A. Robertson (University of Texas Law School) has posted Schiavo & Its (In)Significance (Stetson Law Review, Forthcoming) on SSRN. Here is the abstract:
Wednesday, February 08, 2006
Scalia's Juirsprudence on CSPAN2 On Saturday, February 11 at 12:00 pm, CSPAN will feature Antonin Scalia's Jurisprudence: Text and Tradition by Ralph Rossum. Law, Mind, and Brain at University College, London
Wednesday Calendar
University of Alabama Law: Hanoch Dagan, Tel Aviv University. University College, London, Colloquium in Legal and Social Philosophy: Professor John Broome, ‘Ought’ Oxford Public Law Discussion Group: Richard Ekins, "Parliamentary Sovereignty and the House of Lords in Jackson" Oxford Criminology Seminar Series: Nicole Hahn Rafter, H.J. Eysenck and the Biological Turn in 20th Century Criminology NYU Legal History: Peter Charles Hoffer, Research Professor, University of Georgia “An Essential History of the United States Supreme Court” UC Hastings: Discussion of Active Liberty by Stephen Breyer and A Matter of Interpretation by Antonin Scalia to be led by Professors Rory Little and Vik Amar and US District Court Judge Charles R. Breyer. Friedman on the Politics of Judicial Review Barry Friedman (New York University School of Law) has posted The Politics of Judicial Review (Texas Law Review, Vol. 84, p. 257, 2005) on SSRN. Here is the abstract:
Penalver on Property Metaphors Eduardo M. Penalver (Fordham University School of Law Property Metaphors and Kelo v. New London: Two Views of the Castle on SSRN. Here is the abstract:
Backer on Ideology & Sovereign Debt Larry Cata Backer (Pennsylvania State University - The Dickinson School of Law) has posted Ideologies of Globalization and Sovereign Debt: Cuba and the IMF (Penn State International Law Review, Vol. 24, 2006) on SSRN. Here is the abstract:
Call for Papers: Joint Session 2006
Tuesday, February 07, 2006
Two by Rappaport--Moved to the Top of the Blog with Updated Links Mike Rappaport has posted Where is William Eskridge Now That Alberto Gonzales Needs Him? & I Intend Not To Torture Unless I Change My Mind. Here's a taste of the second post:
New from Yale The January 2006 issue of the Yale Law Journal is available with full text online. Here are the articles, click on the title for full-text PDF files:
Journal Announcement: Criminal Law and Philosophy
Conference Announcement: Law & Morality and William and Mary
Series Announcement: London Legal and Political Philosophy Seminar
Roberts on Scottish Common Sense Philosophy and Legal Positivism Thomas Roberts (European University Institute) has posted Legal Positivism and Scottish Common Sense Philosophy (The Canadian Journal of Law and Jurisprudence, Vol. XVIII, No. 2, July 2005) on SSRN. Here is the abstract:
Mullter on the Japanese American Cases Eric L. Muller (University of North Carolina at Chapel Hill - School of Law) has posted The Japanese American Cases - A Bigger Disaster than we Realized (Howard Law Review, 2006) on SSRN. Here's the abstract:
Tuesday Calendar
Vanderbilt Law: Curt Welling, President & CEO, AmeriCares, "From Sudan to Tsunami: Reflections of a Recovering Investment Banker" Oxford EC Law Discussion Group: Liz Fisher, Opening up Pandora's Box: Contextualising the Precautionary Principle in the EU Oxford Human Rights Discussion Group: Jan van Zyl Smit, Reading Down Under the HRA 1998 Oxford Law Faculty: Emily Campbell, "Inheritance Tax and the Pre-Owned Assets Tax" Oxford Law Faculty: Professor Jonathan Rickford, The implementation of the Takeover Directive and its implications" Marquette Law: Gary Gildin, Penn State—Dickinson School of Law, The Sanctity of Religious Liberty of Minority Faiths Under State Lewis & Clark Law: Howard Latin, Rutgers, Saving Nature Despite Fools, Felons, and Experts: Why the Environmental Groups are Failing Chicago IP Colloquium: Professor Robin Feldman, University of California Hastings College of Law, Rethinking Rights in Biospace Georgetown Constitutional Theory: Robert Justin Lipkin (law, Widener) "Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Congressional Override Solution" Monday, February 06, 2006
Weekend Update On Saturday the Download of the Week was Scalia's Infidelity: A Critique of Faint-Hearted Originalism by Randy Barnett and the Legal Theory Bookworm recommended A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia. Also, on Saturday, Balkin's In defense of underlying principles On Sunday, the Legal Theory Lexicon entry was Social Welfare Functions and the Legal Theory Calendar previewed the weeks talks and conferences. Monday Calendar
University of Texas Law: Anita Anand (Queen's University, Canada) UCLA Law: Professor Stephen Aron, UCLA History Department, "Adventures in Public History" Oxford Law Faculty, Richard Youard Lectures in Legal History: David Ibbetson, English Law and European Law: a Historian's View Ohio State Law: Evelyn Brody, Who Should Enforce Charity Fiduciary Duties? NYU Law: Jennifer Arlen Georgetown Joint Seminar in Law and Philosophy, Emotion, Cognition, and Law: Jerry Parrott (Psychology, Georgetown) Cornell Law & Economics: heodore Eisenberg, Cornell Law School, "The Significant Association Between Punitive and Compensatory Damages in Blockbuster Cases: A Methodological Primer," Co-authored with Martin T. Wells. Conference Announcement: Nussaum at Newcastle
Welcome to the Blogosphere . . . . . . to Antitrust Review with Dan Crane, David Fischer, Manfred Gabriel, and Hanno Kaiser. Sunday, February 05, 2006
Legal Theory Calendar
University of Texas Law: Anita Anand (Queen's University, Canada) UCLA Law: Professor Stephen Aron, UCLA History Department, "Adventures in Public History" Oxford Law Faculty, Richard Youard Lectures in Legal History: David Ibbetson, English Law and European Law: a Historian's View Ohio State Law: Evelyn Brody, Who Should Enforce Charity Fiduciary Duties? NYU Law: Jennifer Arlen Georgetown Joint Seminar in Law and Philosophy, Emotion, Cognition, and Law: Jerry Parrott (Psychology, Georgetown) Cornell Law & Economics: heodore Eisenberg, Cornell Law School, "The Significant Association Between Punitive and Compensatory Damages in Blockbuster Cases: A Methodological Primer," Co-authored with Martin T. Wells.
Vanderbilt Law: Curt Welling, President & CEO, AmeriCares, "From Sudan to Tsunami: Reflections of a Recovering Investment Banker" Oxford EC Law Discussion Group: Liz Fisher, Opening up Pandora's Box: Contextualising the Precautionary Principle in the EU Oxford Human Rights Discussion Group: Jan van Zyl Smit, Reading Down Under the HRA 1998 Oxford Law Faculty: Emily Campbell, "Inheritance Tax and the Pre-Owned Assets Tax" Oxford Law Faculty: Professor Jonathan Rickford, The implementation of the Takeover Directive and its implications" Marquette Law: Gary Gildin, Penn State—Dickinson School of Law, The Sanctity of Religious Liberty of Minority Faiths Under State Lewis & Clark Law: Howard Latin, Rutgers, Saving Nature Despite Fools, Felons, and Experts: Why the Environmental Groups are Failing Chicago IP Colloquium: Professor Robin Feldman, University of California Hastings College of Law, Rethinking Rights in Biospace Georgetown Constitutional Theory: Robert Justin Lipkin (law, Widener) "Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Congressional Override Solution"
University of Alabama Law: Hanoch Dagan, Tel Aviv University. University College, London, Colloquium in Legal and Social Philosophy: Professor John Broome, ‘Ought’ Oxford Public Law Discussion Group: Richard Ekins, "Parliamentary Sovereignty and the House of Lords in Jackson" Oxford Criminology Seminar Series: Nicole Hahn Rafter, H.J. Eysenck and the Biological Turn in 20th Century Criminology NYU Legal History: Peter Charles Hoffer, Research Professor, University of Georgia “An Essential History of the United States Supreme Court”
University of Michigan, Law & Economics: Peter DiCola, Michigan, An Economic Model of Sampling, Cover Versions, and Musical Collage University of Texas Law: Tom Merrill (Columbia) "The Accardi Principle" Villanova Law: Lawrence Joseph, St. John’s University School of Law. University of North Dakota, Indian Law Center: Erma J. Vizenor, "Tribal Sovereignty, the Federal Trust Responsibility, and Constitutional Reform" University College, London, Current Legal Problems Lecture: Dr Nigel Simmonds (Corpus Christi College, Cambridge, ‘Justice and Legality’ UCLA Legal Theory Workshop: Daryl Levinson, Professor of Law, Harvard Law School Oxford Public International Law Discussion Group: Dr. Rhiannon Talbot, What can Iraq, 7/7, Northern Ireland and the Terrorism Bill Teach Us:Building National Security and Human Rights as a Counter-Terrorism Strategy NYU Tax Policy & Public Finance: Stacy Dickert-Conlin, Michigan State University Economics Department, "Love at What Price? Estimating the Value of Marriage." UC Berkeley, Kadish Center: Kent Greenawalt Florida State Law: Bethany Berger, Wayne State University Law School (Hirsch)
UCLA Law: Allison Marston Danner, Associate Professor of Law & UCLA Visiting Scholar Vanderbilt University Law School, "When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War" Notre Dame Law: Professor William H. Page, Marshall M. Criser Eminent Scholar University of Florida Fredic G. Levin College of Law. Boston College Law: Shimon Shetreet, Professor of Law, The Hebrew University of Jerusalem, Faculty of Law USC Law: FISCAL CHALLENGES: AN INTERDISCIPLINARY APPROACH TO BUDGET POLICY
Legal Theory Lexicon: Social Welfare Functions
Background
Cardinal and Ordinal Interpretations of Utility One key divide is between cardinal and ordinal interpretations of utility. An ordinal utility function for an individual consists of a rank ordering of possible states of affairs for that individual. An ordinal function tells us that individual i prefers possible world X to possible world Y, but it doesn't tell us whether X is much better than Y or only a little better. A cardinal utility function yields a real-number value for each possible state of affairs. If we assume that utility functions yield values expressed in units of utility or utiles, then individual's utility function might score possible world P at 80 utiles and possible world Q at 120 utiles. We might represent the utility function U of individual i for P and Q as follows:
Measurement Problems Both cardinality and interpersonal comparability pose measurement problems for economists. Even in the case of a single individual, it is difficult to reliability measure cardinal utilities. Measurements that support interpersonal comparisons are even more difficult to justify, and cardinal interpersonal comparisons seem to require the analyst (the person making the comparison) to make a variety of controversial value judgments. Market prices won't do as a proxy for utility, for a variety of reasons including wealth effects. The challenge for welfare economics was to develop a methodology that yields robust evaluations but does not require the cardinal interpersonally comparable utilities. Pareto This is the point at which Pareto arrives on the scene. Suppose that all the information we have about individual utilities is ordinal and non-interpersonally comparable. In other words, each individual can rank order states of affairs, but we (the analysts) cannot compare the rank orderings across persons. The weak Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if everyone's ordinal ranking of P is higher than their ranking of Q. Weak Pareto doesn't get us very far, because such unanimity of preferences among all persons is rare. The strong Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if at least one person ranks P higher than Q and no one ranks Q higher than P. Unlike weak Pareto, strong Pareto does permit some relatively robust conclusions. The New Welfare Economics The so-called new welfare economics was based on the insight that market transactions without externalities satisfy strong Pareto. If the only difference between state P and state Q is that in P, individuals i1 and i2 engage in an exchange (money for widgets, chickens for shoes) where both prefer the result of the exchange, then the exchange is Pareto efficient. A state of affairs where no further Pareto efficient moves (or trades) are possible is called Pareto optimal. The assumption about externalities is, of course, crucial. If there are negative externalities of any sort, then the trade is not Pareto efficient. Weak Pareto and the Arrow Impossibility Theorem Weak Pareto plus ordinal utility information allows some social states (or possible worlds) to be ranked on the basis of everyone's preferences. A method for transforming individual utility information into such a social ranking is called a social utility function. Kenneth Arrow's famous impossibility theorem demonstrates that it is impossible to construct a social utility function that can transform individual ordinal rankings into a social ranking in cases not covered by weak Pareto, if certain plausible assumptions are made. Arrow's theorem has spurred two lines of development in welfare economics. One line of development relaxes various assumptions that Arrow made; for example, we might relax Arrow's assumption that the social ranking must be transitive (if X is preferred to Y and Y is preferred to Z, then X must be preferred to Z). The other line of development considers the possibility of allowing information other than individual, noncomparable ordinal utilities. It is this second line of development that is relevant to the use of social welfare functions in contemporary law and economics.
F is some increasing function that yields a real number, U1(x) is a cardinal, interpersonally comparable utility value yielded by some procedure for individual 1 for state of affairs X, and N is the total number of individuals. What Are the Plausible Social Welfare Functions? There are a variety of different possible functions that can be substituted for F. Here are some of the most important possibilities:
Bernoulli-Nash SWF--In the alternative, we could substitute the product function (¡Ç) and multiply individual utilities. This is sometimes called a Bernoulli-Nash social welfare function, which can be represented as follows:
One of the interesting theoretical questons about SWFs concerns the problem of interpersonal comparison. How do we get the values to plug into U1(x), U2(x), and so forth. That is, how do we compare up with a way of putting my utility and your utility on the same scale. As I understand the state of play, this is not a topic on which economists agree. Some economists believe that there is no objective way of producing interpersonally comparable cardinal utility values. But some economists believe that a third-party (the legal analyst or the economist) can do the job of assigning values to individual utilities. Conclusion We've barely begun to scratch the surface of the many interesting theoretical issues that attend the use of social welfare functions in legal theory. Some of those issues were explored in a prior Legal Theory Lexicon entry on Balancing Tests. Even if you have absolutely no background in economics, there is no reason to shy away from the debates about social welfare functions. The notation, although at first intimidating, is actually very simple. The foundational ideas, although sometimes articulated in the jargon of economic theory, really go to fundamental questions in moral theory. I hope this post has given you the tools to begin to discuss these ideas! Saturday, February 04, 2006
Balkin's In defense of underlying principles Over at Balkinization, Jack Balkin has an elegant and important post entitled In defense of underlying principles. (By the way, everying in blue is me; everything in ordinary black type is Balkin.) Balkin is responding to Randy Barnett's Taft Lecture, Scalia's Infidelity: A Critique of Faint-Hearted Originalism,--coincidentally, the Download of the Week. Balkin writes:
--But for this displacement to occur we have to know what the text really means independent from the principles that it promotes. This is the key move, and I think it is incorrect. Displacement can occur, whether or not we know what the text means independently from the prnciples that it promots. Let me give and example, and then explain.
Explanation: In this example, the equal protection clause becomes identical with the principle that underlies it. This is exactly the kind of move that Barnett was worried about. We have conceptual ascent from constitutional text to underlying principles follow by conceptual descent from the principles to application--without going back to the text itself.
2') given that the principle underlying the equal protection clause is T, ambiguity A (or vagueness V) should be resolve by interpretion I (as opposed to alternative interpretations I' or I''). 3') given interpretation I of the equal protection clause, application of the clause to circumstances C requires result R'. --Sometimes that is easy to do when the text is relatively clear cut. The Framers said that the President must be 35, and perhaps the underlying principle is that he or she be relatively mature. However, the specific age limit controls, and it may not be displaced by the more general principle it enacts.Balkin is right. In this case, we don't need to know the general principle in order to interpret the text. No quibbles here. --But when we move to the more abstract and general features of the constitutional text, like the Equal Protection Clause or the guarantee of freedom of speech-- to say nothing of the Privileges or Immunities Clause, or the Ninth Amendment-- it is much harder to see when the underlying principles are displacing the text. Notice that Balkin says "hard to see". This is an epistemological claim--about how easy or hard it is to know when displacement is occuring. It is not a claim that displacement is not occuring. It is not a claim that displacement is different from utilization of principles in the process of interpretation. --Indeed, we need such principles in order to understand how to apply the text to concrete circumstances. Notice the crucial ambiguity here. Balkin's claim is ambiguous as between the two different roles that principles can play, as illustrated by the example above. We may need principles to resolve ambiguities or vagueness. And the resolution of ambiguities or vagueness may be required to apply the text to concrete circumstances. But that is quite a different thing than using the principles themselves as the basis for deciding what the text requires in concrete circumstances. In other words, Balkin hasn't actually made out his claim that "for this displacement to occur we have to know what the text really means independent from the principles that it promotes". My example shows that there can be displacement, even if the meaning of the general and abstract provisions of the constitution can only discerned with the aid of underlying principles. That is because there is a difference between the use of underlying principles to resolve ambiguity or vagueness and the use of underlying principles as a substitute for the constitutional text. Legal Theory Bookworm And speaking of Justice Scalia, the Legal Theory Bookworm recommends A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia, with comments by Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin. Here's a blurb:
Here are some other Scalia-oriented monographs:
Scalia Dissents : Writings of the Supreme Court's Wittiest, Most Outspoken Justice by Kevin A. Ring Justice Antonin Scalia and the Conservative Revival by Richard A., Jr. Brisbin Download of the Week The Download of the Week is Scalia's Infidelity: A Critique of Faint-Hearted Originalism by Randy Barnett. Here's the abstract:
Philosophy on the Web I wanted to pass on this information from Jonathan Bennett:
Friday, February 03, 2006
Deanship Announcement: University of Texas School of Law
Mikhail on Sunstein on Moral Heuristics John Mikhail (Georgetown Law) has posted Moral Heuristics or Moral Competence? Reflections on Sunstein on SSRN. Here is the abstract:
Listserv Announcement: New Legislation Listserv
Friday Calendar
Notre Dame Law: Ernest A. Young, Texas, "The Volk of New Jersey? Sovereignty and Political Community in Europe and the United States.". This sounds cool! Georgetown Law & Economics: Jonathan Klick, Florida State University College of Law, "Incomplete Contracts and Opportunism in Franchising Arrangements: The Role of Termination Clauses" Boston College Law: Michelle J. Anderson, Professor of Law, Villanova University School of Law. University of Illinois Law: East Asia Undisciplined: Law, Economics, and Institutions in East Asia
Conference Announcement: Southeastern Association of Law
Macey on Government as Contractual Claimant Jonathan R. Macey (Yale Law School) has posted Government as Contractual Claimant: Tax Policy and the State (Social Philosophy & Policy, Summer 2006) on SSRN. Here is the abstract:
Shepherd on Post-Schiavo Legislation Lois Shepherd (Florida State University - College of Law) has posted State Legislative Proposals Following Schiavo: What are they Thinking? (Temple Political and Civil Rights Law Review, Vol. 15, 2006) on SSRN. Here is the abstract:
Thursday, February 02, 2006
Barnett's Taft Lecture Randy Barnett is delivering the Taft Lecture today at the University of Cincinnati. His title is Scalia's Infidelity: A Critique of Faint-Hearted Originalism--follow the link to download from SSRN and/or follow this link to view the webcast. This is a particularly significant occasion, because Barnett's paper critiquest Justice Antonin Scalia's own taft lecture--Originalism: The Lesser Evil (also available at 57 U. Cin. L. Rev. 849 (1989)). Scalia's lecture is one of the milestones in the development of originalist constitutional theory. In particular, it was a turning point in the movement of originalism from "original intent" to "original public meaning." (For a basic introduction, see Legal Theory Lexicon 019: Originalism). Here's the abstract of Barnett's paper:
Justice Scalia’s infidelity to the original meaning of the Constitution as a whole was manifested in another way in his Taft Lecture. To the objection that originalism “In its undiluted form, at least, . . . is medicine that seems too strong to swallow,”18 he offers two responses. First, he asserts a strong role for precedent, even where it is inconsistent with the original meaning of the text: “Thus, almost every originalist would adulterate it with the doctrine of state decisis,” he admitted, “so that Marbury v. Madison would stand even if Professor Raoul Berger should demonstrate unassailably that it got the meaning of the Constitution wrong.” Notice that, contrary to his professed scepticism about the legitimacy of judicial review, this stance puts prior opinions of mere judges above that of the Constitution. Why? Simply because the results of doing otherwise seem to him too objectionable to countenance.
Fellowship Announcement: Empirical Legal Scholarship at Wash U
Thursday Calendar
Oxford Jurisprudence Discussion Group: Kevin Toh, Raz on Detachment and Describability Stanford Law & Economics: Daniel Kelly (U.S. Court of Appeals for the Second Circuit), "The 'Public Use' Requirement in Eminent Domain Law: A Rationale Based on Secret Purchases and Private Influence" Lewis & Clark Law: Anita Bernstein, Emory, Keep It Simple: An Explanation of the Rule of No Recovery for Pure Economic Loss Boston University Law: Mike Meurer and Maureen O'Rourke, Contract and Coordination Failure: Mandatory and Prohibited Terms in Intellectual Property Licenses. Brooklyn Law: Wendy Seltzer, Brooklyn Law School, The Chilling Effects of Legal Threats to Online Speech—and Ways to Warm the Air. Florida State Law: Suzanna Sherry, Vanderbilt University Law School. Fordham Law: Thomas H. Lee, Fordham & Visiting Columbia, "The World Balance of Power and the Evolution of U.S. Foreign Relations Law" UC Berkeley, Kadish Center: Lawrence Sager, Texas. NYU Colloquium on Tax Policy & Public Finance: Jason Furman, NYU Wagner School, “Coping With Demographic Uncertainty.” Northwestern Law, Advanced Topics in Taxation: Steven A. Bank, Professor of Law, University of California at Los Angeles, "Dividends and Tax Policy in the Long-Run" Oxford Comparative Law Discussion Group: Dr Péter Gárdos, Fundamental Conceptions of the Basis of Civil Liability: Insights from the Draft Hungarian Civil Code Duke Law: Age Restrictions in Professional Sports: From Maurice Clarret to LeBron James Panel discussion of legal issues associated with age restrictions in professional sports by Professor McCann, Professor Barack Richman, and Professor Paul Haagen (webcast link here). Carrese on the Rule of Law and Legal Capital Paul Carrese has an op/ed entitled "U.S. is spending its legal capital," available on DenverPost.com. Here's a taste:
Oldfather on Judicial Activism Chad Oldfather (Marquette) has posted Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide on SSRN. Here is the abstract:
Craig on the Environement and the Constitution Robin Kundis Craig (Indiana University School of Law - Indianapolis) has posted Should there be a Constitutional Right to a Clean and Healthy Environment? (Environmental Law Reporter, Vol. 34, p. 11013, December 2004) on SSRN. Here is the abstract:
Wednesday, February 01, 2006
Wednesday Calendar
NYU Legal History: Claire Priest, Northwestern, “Creating an American Property Law: Alienability and its Limits in American History” Ohio State Law: Omri Ben-Shahar, Contracts Without Consent UCLA Legal History: Dennis J. Ventry, Jr., UCLA, "Family Tax Inequities and Community Property Law, 1913-1930" Bar-Gill on Legal Option Pricing Oren Bar-Gill (New York University - School of Law) has posted Pricing Legal Options: A Behavioral Perspective on SSRN. Here is the abstract:
Hurwitz on Ideology and Deference in the Courts of Appeals Mark S. Hurwitz (Western Michigan University - Dept. of Political Science) has posted Ideology and Deference in U.S. Courts of Appeals Decision Making on Administrative Law on SSRN. Here is the abstract:
Hirsch on Asset Protection Trusts Adam J. Hirsch (Florida State University College of Law) has posted Fear Not the Asset Protection Trust (and Other Reflections) on SSRN. Here is the abstract:
Ghosh on Rose, Exclusivity & Democracy Shubha Ghosh (Southern Methodist University - Dedman School of Law) has posted Exclusivity - The Roadblock to Democracy? on SSRN. Here is the abstract:
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