Legal Theory Blog |
|
 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 
|
Friday, March 31, 2006
At Notre Dame Today I'm at the the Roundtable on Steve Smith's Law's Quandary at Notre Dame today. I'm really looking forward to this. If you haven't yet read Steve Smith's book, please do! Smith is one of the best writer's in the legal academy, and Law's Quandary explores some of the deepest issues in legal theory from Smith's unique and thoughtful perspective. Details for the roundtable are in today's calendar--scroll down. Three by Bix Brian Bix has three new papers on SSRN:
Friday Calendar
Villanova Law: Mary-Rose Papandrea, Boston College Law School Oxford Institute of European and Comparative Law: French-English Conference: FORUM SHOPPING IN THE EUROPEAN JUDICIAL AREA University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL: Law, Constitutions, and Rights: Local Utah Issues
Boston College Law School, “Owning Standards”:
Florida State Law: Matthew McCubbins, University of California, San Diego. Joint workshop with FSU Political Science Department. Cornell Law: Jeremy A. Blumenthal, "Emotional Paternalism" Thursday, March 30, 2006
Thursday Calendar
University of Illinois Law: Susanna Blumenthal (Assistant Professor of Law at the University of Michigan Law School, "The Default Legal Person" Yale Law Economics & Organization Workshop: Professor Gillian Hadfield, USC Law, The Quality of Law in Civil Code and Common Law Regimes: Judicial Incentives, Legal Human Capital and the Evolution of Law University of Michigan Law & Economics: Paul Heald, Georgia, The Problem of Social Cost in a Genetically Modified Age University of Arizona James E. Rogers College of Law: Professor Margo Bagley, Emory Univ. School of Law; Topic: "Academic Discourse and Proprietary Rights: Putting Patents in Their Proper Place." University of Cincinnati Law: Adam Feibelman, Contract, Priority, and Odious Debt Northwestern Advanced Topics in Taxation: Kyle D. Logue, Professor of Law, University of Michigan, "Deterring Abusive Tax Avoidance: Optimal Enforcement When the Law is Uncertain" University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL:
Loyola, Los Angeles: Jeff Atik, Professor of Law, Loyola Law School, Embracing Price Discrimination: TRIPS and Parallel Trade in Phamaceuticals George Mason Law: Dean Lueck, University of Arizona Department of Economics, The Organization and Behavior of Bureaucracy: The Case of the Wildlife Agency Fordham Law: Deborah W. Denno, Professor of Law, Fordham University School of Law, "Mental State Across Ten Centuries: 1235 Brooklyn Law School: Margaret Brinig, Iowa, Standards for Licensing and Driving Boston University Law: Nancy Moore, "Mens Rea Standards in Lawyer Disciplinary Codes" Conference Announcement: Dual Process Theories of Rationality at Cambridge
Wednesday, March 29, 2006
Wednesday Calendar>
William Mitchell Law: Robert Delahunty, St. Thomas Law, This call may be monitored: Is NSA wiretappling legal? NYU Legal History: Amalia Kessler, Assistant Professor, Stanford Law School, “A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France” Tuesday, March 28, 2006
Opinio Juris Reception at ASIL I'm passing along the following:
Tuesday Calendar
University of Illinois College of Law: Amy Wax, Diverging Destinies: Economics, Behavior, and the Decline of Marriage University of Texas: Érica Gorga (UT) "Knowledge Resources and Their Implications for the Theory of the Firm and Corporate Governance" Georgetown Constitutional Law & Theory: Cristina Rodriguez (law, NYU) Language and Participation University of North Dakota Law: John Washburn, Convener of the American Non-governmental Organizations Coalition of the International Criminal Court (AMICC), “Genocide and Terrorism Attacked - The International Criminal Court at Work: Darfur, Congo, and Uganda” Yale Legal History: MICHAEL KLARMAN, University of Virginia School of Law "Brown and Lawrence (and Goodridge)" Vanderbilt Law Faculty Workshop: Katherine Franke, Columbia University Law School, "Subjects of Freed-dom" University of Texas Constitutional Studies Luncheon: Cindy Skach (Harvard) University of Chicago Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, Crossing the Punitive-Compensatory Divide University College, London, Faculty of Laws, The Constitutional Law Group: ‘Reforming and Reorganising Tribunals’
Marquette Law: Laurel Oates, Reading Skills & Law School Performance University of Houston Law Center, Third Annual Baker Botts Lecture: The Honorable Arthur J Gajarsa Georgetown Law Faculty Workshop: James Forman Book Announcement: The Politics of Precedent by Hansford & Spriggs
Allen on O'Connor & the Right to Die Michael Patrick Allen (Stetson University - College of Law) has posted Justice O'Connor and the "Right to Die": Constitutional Promises Unfulfilled (14 William & Mary Bill of Rights Journal, Vol. 14, No. 000, pp. 1-22, 2006) on SSRN. Here is the abstract:
McCluskey on Equality & Elitism Martha T. McCluskey (University at Buffalo - Law School) has posted How Equality Became Elitist: The Cultural Politics of Economics from the Court to the “Nanny Wars” (Seton Hall Law Review, 2006) on SSRN. Here is the abstract:
Schor on the Rule of Law Miguel Schor (Suffolk University Law School) has posted The Rule of Law on SSRN. Here is the abstract:
Monday, March 27, 2006
Weekend Update On Saturday, the Download of the Week was Presidents, Senates, and Failed Supreme Court Nominations by Keith Whittington and the Legal Theory Bookworm recommended When Courts and Congress Collide: The Struggle for Control of America's Judicial System by Charles Gardner. Sunday's Legal Theory Lexicon was on Fit and Justification and the Legal Theory Calendar rounded up the week's talks, workshops, and conferences. Lando on Utilitarianism & Preferences for Fairness Henrik Lando (Copenhagen Business School - Department of Industrial Economics & Strategy (IVS)) has posted On Utilitarianism as an Objective Ethical Norm, and Preferences for Fairness on SSRN. Here is the abstract:
Tillman on Ross on the Electoral College Seth Tillman has posted Betwixt Principle and Practice: Tara Ross's Defense of the Electoral College. Reviewing: Enlightened Democracy: The Case for the Electoral College (World Ahead Publishing 2004) on SSRN. Here is the abstract:
Allen on Congress, Schiavo, and Constitutional Order Michael Patrick Allen (Stetson University - College of Law) has posted Congress and Terri Schiavo: A Primer on the American Constitutional Order? (West Virginia Law Review, Vol. 108, pp. 309-360, 2006) on SSRN. Here is the abstract:
Schor on Latin America & Constitutionalism Miguel Schor (Suffolk University Law School) has posted Constitutionalism Through the Looking Glass of Latin America (Texas International Law Journal, Vol. 41, p. 1, 2006) on SSRN. Here is the abstract:
Alexander on Academic Freedom Larry Alexander (University of San Diego) has posted Academic Freedom on SSRN. Here is the abstract:
Monday Calendar
Yale Workplace Theory & Policy: SAMUEL BAGENSTOS, Law, Washington University in St. Louis, The Future of Disability Law University of Cincinnati Law: Eric Claeys, St. Louis University, "Jefferson Meets Coase: Train Sparks, Natural Rights, and Law and Economics" Vanderbilt Law & Politics Seminar: Jeffrey Segal, SUNY-Stony Brook Political Science Vanderbilt Law Faculty Workshop: Lisa Heinzerling, Georgetown Universitiy Law Center, "Knowing Killing and Environmental Law" Georgetown Law & Philosophy: Sue Dwyer (Philosophy, University of Maryland-Baltimore) NYU Law: Katrina Wyman Cardozo Intellectual Property Speaker Series: Jane Winn, University of Washington, Ambivalence & Authority within the Free & Open Source Software Community Hofstra Law: Ahmed White, University of Colorado Law School, “Criminal Syndicalism Laws, the Industrial Workers of the World, and the Criminalization of Economic Radicalism, 1917-1927” Columbia Law & Economics: Oona Hathaway, Yale Law School, The Promise & Limits of the International Law of Torture & STRONG STATES, STRONG WORLD: WHY INTERNATIONAL LAW SUCCEEDS AND FAILS AND WHAT WE SHOULD DO ABOUT IT Call for Papers: Social Science & Democracy
Workshop Announcement: Practical Reasons at Leeds
Conference Announcement: BSET 2006
Sunday, March 26, 2006
Legal Theory Calendar
University of Cincinnati Law: Eric Claeys, St. Louis University, "Jefferson Meets Coase: Train Sparks, Natural Rights, and Law and Economics" Yale Workplace Theory & Policy: SAMUEL BAGENSTOS, Law, Washington University in St. Louis, The Future of Disability Law Vanderbilt Law & Politics Seminar: Jeffrey Segal, SUNY-Stony Brook Political Science Vanderbilt Law Faculty Workshop: Lisa Heinzerling, Georgetown Universitiy Law Center, "Knowing Killing and Environmental Law" Georgetown Law & Philosophy: Sue Dwyer (Philosophy, University of Maryland-Baltimore) NYU Law: Katrina Wyman Cardozo Intellectual Property Speaker Series: Jane Winn, University of Washington, Ambivalence & Authority within the Free & Open Source Software Community Hofstra Law: Ahmed White, University of Colorado Law School, “Criminal Syndicalism Laws, the Industrial Workers of the World, and the Criminalization of Economic Radicalism, 1917-1927” Columbia Law & Economics: Oona Hathaway, Yale Law School, The Promise & Limits of the International Law of Torture & STRONG STATES, STRONG WORLD: WHY INTERNATIONAL LAW SUCCEEDS AND FAILS AND WHAT WE SHOULD DO ABOUT IT
University of Illinois College of Law: Amy Wax, Diverging Destinies: Economics, Behavior, and the Decline of Marriage University of Texas: Érica Gorga (UT) "Knowledge Resources and Their Implications for the Theory of the Firm and Corporate Governance" Georgetown Constitutional Law & Theory: Cristina Rodriguez (law, NYU) Language and Participation University of North Dakota Law: John Washburn, Convener of the American Non-governmental Organizations Coalition of the International Criminal Court (AMICC), “Genocide and Terrorism Attacked - The International Criminal Court at Work: Darfur, Congo, and Uganda” Yale Legal History: MICHAEL KLARMAN, University of Virginia School of Law "Brown and Lawrence (and Goodridge)" Vanderbilt Law Faculty Workshop: Katherine Franke, Columbia University Law School, "Subjects of Freed-dom" University of Texas Constitutional Studies Luncheon: Cindy Skach (Harvard) University of Chicago Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, Crossing the Punitive-Compensatory Divide University College, London, Faculty of Laws, The Constitutional Law Group: ‘Reforming and Reorganising Tribunals’
Marquette Law: Laurel Oates, Reading Skills & Law School Performance University of Houston Law Center, Third Annual Baker Botts Lecture: The Honorable Arthur J Gajarsa Georgetown Law Faculty Workshop: James Forman
William Mitchell Law: Robert Delahunty, St. Thomas Law, This call may be monitored: Is NSA wiretappling legal? NYU Legal History: Amalia Kessler, Assistant Professor, Stanford Law School, “A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France”
University of Illinois Law: Susanna Blumenthal (Assistant Professor of Law at the University of Michigan Law School, "The Default Legal Person" Yale Law Economics & Organization Workshop: Professor Gillian Hadfield, USC Law, The Quality of Law in Civil Code and Common Law Regimes: Judicial Incentives, Legal Human Capital and the Evolution of Law University of Michigan Law & Economics: Paul Heald, Georgia, The Problem of Social Cost in a Genetically Modified Age University of Arizona James E. Rogers College of Law: Professor Margo Bagley, Emory Univ. School of Law; Topic: "Academic Discourse and Proprietary Rights: Putting Patents in Their Proper Place." University of Cincinnati Law: Adam Feibelman, Contract, Priority, and Odious Debt Northwestern Advanced Topics in Taxation: Kyle D. Logue, Professor of Law, University of Michigan, "Deterring Abusive Tax Avoidance: Optimal Enforcement When the Law is Uncertain" University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL:
Loyola, Los Angeles: Jeff Atik, Professor of Law, Loyola Law School, Embracing Price Discrimination: TRIPS and Parallel Trade in Phamaceuticals George Mason Law: Dean Lueck, University of Arizona Department of Economics, The Organization and Behavior of Bureaucracy: The Case of the Wildlife Agency Fordham Law: Deborah W. Denno, Professor of Law, Fordham University School of Law, "Mental State Across Ten Centuries: 1235 Brooklyn Law School: Margaret Brinig, Iowa, Standards for Licensing and Driving Boston University Law: Nancy Moore, "Mens Rea Standards in Lawyer Disciplinary Codes"
Villanova Law: Mary-Rose Papandrea, Boston College Law School Oxford Institute of European and Comparative Law: French-English Conference: FORUM SHOPPING IN THE EUROPEAN JUDICIAL AREA University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL: Law, Constitutions, and Rights: Local Utah Issues
Florida State Law: Matthew McCubbins, University of California, San Diego. Joint workshop with FSU Political Science Department. Cornell Law: Jeremy A. Blumenthal, "Emotional Paternalism" Legal Theory Lexicon: Fit and Justification
As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. I know you are all very busy at this time of year, so I will do my best to be concise. The Basic Idea Suppose a judge is deciding a hard case. It could be a common law case or a constitutional case or a statutory case. How do judges approach this task when they are confronted with a case in which the law is up for grabs? That is, how do judges decide cases where there is an unsettled question of law? Dworkin's basic idea is that the process of deciding a hard case has two dimensions--fit and justification. First, the judge might ask herself, "Of all the possible interpretations of the law that I could adopt as the basis for my decision, which one is consistent with the theory that best fits the existing legal landscape. Of all the rules I could adopt in this case, which ones are consistent with the relevant constitutional and statutory provisions and with the precedent." When the judge had identified the alternatives that meet the criterion of fit, it is possible that there will be more than one possibility that fits. If so, then the judge can go on to ask the question, "Of the interpretations of the existing law that fit the constitution, statutes, and case law, which is the best interpretation? Which of the possible legal rules that I could adopt is most consistent with the normative theory that provides the best justification for the law as a whole. ? Fit What does it mean to say that a given rule fits the legal landscape? Suppose you are a judge deciding whether your jurisdiction will adopt the rule of contributory negligence or will choose instead to follow the comparative negligence approach. It is possible that only one of these two rules fits the existing law in your jurisdiction. For example, if the legislature has mandated the contributory negligence rule by statute, then as a judge (even a Supreme Court judge), you would be obliged to follow the statute and decide the case before you on the basis of contributory negligence. On the other hand, suppose you are in a newly created jurisdiction. No statute or binding precedent requires either comparative or contributory negligence. Both rules fit the existing legal landscape. In that case, Dworkin argues, you would need to decide a question of justification. Justification What does it mean to say that a judge might prefer one rule over another on the basis of the criterion of rustication? Let's continue with our example of the choice between contributory and comparative negligence. Since there is no statute or precedent that compels (or strongly guides) the choice, the judge must turn to some other basis in order to make her decision. She will need to get normative, i.e., to consider the normative justifications for tort law. Simplifying greatly, let's suppose our judge decides that the tort of negligence is best understood as a system of compensation and "risk spreading." She might then reason that the comparative negligence rule does a better job of serving this purpose than does a contributory negligence rule. Contributory negligence allows losses to go uncompensated when the plaintiff (victim) caused any of her own loss; comparative negligence does a better job of spreading the risk of accidents. [I know that this is a very crude argument, and I'm sure all of you can do better.] In other words, the judge asks the question, "What normative theory best justifies the existing law and negligence?" And then proceeds to the question, "Given that justification of tort law, which of the alternative rules that I could apply to the case before me best serves the purposes of tort law?" Two Kinds of Justification: Principle and Policy In Hard Cases, Dworkin identified two different kinds of arguments that can be used to justify the law. He called these two different types arguments of "principle" and "policy." As understood by Dworkin, arguments of principle are arguments that appeal to ideas about fairness and rights. If you would like to know more about arguments of principle, a good place to begin is with the Legal Theory Lexicon entry on Deontlogy. Arguments of policy, on the other hand, appeal to consequences. For example, if you argued that a comparative negligence rule is better than a contributory negligence rule because it provides optimal incentives for taking precautions against accidents, you would have made an argument of policy in Dworkin's sense. If you are interested in the theoretical basis for arguments of policy, you could take a look at the Legal Theory Lexicon entry on Utilitarianism. Dworkin himself argued that judges should consider arguments of principle and should not decide cases on the basis of arguments of policy. That feature of his theory is hugely controversial--as you could guess if, like most law students, you've heard endless discussion of policy in the classroom. But Dworkin could be right about "fit and justification," even if he is wrong that the dimension of justification is limited to principle and excludes policy. Conclusion It is very difficult to generalize about law school exams; they vary enormously. But many standard issue spotting essay questions have built into them a "hard case," an aspect of the fact pattern that is intended to trigger your discussion of the question, "What should the rule be?," with respect to some controversial legal issue. If you try to answer the question, "What should the rule be?," by telling your instructor, "Here is the majority rule," or "Here are two alternative rules; I don't know which one is the law, you will have missed the point of the question! And that's where Dworkin comes in. You can use "fit and justification" as the basis for organizing your answer to a "What should the law be?" question. Begin with fit. Which possible rules are consistent with the settled law? Then move to justification. Of the rules that fit, which is the best rule? Now list the arguments of principle and policy for and against each of the plausible candidates. Be sure to come to a conclusion. That is, end with something like, "Adopting a rule of comparative negligence is required by the theory that best fits and justifies the existing law of torts." Saturday, March 25, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends When Courts and Congress Collide: The Struggle for Control of America's Judicial System by Charles Gardner Geyh. Here's a blurb:
Download of the Week The Dowload of the Week is Presidents, Senates, and Failed Supreme Court Nominations by Keith Whittington. Here is the abstract:
Saturday Calendar
Friday, March 24, 2006
Whttington on Failed Supreme Court Nominations Keith Whttington (Princeton) has posted Presidents, Senates, and Failed Supreme Court Nominations on SSRN. Here is the abstract:
Friday Calendar I left off a very important conference at Fordham--so this is a revised version of the Calendar!
University of Texas Law, Leon Greeen Lecture: Hillel Steiner (Manchester) "A Famous Conflict" (For the version of this paper that Steiner delivered at University College recently, follow this link. University of North Dakota Law: Inaugural Distinguished Scholar-in-Residence, Professor Carol Gilligan (NYU), "From In a Different Voice to The Birth of Pleasure: An Intellectual Journey” Notre Dame Law: Professor Ellen D. Katz, The University of Michigan Law School Suffolk Law: STEM CELLS: 2006 SCIENCE, LAW & BUSINESS, Annual Intellectual Property Law Conference Georgetown Law & Economics: Ronen Avraham, Northwestern University School of Law Georgetown Law, Conference on Economic and Social Inequality:The Role of Race in Law, Markets, and Social Structures. Florida State Law: Roberto Romano, Yale Law School Yale Law School: The Most Dangerous Branch? Mayors, Governors, Presidents and the Rule of Law: A Symposium on Executive Power:
Mossoff on Patents & Natural Rights Adam Mossoff (Michigan State) has posted Who Cares what Thomas Jefferson Thought about Patents: Reevaluating the Patent Privilege in Historical Context on SSRN. Here is the abstract:
Two by Moss Scott Moss (Marquette) has posted two papers on SSRN:
Thursday, March 23, 2006
Leiter & Weisberg on Evolutionary Psychology and Law Brian Leiter & Michael Weisberg have posted Why Evolutionary Biology is (so far) Irrelevant to Law on SSRN. Here is the abstract:
Thursday Calendar
University of Texas Tom Sealy Endowed Lecture: Louis Fisher, Special Assistant to Law Librarian- Library of Congress, "State of War After 9/11" University of Texas Colloquium on Constitutional and Legal Theory: Hillel Steiner (Manchester), Freedom & Bivalence & Quantification of Freedom Steiner is a deeply interesting and articulate thinker. University of Michigan Law & Economics: Wesley Cohen, Duke, John Walsh, Illinois-Chicago, The View from the Bench: The Patenting and Licensing of Research Tools and Biomedical Innovation University of Arizona Law: Professor Jeff Rachlinski, Cornell Law School, “Judicial Psychology.” UCLA Tax Policy & Public Finance Colloquium: Bob Peroni, University of Texas Law School, Exploring the Contours of a Proposed U.S. Exemption (Territorial Tax System) NYU Colloquium on Tax Policy & Public Finance: Howell Jackson, Harvard Law School, "Counting the Ways: The Structure of Federal Spending." Institut Français (London): Susan James (Birkbeck), Spinoza: Politics and Imagination UC Berkeley, Kadish Center: Philip Pettit, William Nelson Cromwell Professor of Politics, Princeton University, RESPONSIBILITY INCORPORATED Pettit is a marvel! Georgetown Intellectual Property: J.H. Reichman, Bunyan S. Womble Professor of Law, Duke University Law School, Treating Clinical Trials as a Public Good: The Most Logical Reform George Mason Law: : Moin Yahya, University of Alberta School of Law and former Levy Fellow; Do You Need an Economic Theory for an Antitrust Complaint? Fordham Law: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, "Trespass in an Electronic A[ge] Boston University: Wendy Gordon. Wednesday, March 22, 2006
Help on the Entry Level Hiring Reports: Rumors, Incomplete Reports, and No-Hire Reports Version 3.1 of the Entry-Level Hiring Report is up. If you have complete information on an entry-level hire, that's wonderful, but in order to complete the report, it is very helpful to receive incomplete information. Also, if your school is not making an entry-level hire, please let me know. Reports can be emailed to lsolum@gmail.com. And thank you to everyone who has provided information so far! Mattioli on Procedural Fair Use Michael R. Mattioli (University of Pennsylvania - School of Law) has posted Procedural Fair Use on SSRN. Here is the abstract:
Levinson on Jury Priming Justin D Levinson (University of Hawaii at Manoa - William S. Richardson School of Law) has posted Suppressing the Expression of Community Values in Juries: How Legal Priming Systematically Alters the Way People Think (University of Cincinnati Law Review, Vol. 73, pp. 1059-1079, 2005) on SSRN. Here is the abstract:
Winn on Spyware Contracts Jane K. Winn (University of Washington - School of Law) has posted Contracting Spyware by Contract (Berkeley Technology Law Journal Vol. 20, p. 1345, 2005) on SSRN. Here is the abstract:
Strandburg on Curiosity Driven Driven Research Katherine J. Strandburg (DePaul University - College of Law) has posted Curiosity-Driven Research and University Technology Transfer on SSRN. Here is the abstract:
Wednesday Calendar
University of Toronto Tax Law & Policy Workshop: Joel Slemrod, University of Michigan Taxation and Big Brother: Information, Personalization, and Privacy in 21st Century Tax Policy University College London: The Constitutional Law Group (UK branch of the International Association of Constitutional Law), ‘Reforming and Reorganising Tribunals’
Tuesday, March 21, 2006
Tuesday Calendar
Vanderbilt Law: Michael Van Alstine, University of Maryland School of Law, "Executive Aggrandizement in Foreign Affairs Lawmaking" Vanderbilt Comparative Corporate Governance Seminar: Jennifer Hill, Vanderbilt Law School & Sydney Law School University of Texas Law: David Gamage, "What Constitutes a 'Tax Cut' or a 'Tax Hike'?" University of Pennsylvania Tax Policy Workshop: Alex Raskolnikov, Tax Shelter Penalties Marquette Law: Barrett McCormick, Marquette University, China and the Internet Lewis & Clark Law: Brian Blum Contempt of Court and the Courts' Inherent Power Georgetown Law: Mitt Regan Georgetown Constitutional Law & Theory Colloquium: Ruti Teitel (law, New York Law School), The Law of Humanity: Rule of Law for a Global Politics Nominations Invited Digital Culture invites nominations for the best writing on Technology published in 2005. Here's the announcement:
Monday, March 20, 2006
Monday Calendar
University of Texas Law: Kate Litvak (UT), "The Effect of the Sarbanes-Oxley Act on Non-US Companies Cross-listed in the United States" UCLA Law: Professor Donald Shoup, UCLA Department of Urban Planning, "Curb Parking as a Commons, Anticommons, or Liberal Commons" Georgetown Law & Philosophy: Jesse Prinz (Philosophy, University of North Carolina Kar on the Deep Structure of Law & Morality Robin Kar (Loyola, Los Angeles) has posted a new version of The Deep Structure of Law and Morality (Texas Law Review, Vol. 84, p. 877, 2006) on SSRN. Here's the abstract:
Conference Announcement: Boundaries of Rights and Responsibilities at Rutgers-Camden
Conference Announcement: Episteme at Toronto
Sunday, March 19, 2006
Legal Theory Calendar
University of Texas Law: Kate Litvak (UT), "The Effect of the Sarbanes-Oxley Act on Non-US Companies Cross-listed in the United States" UCLA Law: Professor Donald Shoup, UCLA Department of Urban Planning, "Curb Parking as a Commons, Anticommons, or Liberal Commons" Georgetown Law & Philosophy: Jesse Prinz (Philosophy, University of North Carolina)
Vanderbilt Law: Michael Van Alstine, University of Maryland School of Law, "Executive Aggrandizement in Foreign Affairs Lawmaking" Vanderbilt Comparative Corporate Governance Seminar: Jennifer Hill, Vanderbilt Law School & Sydney Law School University of Texas Law: David Gamage, "What Constitutes a 'Tax Cut' or a 'Tax Hike'?" University of Pennsylvania Tax Policy Workshop: Alex Raskolnikov, Tax Shelter Penalties Marquette Law: Barrett McCormick, Marquette University, China and the Internet Lewis & Clark Law: Brian Blum Contempt of Court and the Courts' Inherent Power Georgetown Law: Mitt Regan Georgetown Constitutional Law & Theory Colloquium: Ruti Teitel (law, New York Law School), The Law of Humanity: Rule of Law for a Global Politics
University of Toronto Tax Law & Policy Workshop: Joel Slemrod, University of Michigan Taxation and Big Brother: Information, Personalization, and Privacy in 21st Century Tax Policy University College London: The Constitutional Law Group (UK branch of the International Association of Constitutional Law), ‘Reforming and Reorganising Tribunals’
University of Texas Tom Sealy Endowed Lecture: Louis Fisher, Special Assistant to Law Librarian- Library of Congress, "State of War After 9/11" University of Texas Colloquium on Constitutional and Legal Theory: Hillel Steiner (Manchester), Freedom & Bivalence & Quantification of Freedom Steiner is a deeply interesting and articulate thinker. University of Michigan Law & Economics: Wesley Cohen, Duke, John Walsh, Illinois-Chicago, The View from the Bench: The Patenting and Licensing of Research Tools and Biomedical Innovation University of Arizona Law: Professor Jeff Rachlinski, Cornell Law School, “Judicial Psychology.” UCLA Tax Policy & Public Finance Colloquium: Bob Peroni, University of Texas Law School, Exploring the Contours of a Proposed U.S. Exemption (Territorial Tax System) NYU Colloquium on Tax Policy & Public Finance: Howell Jackson, Harvard Law School, "Counting the Ways: The Structure of Federal Spending." Institut Français (London): Susan James (Birkbeck), Spinoza: Politics and Imagination UC Berkeley, Kadish Center: Philip Pettit, William Nelson Cromwell Professor of Politics, Princeton University, RESPONSIBILITY INCORPORATED Pettit is a marvel! Georgetown Intellectual Property: J.H. Reichman, Bunyan S. Womble Professor of Law, Duke University Law School, Treating Clinical Trials as a Public Good: The Most Logical Reform George Mason Law: : Moin Yahya, University of Alberta School of Law and former Levy Fellow; Do You Need an Economic Theory for an Antitrust Complaint? Fordham Law: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, "Trespass in an Electronic A[ge] Boston University: Wendy Gordon.
University of Texas Law, Leon Greeen Lecture: Hillel Steiner (Manchester) "A Famous Conflict" (For the version of this paper that Steiner delivered at University College recently, follow this link. Notre Dame Law: Professor Ellen D. Katz, The University of Michigan Law School Suffolk Law: STEM CELLS: 2006 SCIENCE, LAW & BUSINESS, Annual Intellectual Property Law Conference Georgetown Law & Economics: Ronen Avraham, Northwestern University School of Law Georgetown Law, Conference on Economic and Social Inequality:The Role of Race in Law, Markets, and Social Structures. Florida State Law: Roberto Romano, Yale Law School Legal Theory Lexicon: Virtue Jurisprudence
This entry in the Legal Theory Lexicon series provides an introduction to "virtue jurisprudence." As always, the discussion is aimed at law students, especially first-year law students, with an interest in legal theory. Modern Moral Philosophy and Contemporary Legal Theory The Legal Theory Lexicon already includes entries on Utilitarianism and Deontology, two of the most influential approaches for moral philosophy. In an essay titled Modern Moral Philosophy, Elizabeth Anscombe famously noted persistent problems with the deontological and utilitarian approaches that dominated normative ethics when she wrote in 1958. Anscombe's suggestion was for moral philosophers to return to Aristotle, and that is just what happened. Starting in the 1960s and accelerating through the 1980s and 1990s, there was a trickle and then an avalanche of philosophical work on virtue ethics--an approach to moral theory that emphasizes character and the virtues--as opposed to right action (deontology) or good consequences (utilitarianism). A prior entry in the Legal Theory Lexicon provided an introduction to virtue ethics and you might want to review that before you continue with this post. Modern legal theory has strong connections with modern moral philosophy. Historically, the connection is evident in the work of Jeremy Bentham: his work combined a conceptual separation of law and morality with a utilitarian program of legal reform. Contemporary legal scholarship frequently invokes general moral theories, including preference-satisfaction utilitarianism and deontological theories like Kant’s, to make arguments about what the law should be. Such normative legal theories are addressed to lawmakers (in the broad sense), including legislators and adjudicators. Developments in political philosophy, sparked by John Rawls’s A Theory of Justice and its libertarian and communitarian critics, have met with avid attention from the legal academy. Virtue Ethics and Legal Theory There is, however, an exception to general reflection of developments in moral philosophy in legal theory. Legal philosophy (as practiced by philosophers or academic lawyers) has only recently paid attention to one of the most significant developments in moral theory in the second half of the twentieth century, the emergence of virtue ethics. An outpouring of articles and monographs attests to the interest of philosophers in virtue ethics. In the law, the situation has been different. The hegemony of deontological and utilitarian theories prevails, at least among legal theorists working in the common-law tradition. There are, however, a growing number of exceptions to this hegemony. Kyron Huygens (of Punishment Theory) and Stephen Bainbridge (of ProfessorBainbridge.com) are just two of a growing number of legal scholars who have discussed virtue ethics in their work. Towards a Virtue Jurisprudence A full account of the implications of virtue ethics and epistemology for legal theory is a very large topic. Among the issues raised by virtue jurisprudence are the following: A Virtue-Centered Theory of Judging How would a virtue-centered theory of judging go? Let’s begin with the uncontroversial idea that good judging is inconsistent with the worst judicial vices and that it requires some minimal set of judicial virtues.
Are there judicial vices that are inconsistent with excellence in judging? Once asked, the question answers itself. Hardly anyone thinks that corruption and incompetence are consistent with excellence in judging. We can systematize the worst judicial vices, borrowing Aristotle’s distinction between intellectual and moral character traits. There are two important intellectual vices that are inconsistent with excellent judging. The first of these is judicial stupidity. Judges who suffer from this vice in its worst form lack the intelligence (and hence also the knowledge) necessary to do the complex intellectual work required of judges. They do not know what the rules of law are, and they are unable to see how they could be applied in particular fact situations. The second intellectual vice is judicial foolishness. Even a very smart judge can have terrible practical judgment. A foolish judge may know the law, but he cannot discern the difference between the rules that are important to the case and those that are only marginally relevant. Foolish judges are likely to make impractical demands are the lawyers and parties who appear before them. There are also moral vices that should are inconsistent with excellent adjudication. The most obvious of these is corruption. Judges should not accept bribes. Although judges are only infrequently in physical danger, they are more frequently faced with situations in which rendering the legally correct decision might injure their popularity, social standing, or opportunities for promotion or nonjudicial work. Hence we should not select civil cowards for judicial office. Judges are often placed in anger-inducing situations. A judge who is prone to fly off the handle at small provocations is not likely to be effective in the courtroom, and hence we ought not to select the hot-tempered for judicial office. What I have offered is a thin theory of judicial vice. This is a thin theory, because it rests on very weak assumptions about what counts as bad character. So far as I can see, no sensible normative account of judicial selection provides good reasons to reject the normative implications of the thin theory of judicial vice. No one wants stupid, foolish, corrupt, cowardly, or hot-tempered judges. Of course, these vices are not always apparent when candidates are nominated and confirmed for judicial office. There are, I am afraid, some judges on the bench today who possess the full range of these vices. The Thin Theory of Judicial Virtue The next step in our investigation of the judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of judicial virtues. Why? The basic reason is conceptual: virtue is required for the absence of vice. To select a judge who lacks the intellectual defect of judicial stupidity, you must select a candidate who has the corresponding virtue of judicial intelligence. To avoid, civic cowardice, you must select a judge with the virtue of civic courage. To avoid corruption, you must select a judge with the virtue of temperance. To avoid, ill temper, you must look for candidates who have judicial temperaments. A fully-developed virtue jurisprudence would flesh out this list of judicial virtues--specifying the character traits and mental abilities that make for good judging.
Judicial Courage A second virtue, judicial courage is a form of “civic courage.” The courageous judge is willing to risk career and reputation for the ends of justice. Judicial Temperament A third virtue, judicial temperament, corresponds to the vice of bad temper. The traditional concern in judicial selection with judicial temperament is illuminated by Aristotle's account of the virtue of good temper or proates: the disposition to anger that is proportionate to the provocation and the situation. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner. Judicial Intelligence The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry. Of course, judicial intelligence is related to theoretical wisdom in general, but the two are not necessarily identical. The talents that produce theoretical wisdom in the law may be different from those that produce the analogous intellectual virtue in physics, philosophy, or microbiology. Or it may be that theoretical wisdom is the same for all these disciplines. If this is the case, then judicial intelligence may simply be general theoretical wisdom supplemented by the skills or knacks that produce fine legal thought combined with deep knowledge of the law. Judicial Wisdom The final virtue on my short list is the corrective for bad judgment or foolishness. I shall use the phrase “judicial wisdom” to refer to a judge’s possession of the virtue of phronesis or practical wisdom: the good judge must possess practical wisdom in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances. The person of practical wisdom knows which particular ends are worth pursuing and knows which means are best suited to achieve those ends. Judicial wisdom is simply the virtue of practical wisdom as applied to the choices that must be made by judges. The practically wise judge has developed excellence in knowing what goals to pursue in the particular case and excellence in choosing the means to accomplish those goals. In the literature of legal theory, Karl Llewellyn’s notion of “situation sense” captures much of the content of the notion that judicial wisdom corresponds to the intellectual virtue of phronesis. This abstract account of judicial wisdom can be made more concrete by considering the contrast between practical wisdom and theoretical wisdom in the judicial context. The judge who possesses theoretical wisdom is the master of legal theory, with the ability to engage in sophisticated legal reasoning and insight into subtle connections in legal doctrine. But even a judge who possesses judicial intelligence is not necessarily a reliably good judge, even if she employs the correct decision procedure in her judicial decision-making. Why not? An answer to this question begins by clarifying the distinction between judicial intelligence and judicial wisdom. An example may help. Consider Dworkin’s imaginary judge, Hercules, who decides cases by constructing the theory that fits and justifies the law as a whole; this task can only be accomplished by someone who is able to appreciate legal complexity and to see the subtle interconnections between various legal doctrines summarized in the slogan, “the law is a seamless web.” Moreover, Dworkin’s theory requires judges to have a special concern for the coherence of the law, a virtue we might call “judicial integrity.” But other normative theories of judging may not value this characteristic. For example, “judicial integrity” might not be important to an act-utilitarian theory of judging. Perhaps, the act-utilitarian would consider Hercules to be obsessed with consistency—the hobgoblin of a foolish mind. Instrumental and Virtue-Centered Theories Thick theories of judicial virtue may be divided in two kinds, instrumental and virtue-centered. Instrumental theories of judicial virtue are those which begin with some independent criteria for what constitutes a good judicial decision and then selects a list of judicial virtues based on those criteria. For example, many normative theories of judging are decision (or outcome) centered. A decision-centered theory offers criteria for what should count as a good, right, just, or legally valid decision. For a decision-centered theory of virtue, the notion of a correct decision is primary and the judicial virtues are derived from it. Thus, Dworkin’s description of Hercules begins with the criteria for good decisions and then constructs the ideal judge who is able to render such decisions. By way of contrast, a virtue-centered theory does not proceed in this way. Rather, a virtue-centered theory begins with the an account of the virtuous judges as primary and then proceed to derive the notion of a virtuous decision from it. A Virtue-Centered Theory So what would a virtue-centered theory look like? This is just a blog post, so I can only give you a brief outline. For the sake of simplicity and clarity, we can formulate a virtue-centered theory of judging in the form of five definitions: Conclusion Of course, this very short introduction raises many more questions than it answers. But I hope that even this very sketchy account of one aspect of virtue jurisprudence has sparked your interest. Some of the most interesting applications of virtue ethics to legal theory can be found in torts and criminal law, and we haven't even touched on those. Another very interesting set of questions arises from the notion that the aim of the law is to inculcate virtue--an idea that may be at odds with pluralist idea that morals is a matter of individual choice. For a short introduction to my own work, check out Virtue Jurisprudence: An Aretaic Theory of Judging. Saturday, March 18, 2006
Legal Theory Bookworm Ronald Dworkin's new book is out! The Legal Theory Bookworm recommends Justice in Robes by Ronald Dworkin. Here's a blurb:
Download of the Week The Download of the Week is Why Enable Litigation?: A Positive Externalities Theory of the Small Claims Class Action by William B. Rubenstein. Here is the abstract:
Friday, March 17, 2006
Friday Calendar
Villanova Law: James Fox, Stetson University School of Law Georgetown Law & Economics: Albert Choi, University of Virginia School of Law, "How Much Should an Acquirer Be Liable for its Target's Wrongdoing?" Conference Announcement: World Poverty & the Duty of Assistance at the London School of Economics
Conference Announcement: The Demandingness of Morality at Edinburgh
Conference Announcement: Gender & IP at American University
Workshop Announcement: Nationalism and Global Justice at Leuven
Thursday, March 16, 2006
McKenna on the Normative Foundations of Trademark Mark McKenna (Saint Louis University) has posted The Normative Foundations of Trademark Law on SSRN. Here is the abstract:
Symposium Announcement: Debt as Control at Cincinnati
Thursday Calendar
University of Michigan Law & Economics: Sam Vermont, Michigan (Humphrey Fellow), Independent Invention as a Defense to Patent Infringement UCLA Tax Policy & Public Finance: Dan Shaviro, NYU School of Law, Simplifying Assumptions: How Might the Politics of Consumption Tax Reform Affect (Impair) the End Product? Oxford Law Faculty: Oxford Colloquium on Security and Human Rights William Mitchell Law School: Christine Ver Ploeg, Cross-Cultural Dispute Resolution Loyola Law School, Los Angeles: Andrew Geddis, Senior Lecturer, Faculty of Law, University of Otago, New Zealand, "A Dual Track Democracy? The Symbolic Role of the Maori Seats in New Zealand's Electoral System" UC Berkeley Kadish Center: Ian Shapiro, Sterling Professor of Political Science and Henry R. Luce Director, Yale Center for International and Area Studies, Yale University, THE POLITICAL USES OF PUBLIC OPINION: LESSONS FROM THE ESTATE TAX REPEAL Florida State Law: Robert Weisberg, Stanford Law School Czarnezki on Dubitante Opinions Jason J. Czarnezki (Marquette University - Law School) has posted The Dubitante Opinion (Akron Law Review, Vol. 39, 2006) on SSRN. Here is the abstract:
Charlow on Religious Equality Robin Charlow (Hofstra University School of Law) has posted The Elusive Meaning of Religious Equality (Washington University Law Review, Vol. 83, No. 5, Winter 2006) on SSRN. Here is the abstract:
Whitford & Ochs on the Roots of Clemency Andrew B. Whitford and Holonna L. Ochs (University of Georgia - Department of Public Administration and Policy and University of Kansas) have posted The Political Roots of Executive Clemency on SSRN. Here is the abstract:
Stern on Victim-Specific Libel Laws Nat Stern (Florida State University College of Law) has posted The Doubtful Validity of Victim-Specific Libel Laws on SSRN. Here is the abstract:
Tillman on Congressional Continuity Seth Barrett Tillman has posted Model Continuity of Congress Statute on SSRN. Here is the abstract:
Wednesday, March 15, 2006
Request for Help on the Entry Level Hiring Report Based on prior experience, there are still dozens of unreported entry-level hires. Although I greatly appreciate complete information about candidates, I also need incomplete reports. If you know of an entry-level hire that is not yet included, please email me at lsolum@gmail.com. The current report can be found at this link. Conference Announcement: Action, Ethics, and Responsibility
Symposium Announcement: Corporate Law through History at Washington and Lee
Wednesday Calendar
University College, London: Adrian Blau (Manchester), Hobbesian deliberative democracy Solove's Census Daniel Solove's census of Law Professor Blogs has been updated. One tidbit:
Tuesday, March 14, 2006
Franklin on Presidential Popular Constitutionalism--Reposed with Link Fixed! David L. Franklin (DePaul College of Law) has posted Popular Constitutionalism as Presidential Constitutionalism? Some Cautionary Remarks (Chicago-Kent Law Review, Vol. 74, 2006) on SSRN. Here is the abstract:
Tuesday Calendar
Georgetown Colloquium on Constitutional Theory: William Scheuerman (political science, Minnesota), Carl Schmitt and the Road to Abu Ghraib University College, London, Constitutional Law Group: ‘Foxhunting, the Parliament Acts and the Courts’ with Sir John Laws, Lord Justice of Appeal, Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, Chair: Sir Roger Toulson, Judge of the High Court, Queen’s Bench Division, Chairman of the Law Commission Rubenstein on Small Claims Class Actions William B. Rubenstein (University of California, Los Angeles - School of Law) has posted Why Enable Litigation?: A Positive Externalities Theory of the Small Claims Class Action on SSRN. Here is the abstract:
Dolovich on Private Prisons Sharon Dolovich (Harvard University - Radcliffe Institute for Advanced Study) has posted State Punishment and Private Prisons Duke Law Journal, Vol. 55, No. 3, p. 439, December 2005) on SSRN. Here is the abstract:
Aprill on Churches, Politics, and Deductions Ellen P. Aprill (Loyola Law School (Los Angeles)) has posted Churches, Politics, and the Charitable Contribution Deduction (Boston College Law Review, Vol. 42, p. 843, 2001) on SSRN. Here is the abstract:
Monday, March 13, 2006
Solove on E-Prints Check out Daniel Solove's The E-Print Experiment on Concurring Opinions. Solove sent out emails that gave recipients a choice of hard copy, PDF by attachment, and the link to SSRN. He reports on the result in the post. Here's taste:
Monday Calendar
Georgetown Law & Philosophy: Rebecca Saxe (Cognitive Neuroscience, Harvard Society of Fellows) Vanderbilt Law & Politics Workshop: Tim Johnson, Minnesota Political Science & Jim Spriggs, UC-Davis Political Science University of Alabama Law: Ronald Wright, Wake Forest Hofstra Law: John DeWitt Gregory, Hofstra Law School, “Termination of Parental Rights Under the Adoption and Safe Families Act: Hitting the Poor Where it Hurts Most” Sunday, March 12, 2006
Legal Theory Calendar
Georgetown Law & Philosophy: Rebecca Saxe (Cognitive Neuroscience, Harvard Society of Fellows) Vanderbilt Law & Politics Workshop: Tim Johnson, Minnesota Political Science & Jim Spriggs, UC-Davis Political Science University of Alabama Law: Ronald Wright, Wake Forest Hofstra Law: John DeWitt Gregory, Hofstra Law School, “Termination of Parental Rights Under the Adoption and Safe Families Act: Hitting the Poor Where it Hurts Most”
University College, London, Constitutional Law Group: ‘Foxhunting, the Parliament Acts and the Courts’ with Sir John Laws, Lord Justice of Appeal, Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, Chair: Sir Roger Toulson, Judge of the High Court, Queen’s Bench Division, Chairman of the Law Commission
University College, London: Adrian Blau (Manchester), Hobbesian deliberative democracy
UCLA Tax Policy & Public Finance: Dan Shaviro, NYU School of Law, Simplifying Assumptions: How Might the Politics of Consumption Tax Reform Affect (Impair) the End Product? Oxford Law Faculty: Oxford Colloquium on Security and Human Rights William Mitchell Law School: Christine Ver Ploeg, Cross-Cultural Dispute Resolution Loyola Law School, Los Angeles: Andrew Geddis, Senior Lecturer, Faculty of Law, University of Otago, New Zealand, "A Dual Track Democracy? The Symbolic Role of the Maori Seats in New Zealand's Electoral System" UC Berkeley Kadish Center: Ian Shapiro, Sterling Professor of Political Science and Henry R. Luce Director, Yale Center for International and Area Studies, Yale University, THE POLITICAL USES OF PUBLIC OPINION: LESSONS FROM THE ESTATE TAX REPEAL Florida State Law: Robert Weisberg, Stanford Law School
Villanova Law: James Fox, Stetson University School of Law Georgetown Law & Economics: Albert Choi, University of Virginia School of Law, "How Much Should an Acquirer Be Liable for its Target's Wrongdoing?" Legal Theory Lexicon: Textualism
Three Levels of Interpretive Theory I find it helpful to separate out three different “levels” at which theories of legal interpretation can operate: The Plain Meaning of the Text Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.). But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type. An Excursion into Speakers Meaning and Sentence Meaning I may be making a mistake, but I think that textualism is illuminated by an excursion into what is sometimes called speech act theory, and in particular, by looking at the concepts of “speaker’s meaning” and “sentence meaning.” So here goes:
So when I blog, I know that the readers of blogs assign a particular meaning to the word “post,” and I also know that my readers know that I know that they know this blogospheric convention. So I can use the term “post” to refer to blog entries with confidence that my readers will understand what I mean. On the other hand, if I were writing about blogging for an audience that had never encountered a blog, I would probably need to define the term “post,” before I used it, and if I used the term “post” without defining it, then my audience would likely believe I was referring to mail and not blog entries. In other words, when someone speaks or writes for a particular audience on a particular occasion, the speaker or author can take into account what she knows about the audience, what the audience knows about her, but only insofar as the speaker knows that the audience knows what the speaker knows about the audience. Speaker’s meaning can be distinguished from sentence meaning. Sentence meaning is the meaning that an utterance has when the audience is unaware of the speaker’s intentions. When we identify sentence meaning, it is as if we were imaging a sot of generic speaker, who uttered the sentence in a generic context. Or putting this a bit differently, sentence meaning is the meaning we would assign sentences when we know that the speaker can’t assume that we are aware of special conventions and/or special intentions that would be relevant to meaning. Legal Texts, Sentence Meaning & Speaker’s Meaning Legal texts are sometimes intended for a timeless, generic readership. The authors of legislation, for example, know that many different actors (judges, lawyers, administrative officials, and ordinary citizens) will read the statute for an extended period of time in a variety of different conditions. Many of these readers will not be able to afford access to analysis of the legislative history of the statute; they will simply read the statute itself. Of course, they will know that the text they are reading is a statute, and they will therefore have a fair amount of knowledge about the likely intended meaning of various terms and phrases. Moreover, the legislature knows that the readers of statutes will have this knowledge. So it might make sense to assume that the speaker’s meaning that should be assigned to a legal text is a special version of the sentence meaning of the text, e.g. legal sentence meaning. Lawyers who counsel citizens and organizations do have the training to analyze legislative history, but can more easily and cheaply discern the plain meaning of a statute than some special meaning that only becomes clear once the legislative history is consulted. Moreover, analysis of legislative history can be quite complex, because some sources of legislative history (e.g. the statements of floor managers) are much more reliable than others (e.g. the statements of opponents of a bill or of the author of a bill). Because of the complexity of statutory interpretation, lawyers are likely to disagree about the meaning of legislative history and to err when predicting how a court will interpret legislative history. The same difficulties that afflict lawyers plague judges. Moreover, most legal research done for federal judges is done by very young lawyers serving as law clerks. This group usually lacks experience in researching legislative history, and their performance is likely to be highly variable. Moreover, because legislative history will frequently contain many conflicting, ambiguous, and vague statements, it is possible that legislative history is easily subject to manipulation, giving judges the opportunity to support their own policy preferences with evidence of the “intentions of the legislature.” Textualism as a Practical Methodology Even if textualism does not provide the best ideal theory of legal interpretation, it might be the case that textualism does provide the best practical method of interpretation given the capacities of real world judges and officials. Suppose that we want to interpret statutes to achieve the purposes of the legislature. At first blush, it might seem that the best way to do this would be to have courts and officials employ an intentionalist methodology, combing the legislative record for evidence of legislative intent. But as a practical matter, it may turn out that judges aren’t very good at doing this. So it might be the case that real-world judges are more likely to implement legislative purposes by employing a fairly simple plain-meaning approach as methodology for statutory interpretation. And to the extent that legislators know that judges will employ this approach, legislators could draft with the expectation that judges will use a plain-meaning methodology, which presumably would lead to even closer fit between the plain meaning and the achievement of legislative purpose. Conclusion “Textualism” is just one of many approaches to the theory of legal interpretation, but it is an especially good place to begin thinking about issues of interpretation in law. One of the very best ways to become a sophisticated thinker about these issues is to take a really good course in statutory interpretation. Not so long ago, statutory interpretation was considered a dead field, but today there is a tremendous flowering of interesting and exciting scholarship about the interpretation of statutes. I hope that this post has whetted your appetite! Saturday, March 11, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends The Politics of Precedent on the U.S. Supreme Court by Thomas G. Hansford, James F., II Spriggs. Here's a blurb:
Download of the Week The Download of the Week is "Silence and Freedom" by Michael Seidman. The link takes you excerpts from Mike's new book. Based on excerpts, this will be an important and deeply interesting work. Here's a taste:
These silences speak to us. They are a manifestation of connection, commitment, and meaning. When we are free in this deepest sense, we are able to communicate by how we act and by who we are. Words only get in the way. Second, even when silence is the result of alienation, we need to protect it in order to give meaning to speech. Put slightly differently, for speech to be truly free, there must also be silence. While in some contexts, silence is freedom, in others, it is the necessary frame for freedom. Friday, March 10, 2006
At Lewis and Clark Today I'm at the conference on Open Access Publishing and the Future of Legal Scholarship at Lewis and Clark in Portland today. As you might guess, I'm intensely interested in the topic. I hope to post later in the day about the discussion. Scroll up for the schedule and links to some of the papers. Friday Calendar
Thursday, March 09, 2006
Lash & Harrison on Marshall and the Minority Report on the Alien and Sedition Acts Kurt T. Lash and Alicia Harrison (Loyola Law School, Los Angeles) have posted Minority Report: John Marshall and the Defense of the Alien and Sedition Acts on SSRN. Here is the abstract:
Thursday Calendar
Yale Law Economics & Organizations: Professor Cecelia Rouse, Princeton/Economics, Do Accountability and Voucher Threats Improve Low-Performance Schools? University of Texas Law: Michael Seidman (Georgetown) "Silence and Freedom" University of Michigan Law & Economics: Michael Meurer, Boston University, Patents and Property USC-Caltech, Participatory Democracy Workshop: Kareem Crayton, Assistant Professor of Law and Political Science USC Gould School of Law, "When You Can't Beat Them..." (second link for the graphs) UCLA Tax: Robin Einhorn, U.C. Berkeley (History Department) Democracy, Slavery and Taxation: American Tax Systems in the Colonial and Revolutionary Eras UCLA Legal Theory Workshop: Rebecca Tushnet, Georgetown UC Berkeley, Kadish Cener: Wendy Brown, Political Science UC Berkeley, SOVEREIGNTY AND THE RETURN OF THE REPRESSED Fordham Law: Robin A. Lenhardt, Associate Professor of Law, Fordham University School of Law, "Rehinking Citizenship: Race Brooklyn Law: Jeffrey Rachlinski, Professor of Law, Cornell Law School, Does Unconscious Bias Affect Trial Judges? Loyola, Los Angeles: Eric Miller, Professor of Law, St. Louis University School of Law, "Role-Based Policing: Restraining Police Conduct 'Outside the Legitimate Investigative Sphere'" University of Arizona Law: Mona Hymel, Professor of Law, University of Arizona James E. Rogers College of Law, "The United States' Experience with Energy-Based Tax Incentives: The Evidence Supporting Tax Incentives for Renewable Energy" Wednesday, March 08, 2006
Wednesday Calendar
University College, London, Colloquium in Legal and Social Philosophy: Professor Hillel Steiner, Manchester, A Famous Conflict NYU Legal History: David Konig, Professor of Law & History, Washington University at St. Louis, "Credit, Courts, and the Formation of a Property Regime in Seventeenth-Century Virginia" University of Cincinnati Law: Rebecca Zietlow, University of Toledo College of Law, “Enforcing Equality: Congress, the Constitution and the Protection of Individual Rights.” Conference Announcement: Criminal Legislation and Sentenching at Hebrew University
Lecture Announcement: Perry on Capital Punishment at Brooklyn
Conference Announcement: Demandingness in Dundee
Tuesday, March 07, 2006
Lateral Hiring Report Updated The ongoing lateral report at Concurring Opinions has been updated: Lateral Moves by Law School Faculty 2006. Help on the Entry Level Report Thanks to everyone for all the help on the entry-level report, which now includes over 80 entry level hires. Please email reports to me at lsolum@gmail.com. In addition to reports of entry-level hires, I am also interested in hearing from schools that will not do any entry-level hiring in the 2005-06 hiring season. The current version of the report can be found at this link. Book Announcement:
Roundup on Rumsfeld v. Fair Paul Caron has an excellent roundup of reaction to the Supreme Court's Solomon Amendment decision. Conference Announcement: Nussbaum's Hiding from Humanity at Newcastle
Tuesday Calendar
University of Texas Law: Mechele Dickerson, "Ideology and Bankruptcy Reform" Northwestern Constitutional Theory: Caleb Nelson, Professor of Law and Albert Clark Tate Jr. Research Professor, University of Virginia, "Adjudication in the Political Branches" Marquette E. Harold Hallows Lecture: Judge Diane Sykes Georgetown Law: Gerard Magliocca (Indianapolis Indiana) Monday, March 06, 2006
Monday Calendar
University of Texas Law: Paul Wahlbeck (George Washington) "The Influence of Oral Arguments on the U.S. Supreme Court" UCLA Law: Professor Richard Berk, UCLA Department of Statistics, "New Claims about Executions and General Deterrence: Deja Vu All Over Again?" NYU Law: Stephen Holmes Hofstra Law: Andrew Schepard, Hofstra Law School, “Kramer vs. Kramer Revisited: The Divorce Lawyer’s Duty to Promote Responsible Conflict Management in the Best Interests of Children” Columbia Law & Economics: John P. Brown, National Economic Research Association, Are Four Big Auditing Firms Enough? Sunday, March 05, 2006
Legal Theory Calendar
University of Texas Law: Paul Wahlbeck (George Washington) "The Influence of Oral Arguments on the U.S. Supreme Court" UCLA Law: Professor Richard Berk, UCLA Department of Statistics, "New Claims about Executions and General Deterrence: Deja Vu All Over Again?" NYU Law: Stephen Holmes Hofstra Law: Andrew Schepard, Hofstra Law School, “Kramer vs. Kramer Revisited: The Divorce Lawyer’s Duty to Promote Responsible Conflict Management in the Best Interests of Children” Columbia Law & Economics: John P. Brown, National Economic Research Association, Are Four Big Auditing Firms Enough?
University of Texas Law: Mechele Dickerson, "Ideology and Bankruptcy Reform" Northwestern Constitutional Theory: Caleb Nelson, Professor of Law and Albert Clark Tate Jr. Research Professor, University of Virginia, "Adjudication in the Political Branches" Marquette E. Harold Hallows Lecture: Judge Diane Sykes Georgetown Law: Gerard Magliocca (Indianapolis Indiana)
University College, London, Colloquium in Legal and Social Philosophy: Professor Hillel Steiner, Manchester, A Famous Conflict NYU Legal History: David Konig, Professor of Law & History, Washington University at St. Louis, "Credit, Courts, and the Formation of a Property Regime in Seventeenth-Century Virginia" University of Cincinnati Law: Rebecca Zietlow, University of Toledo College of Law, “Enforcing Equality: Congress, the Constitution and the Protection of Individual Rights.”
Yale Law Economics & Organizations: Professor Cecelia Rouse, Princeton/Economics, Do Accountability and Voucher Threats Improve Low-Performance Schools? University of Texas Law: Michael Seidman (Georgetown) "Silence and Freedom" University of Michigan Law & Economics: Michael Meurer, Boston University, Patents and Property USC-Caltech, Participatory Democracy Workshop: Kareem Crayton, Assistant Professor of Law and Political Science USC Gould School of Law, "When You Can't Beat Them..." (second link for the graphs) UCLA Tax: Robin Einhorn, U.C. Berkeley (History Department) Democracy, Slavery and Taxation: American Tax Systems in the Colonial and Revolutionary Eras UCLA Legal Theory Workshop: Rebecca Tushnet, Georgetown UC Berkeley, Kadish Cener: Wendy Brown, Political Science UC Berkeley, SOVEREIGNTY AND THE RETURN OF THE REPRESSED Fordham Law: Robin A. Lenhardt, Associate Professor of Law, Fordham University School of Law, "Rehinking Citizenship: Race Brooklyn Law: Jeffrey Rachlinski, Professor of Law, Cornell Law School, Does Unconscious Bias Affect Trial Judges? Loyola, Los Angeles: Eric Miller, Professor of Law, St. Louis University School of Law, "Role-Based Policing: Restraining Police Conduct 'Outside the Legitimate Investigative Sphere'" University of Arizona Law: Mona Hymel, Professor of Law, University of Arizona James E. Rogers College of Law, "The United States' Experience with Energy-Based Tax Incentives: The Evidence Supporting Tax Incentives for Renewable Energy"
Legal Theory Lexicon: Public and Private Goods
It may be helpful to quickly preview the basic idea. So here goes: A Note on Terminology: "Public Goods" versus "Public Interest" versus "Public Resources." Before we go any further, let's make sure we agree about how we are using the phrase "public good." This is important because the same phrase is used for different purposes in different contexts. So let's stipulate to the following: The Criteria for Public Goods There are two criteria by which public goods and distinguished from private goods. A good is public only if it is both nonrivalrous and nonexcludable. A good is private only if it is both rivalrous and excludable. (We will deal with the mixed cases in just a bit.) "Rivalrousness" is a property of the consumption of a good. Consumption of a good is rivalrous if consumption by one individual X diminished the opportunity of other individuals, Y, Z, etc., to consume the good. Some goods are rivalrous because they are "used up." If I drink a glass of Heitz Martha's Vineyard, then you cannot drink that same glass of wine. If set off a firecracker, you cannot set off the same firecracker. Other goods are rivalrous because of crowding effects. If I am using the free internet terminal at the student lounge, then you cannot use the same time slice of the terminal--because only one person can sit in front of the screen at the same time. "Excludability" is also a property of consumption of a good. It is helpful to distinguish two forms of excludability: (1) excludability through self help, and (2) excludability through law. If I want to exclude you from my land, I can build a fence--the exclusion results from self help. But if I want to exclude you from copying a novel that I've written and I want to make the novel generally available for sale, self help will not work. (It would be ridiculously expensive to hire a guard to monitor each copy or every photocopy machine.) Government, however, can make unauthorized copying a criminal offense or actionable civil wrong, thereby creating exclusion through law. Markets and Government The conventional view is that markets should provide private goods and government should provide public goods. The case for market provision of private goods relies on the idea of Pareto efficiency. The weak Pareto Principle is the simple idea that if some action would make at least one person better off and no one worse off, then that action is good. If we have a private good, e.g. a widget, and a willing buyer and seller, then allowing the sale is Pareto efficient: the buyer prefers the widget to the money and the seller prefers the money to the widget. If we assume that the transaction has no external costs (harms to third parties), then allowing the transaction makes buyer and seller better off and hence is required by the weak Pareto principle. But when we come to public goods, markets simply don't work. Why not? Most simply, because if a good is nonexcludable, then no one will pay for it. Suppose someone goes into the business of cleaning the air with a pollution removal machine. I won't voluntarily pay for this service, because I will be able to breathe the air even if I don't pay. If a private firm offered to defend me against foreign invaders, I won't voluntarily sign on. My individual payment would have a negligible effect on the size of the armed force. If others pay, I don't need to. If others don't pay, then my payment won't do any good. Of course, you will recognize that I am describing the free rider problem, a form of the Prisoner's Dilemma. Because markets cannot provide public goods, governments should. As you might expect, the argument for government provision of public goods and market provision of private goods is controversial. Socialists argue that governments may do a better job of providing private goods, because government planning can create welfare benefits that cannot be realized by markets. Libertarian legal theorists argue that markets can provide most if not all private goods for various reasons, including arguments that nonexcludability can often be overcome by ingenious market solutions. I won't get into either the socialist or the libertarian critique of the argument for market provision of private goods and government provision of public goods, but you should know that these criticisms have been extensively developed. The Expanded Typology: Public, Private, Toll, and Common Pool Goods So far, we have been assuming that excludability and rivalrousness go together and hence that there are only two categories, public goods and private goods. In fact, it is possible to have a good that is rivalrous but nonexcludable or one that is nonrivalrous but excludable. So there are four categories, not two: Table One: Public, Private, Common Pool, Toll, and Club Goods. __________________________Excludable___________Nonexcludable___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Pure___________|_____Common_________| __________Rivalrous_|_____Private________|_____Pool___________| ____________________|_____Good___________|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Club Good______|____________________| ____________________|____________________|_____Pure___________| _______Nonrivalrous_|____________________|_____Public_________| ____________________|_____Toll Good______|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ We've covered the first two categories, but we need to consider categories three and four. So let's do that now. Toll Goods and Intellectual Property A toll good is characterized by nonrivalrous consumption but excludability. Suppose we have a highway in a rural area, where the capacity of the highway would never be approached even if access were free. Nonetheless, use of the highway can be limited by the installation of toll booths. This means that we can charge for access to the highway. Economists call goods that are nonrivalrous but excludable "toll goods." One of the most important applications of the concept of a toll good in legal theory arises in the context of intellectual property. A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. This copy could then be copied by others. Eventually, the "free" copies would dominate the market. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.) Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a toll good. Intellectual property law creates excludability, but not rivalrousness. For more on this, see Water Wells and MP3 Files: The Economics of Intellectual Property. Common Pool Goods and the "Tragedy of the Commons" Common pool goods are rivalrous but non excludable. An example might be the fish resource in those portions of the ocean that are outside national waters (the high seas). This resource is rivalrous, because over fishing can result in a reduction of the stock of fish. But excludability is difficult to establish. Self-help would work for a localized fishing area where the fish population does not range over a large area; in theory a patrol boat could establish a virtual fence. But this solution won't work if the fish population ranges over a wide area of the high seas. Unless some international treaty regime can establish enforceable quotas, the result may be a "tragedy of the commons." Each fisher has an incentive to take the most she can, but the result of all fishers doing this is a depletion in the stock of fish that harms everyone. (Once again, we have a version of the Prisoner's Dilemma.) Club Goods We are almost done, but we have one or two more ideas to pick up. One is the idea of a "club good." A club good is a good where the utility of each individual's consumption of the good is a function of the number of others who consume the good. Take a golf course. If too many people try to use the course simultaneously, then the utility that each derives from the experience goes down. Golfers have to wait for tee times, the course is crowded, and so forth. In other words, there are "crowding" problems. One solution to such problems is to form a "club," which limits the number of persons with the right to use the golf course. Private Goods and the "Tragedy of the Anticommons" And finally, we should note the flip side of the tragedy of the commons, dubbed by Frank Michelman, "the tragedy of the anticommons." This refers to the phenomenon where ownership in a resource has been divided among so many owners that transaction costs and holdout problems prevent Pareto efficient transactions from occurring. For example, when property was "privatized" in the former Soviet Union, a single apartment building might end up with many, many fractional owners, including ownership interests by various government entities and the residents of the building. In theory, every owner must agree before a transaction involving the building could take place. Given the large number of owners, the costs of completing the transaction and paying off the holdouts (those who withhold consent in order to increase their share of the profits) can make the transaction economically unattractive. This is a case where the market is incapable of efficiently allocating a pure private good. Conclusions The public/private goods distinction is basic to a variety of topics in legal theory. Whenever you encounter a resource allocation problem, ask yourself, "Is this resource a public, private, toll, or common pool good?" And then ask, "Could a change in the legal rules governing this resource change its status?" Although the terminology may be daunting at first, they are really very simple and straightforward. Saturday, March 04, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Before the Next Attack : Preserving Civil Liberties in An Age of Terrorism by Bruce Ackerman. Here is a blurb:
Download of the Week The Download of the Week is "Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening" by Adam Kolber. Here is the abstract:
Friday, March 03, 2006
Friday Calendar
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
Larson on the Constitutional Law of Treason Carlton Larson (UC Davis) has posted The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem on SSRN. Here is the abstract:
Thursday, March 02, 2006
Hoffman Writes the Best Puffery Article Ever David Hoffman (Temple) has posted The Best Puffery Article Ever (forthcoming Iowa Law Review) on SSRN. Here is the abstract:
Conference Announcement:
Lateral Hiring Report Check out Lateral Moves by Law School Faculty 2006 over at Concurring Opinions. Lot's of data! Thursday Calendar
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" Kolber on Therapeutic Forgetting Adam Kolber (University of San Diego School of Law) has posted "Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening" on SSRN. Here is the abstract:
Wednesday, March 01, 2006
Wednesday Calendar
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. |