Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Olin Program in Law and Economics Workshop +University of Michigan Law and Economics +University of San Diego Colloquium Series +University of Texas Colloquium Series +Vanderbilt Scholarly Programs & Events Calendar +Villanova +Washington & Lee Faculty Workshops +Yale Law, Economics & Organizations Workshop Calendars & Events +Aristotelian Society +British Society for Ethical Theory +Conference Alerts +Events in Analytic Philosophy in Europe (and Overseas Countries) +The Philosophical Calendar +Philosophy Now Calendar +Political Science Online Upcoming Conferences +SSRN Professional Announcements Other Programs --Australian National University, Research School of Social Science, Philosophy Seminars --Boston University Philosophy Colloquia --Brown University Philosoophy Upcoming Events George Mason Workshop in Philosophy, Politics, and Economics --Harvard University, Philosophy Colloquia --MIT Philosophy Colloquia --New York University, Philosophy Events --Oxford: Events at the Faculty of Philosophy --Princeton University: Philosophy Department Talks --Princeton University: Political Philosophy Colloquium --Princeton University: Public Law Colloquium --Princeton University: Seminar in Law and Public Affairs --Tulane Philosophy and Center for Ethics & Public Affairs Seminars --University College, London: Political Theory Seminars --University of Arizona Philosophy Colloquia --University of Bristol Philosophy Research Seminars --University of California at Berkeley Philosophy Events --University of California at San Diego Philosophy Colloquia --University of Chicago Political Theory Workshop --University of London, School of Advanced Study, Philosophy Programme --University of Manchester Politics & Philosophy Research Seminars --University of Melbourne Philosophy Events --University of North Carolina: Philosophy Speakers --University of Pennsylvania: Philosophy Colloquiua --University of Pittsburgh Philosophy Calendar --Yale Philosophy Department Talks Some Legal Theorist Homepages --Robert Alexy (Christian Albrechts University Kiel) --Randy Barnett (BU) --Brian Bix (Minnesota) --Jules Coleman(Yale Law & Philosophy) --Ronald Dworkin(NYU & University College) --John Finnis(Oxford and Notre Dame) --John Gardner (Oxford) --Brian Leiter (Texas) --Micahel Moore (Illinois) --Dennis Patterson (Rutgers, Camden) --Stephen Perry (NYU) --Richard Posner (University of Chicago & USCA7) --Joseph Raz (Oxford and Columbia) --Jeremy Waldron (Columbia More to come! Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Wednesday, May 31, 2006
Gillman at Empirical Legal Studies Blog Howard Gillman, about whom I cannot say enough good things, is guest blogging at Empirical Legal Studies blog. Check him out here, here, and here. Don't miss this. Wednesday Calendar
Welcome to the blogosphere . . . . . . to The Fire of Genius (Academic commentary about patent law, i.p. law, creativity, and more) by Joseph Miller of Lewis & Clark Law School. Tuesday, May 30, 2006
Hasen on Renewal of the Voting Rights Act Check out What Congress Should Consider Before Renewing the Voting Rights Act: A Chance to Preempt Supreme Court Invalidation, and Better Protect Minority Voting Rights by Rick Hasen on Findlaw. Here's a taste:
Welcome to the Blogosphere . . . . . . to Carrollogos by Michael Carroll of Villanova University School of Law (and the Board of Creative Commons. Seminar on Benkler at Crooked Timber Check out The Wealth of Networks seminar over at Crooked Timber! Here's a snippet:
Green on Rutledge & Executive Detention Craig Green (Temple University) has posted Wiley Rutledge, Executive Detention, and Judicial Conscience at War on SSRN. Here is the abstract:
Monday, May 29, 2006
Monday Calendar>
Leiter on Toleration of Religion Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted Why Tolerate Religion? on SSRN. Here is the abstract:
Van Alstine on Executive Foreign Affairs Lawmaking Michael P. Van Alstine (University of Maryland - School of Law) has posted Executive Aggrandizement in Foreign Affairs Lawmaking (UCLA Law Review, Vol. 54, 2006) on SSRN. Here is the abstract:
Kyriacou, Bacaria & Congleton on Menu Federalism Andreas P. Kyriacou , Jordi Bacaria and Roger Congleton (University of Girona - Department of Economics , Department d'Economia Aplicada and Center for Study of Public Choice) have posted A Theory of Menu Federalism: Decentralization by Political Agreement (Constitutional Political Economy, Vol. 14, pp. 167-190, 2003) on SSRN. Here is the abstract:
Symeonides on Territoriality and Personality in Tort Conflicts Symeon C. Symeonides (Willamette University - College of Law) has posted Territoriality and Personality in Tort Conflicts (INTERCONTINENTAL COOPERATION THROUGH PRIVATE INTERNATIONAL LAW: ESSAYS IN MEMORY OF PETER NYGH, T. Einhorn, K. Siehr, eds., pp. 401-433, T.M.C. Asser Press, 2004) on SSRN. Here is the abstract:
Sunday, May 28, 2006
Legal Theory Calendar
Oxford EC Law Discussion Group: Ulf Bernitz, The Duty to Refer Cases to the ECJ under Art 234 EC
Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Professor John Bell, 'Managing the Judiciary and Judicial Independence' Florida State University Law: Benjamin J. Priester, Florida State University College of Law Legal Theory Lexicon: Metaethics
"Metaethics" may sound rather esoteric, but, in fact, metaethical argumentation is very common, both in ordinary life and in legal theory. Perhaps the most familiar example is the use of moral relativism (or similar positions) in normative argumentation. When one party in an argument asserts something like, "Homosexuality is morally wrong," the reply might be, "No, it isn't. You are mistaken," but another common (perhaps more common) reply is, "That's just a value judgment." The implication is that moral judgments are relative or subjective or just an expression of emotional reactions. Metaethics is a very big topic, and even a cursory introduction is the subject of a whole course or monograph, but some very basic ideas and terminology can be introduced in a blog post. As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. Metaethical Questions Metaethics includes a variety of topics, and one good way to get a basic grasp on the field is to simply list some of the questions that are encompassed by (legal)metaethics: Cognitivism and Noncognitivism One of the most important debates in metaethics (from the point of view of normative legal theory) is the debate between cognitivism and noncognitivism. Very roughly, cognitivism is the position that moral statements (such as "There ought to be a constitutional right to privacy.") express beliefs that can be true or false. (Beliefs are "cognitive" states, hence the name "cognitivism.") Noncognitivism denies this and asserts that moral statements express noncognitive states, such as emotions or desires. Noncognitive states (emotions, desires) cannot be true or false. I think the best way to get a handle on this debate is to take a brief look at a very simple version of noncognitivism. A noncognitivist might assert that when some says that X is morally wrong, they are simply expressing an attitude of disapproval towards X. That is, "X is wrong" means "Boo X." When someone says "X is morally good," they are expressing an attitude of moral approval towards X. The Boo-Hooray theory is a crude version of emotivism--the theory that moral statements express emotions, associated with A.J. Ayer. As I'm sure you've already guessed, contemporary noncognitivists have theories that are more sophisticated than Ayer's; examples of such contemporary noncognitivist theories include Allan Gibbard's norm expressivism and Simon Blackburn's quasi realism. Cognitivsts assert that moral propositions express beliefs that have cognitive content and hence can be true or false (or at least correct or incorrect). The cognitivist landscape is complex. Some cognitivist theories hold that our moral beliefs track natural properties in the world; others cognitivist theories hold that our moral beliefs are about nonnatural properties: G.E. Moore had a theory like this. Still other cognitivists believe that moral statements can be true or false, but deny that they are about any states of affairs (natural or nonnatural). A simple example of a naturalist cognitivist theory might be the following: a utilitarian might believe that statements about the rightness or wrongness of actions are about natural states of the world, e.g. the natural properties of pleasure and pain: when I say, action X is right, I mean, X will produce the greatest balance of pleasure over pain as compared the alternative courses of action. In Legal Theory Lexicon 014: Fact and Value, we explored G.E. Moore's "open question" argument against naturalist forms of cognitivism. It goes without saying that debates over cognitivism and noncognitivism are much richer and complex than the simplified ideas that we've just explored, but the core idea--the distinction between cognitivism and noncognitivism--is accessible and hugely important. Moral Psychology Another important set of questions in metaethics concerns the relationship between moral judgments and motivation. Suppose one makes a moral judgment that X is morally obligatory. Does it follow that one is motivated to do X? Or can one believe that X is morally required with no motivation to do X? Lot's of folks find it very plausible to think that if one affirms "X is morally obligatory," then one has got to have a motive to do X. "Internalism" is the view that there is some internal or conceptual connection between moral judgments and motivation. "Externalism" is the view that the connection between moral judgment and motivation is external or contingent. For some forms of noncognitivism, the question whether there is an internal connection between moral judgment and motivation isn't much of a question. If moral statements simply express motivations (to take the easiest case), then it follows that the sentence X is morally obligatory would turn out just to mean, "I am motivated to do X." It will get more complicated for other forms of noncognitivism, but in general and vastly oversimplified terms, if morality is about desire or emotion and if desires or emotions motivate, then moral judgments are closely connected with motivations. But for cognitivists, things are not so easy. Let's take our utilitarian naturalist cognitivist as an example. I know that if I stop working on my blog and start working for Oxfam, I can produce better consequences. If internalism were true, this would give me a motive to stop working on the blog. Assuming that Hume was right and motives are desires plus beliefs, at the very least, I ought to feel some sort of tug (or other motivating state) pulling in the direction of working for Oxfam. But I don't, in fact, feel such a tug. One way to square these facts (assuming they were true) with cognitivism is to deny that there is an internal connection between moral judgments and motivations. Thus, I might think that some external sanction or internalized norm must be added to the moral judgment in order to produce motivating force. Conclusion Normative legal theory necessarily implicates metaethics. Most normative legal theorists explicitly or implicitly assert that their positions are true (or at least correct) and that inconsistent positions are false (or incorrect). That means that most normative legal theories rest on metaethical assumptions. That doesn't mean that you need to be an expert in metaethics to be a good normative legal theorist, but it sure helps to know the very general outlines of the terrain! Bibliography Saturday, May 27, 2006
Legal Theory Bookworm I've been thinking recently about "introductions" to normative theory--the kind of books you would recommend as a jumping off point for someone who is interested in acquiring a basic skill set in normative legal theory, but has never studied moral or political philosophy. I'm still not sure about my final list, but here are some preliminary thoughts:
Download of the Week The Download of the Week is Behavioral Economics and Fundamental Tax Reform by Ed McCaffery. Here is the abstract:
Friday, May 26, 2006
Perry on Charitable Contributions & an Ideal Estate Tax Miranda Perry (University of Colorado) has posted Charitable Contributions in an Ideal Estate Tax on SSRN. Here is the abstract:
Esty on Globalizing Administrative Law Daniel C. Esty (Yale Law School) has posted Good Governance at the Supranational Scale: Globalizing Administrative Law (Yale Law Journal, Vol. 115, pp. 1490-1562, 2006) on SSRN. Here is the abstract:
Smythe on Shareholder Democracy Donald J. Smythe (Washington and Lee University) has posted Shareholder Democracy and the Economic Purpose of the Corporation (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:
Rossi on Restructuring Electric Utilities Jim Rossi (Florida State University College of Law) has posted Redeeming Judicial Review: The Hard Look Doctrine and Federal Regulatory Efforts to Restructure the Electric Utility Industry (Wisconsin Law Review, pp. 763-837, 2004) on SSRN. Here is the abstract:
Glicksman on Environmental Federalism Robert L. Glicksman (University of Kansas - School of Law) has posted From Cooperative to Inoperative Federalism: The Perverse Mutation of Environmental Law and Policy (Wake Forest Law Review, 2006) on SSRN. Here's the abstract:
Hunt & Laszlo on Bribery Jennifer Hunt and Sonia Laszlo (McGill University - Department of Economics and McGill University - Department of Economics) have posted Bribery: Who Pays, Who Refuses, What Are The Payoffs? on SSRN. Here is the abstract:
Kaplan in Lisbon
Thursday, May 25, 2006
Garrett & Tetlow on Katrina & the Constitution Brandon L. Garrett (University of Virginia - School of Law) & Tania Tetlow (Tulane University - School of Law) have posted Criminal Justice Collapse: The Constitution after Hurricane Katrina on SSRN. Here is the abstract:
Conference Announcement: Law & Technology at MIT
Conference Announcement: The Future of Democracy at William & Mary
Thursday Calendar
Wednesday, May 24, 2006
Leib & Ponet on Citizen Representation on the Jury Ethan J. Leib (University of California, Hastings College of the Law) & David L Ponet (Columbia University) have posted Citizen Representation and the American Jury on SSRN. Here is the abstract:
Most Cited Cases Check out What Is the Most Heavily-Cited Tax Case? over at TaxProf Blog, which actually discusses all of the most cited United States Supreme Court cases. Conference Announcement: Colloquium on Labor and Employment Law at Marquette
New from Law & Politics Book Review
COMMUNITY RESOURCES: INTELLECTUAL PROPERTY, INTERNATIONAL TRADE AND PROTECTION OF TRADITIONAL KNOWLEDGE, by Johanna Gibson. Burlington, VT: Ashgate Publishing Company, 2005. 396pp. Cloth. $114.95/£60.00. ISBN: 0-7546-4436-7. Reviewed by Robert G. Brookshire. REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, by Roger C. Cramton and Paul D. Carrington (eds). Durham, NC: Carolina Academic Press, 2006. 516pp. Paper. $45.00. ISBN: 1-59460-213-1. Reviewed by Chris W. Bonneau. MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS, by Anita Bernstein (ed). New York: New York University Press, 2006. 255pp. Cloth. $40 ISBN: 0814799299. Reviewed by Elizabeth Ellen Gordon. Tuesday, May 23, 2006
Bell and Parchomovsky on Public Use Abraham Bell and Gideon Parchomovsky (Bar Ilan University - Faculty of Law and University of Pennsylvania - School of Law) have posted The Uselessness of Public Use on SSRN. Here is the abstract:
Saban on Minority Rights in Deeply Divided Societies Ilan Saban (University of Haifa - Faculty of Law) has posted Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel on SSRN. Here is the abstract:
Vermont on Independent Invention Samson Vermont (George Mason University School of Law) has posted Independent Invention as a Defense to Patent Infringement (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
Forell on Provocation & Gender Equality Caroline Anne Forell (University of Oregon - School of Law) has posted Gender Equality, Social Values and Provocation Law in the United States, Canada and Australia (Journal of Gender, Social Policy and the Law, Vol. 14, 2006) on SSRN. Here is the abstract:
Monday, May 22, 2006
International Political Theory: The IPT Beacon Check out the website the "International Political Theory Beacon." Here's a description:
Nagel’s Atlas, Philosophy and Public Affairs, 34.2 (2006) by A. J. Julius and Extra Rempublicam, Nulla Justicia, Philosophy & Public Affairs, 34.2 (2006) by Joshua Cohen and Charles Sabel McCaffery on Behavioral Economics & Tax Reform Ed McCaffery (University of Southern California) has posted Behavioral Economics and Fundamental Tax Reform on SSRN. Here is the abstract:
Sunday, May 21, 2006
Legal Theory Calendar
Legal Theory Lexicon: Functional Explanation in Legal Theory
Why do legal rules have the form and content that they do, in fact, have? One answer to this question is based on the idea that the function of a rule can be part of a causal explanation of the content of the rule. Why does corporations law limit the liability of stockholders? One kind of answer to that question might begin: "That rule is the way it is, because it serves the interest of the capitalist class." Or, "The rule is that way, because that is the efficient rule, and common law adjudication selects for efficient rules." In other words, the content of the rule is explained (causally) by the function the rule serves. The Idea of a Functionalist Explanation Functionalist explanations are familiar to almost everyone, because of the important role they play in evolutionary biology. When we try to explain why an organism has a particular trait--why male peacock's have their feathers or why the elephants have trunks--we appeal to the function that the trait serves. Male peacock's have colorful feathers because that trait serves to attract female peacock's and hence the genes produce this trait are favored by evolution. Elephants have trunks, because they enable elephants to eat and drink more efficiently. In biology, functionalist explanations are scientifically valid, because we understand the causal mechanism whereby function plays a causal role. That causal mechanism is evolution, of course, and we have a very good explanation for how evolution works in the form of genetics. DNA (plus a lot of other stuff) provides the precise causal mechanism by which evolution operates. Functionalist Explanation in the Social Sciences Functionalist explanations are not limited to biology. Sociologists frequently explain social behavior on the basis of the social function that the behavior serves. Why does this group do a "rain dance"? Because the rain dance ritual serves to create social cohesion in times of stress. There is, however, a significance difference between functionalist explanation in biology and functionalist explanation in the social sciences. In biology, functionalist explanations are underwritten by a well-confirmed theory of the causal mechanism by which evolution functions. In social science, the causal mechanisms are murkier. What causal law explains how the social cohesion function of rain dances leads to their perpetuation across generations? Without an answer to questions like this, we have at least prima facie reason to be suspicious of functionalist explanations in the social sciences. This suspicion is enhanced because functionalist explanations can easily become nonfalsifiabile. In the case of biology, because evolutionary theory is well confirmed, we more or less know in advance that some functionalist explanation has got to be right--the question is which functionalist explanation is correct. In the case of social science, there is no well-confirmed general theory of social evolution, so it isn't necessarily the case that there is always a true functionalist explanation for any given social behavior. Functionalist Explanations in Legal Theory And that brings us to law. Functionalist explanations are frequently invoked in positive legal theory. That is, when we ask the question, "Why does the law have such and such content?", the answer frequently is, "Because such and such a rule functions in thus and so way." Here are some examples:
Legal Evolution Functionalist explanations are also implicit in any claim that the law evolves (where "evolves" is meant in a technical sense and is not a mere synonym for "changes"). The idea that legal systems evolve is very common, but there is not general theory of legal evolution that has the well-confirmed status of the corresponding theory of biological evolution. Be on the watch for claims about legal evolution; such claims frequently are not well thought out and almost always lack empirical support. Efficiency Another example of functionalist explanation in legal theory is the claim that the common law rules are efficient. "Why did the common law adopt the Learned Hand formula as the standard for negligence?" "Because that is the efficient standard." Sometimes these claims are accompanied by an account of the mechanism by which a common law system moves towards efficient legal rules. For example, it might be argued that inefficient legal rules will be subject to continuous litigation pressure; whereas efficient legal rules, once adopted, tend to facilitate settlement of disputes. For a very lucid explanation of the role of microfoundations in social science, I highly recommend Jon Elster's brilliant book Making Sense of Marx. And for an equally brilliant defense of functionalist explanations, consult G.A. Cohen's Karl Marx's Theory of History. (The debate between Cohen and Elster is one of the most interesting and important debates in contemporary philosophy of the social science.) Conclusion Let me conclude with a very short diatribe. Legal theorists need a basic understanding of positive legal theory. (I hope this is obvious to everyone!) That means that legal academics should, at a minimum, have a working familiarity with the general concepts of the methodology and theory of the social sciences, including basic ideas about the role of functionalist explanations. But almost no law schools (even the elite ones that train most academics) offer courses in the methodology of positive legal theory! That's bad. Real bad. Saturday, May 20, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Why People Obey the Law by Tom Tyler. Here's a blurb:
Download of the Week The Download of the Week uis Defending Imminence: From Battered Women to Iraq by Kim Ferzan. Here is the abstract:
Friday, May 19, 2006
Scalia on Foreign Law & Constitutional Interpretation Check out Scalia to Congress: Butt Out of Court's Use of Foreign Law by David Savage. Here's a snippet:
Perry on the Value of American Law Reviews Ronen Perry (University of Haifa) has posted The Relative Value of American Law Reviews: Refinement and Implementation on SSRN. Here is the abstract:
Friday Calendar
Thursday, May 18, 2006
Thursday Calendar
Oxford Public International Law Discussion Group: Dr Edward Kwakwa, The Role of the International Lawyer in an International Organization Oxford Law Faculty Invited Seminars in Constitutional Theory 2006: Martin Loughlin, speaking on The Idea of Public Law, with comments from Paul Craig, Richard Ekins, Nick Barber Florida State Law: Jonathan Klick, Florida State University College of Law, "Incomplete Contracts and Opportunism in Franchising Arrangements" (joint w/ Larry Ribstein and Bruce Kobayashi) University of Arizona Law: Jack Chin, The Tyranny of the Minority Entry Level Hiring Report--Last Call Until the End of Summer Tomorrow, I will do the final version of the entry-level report until the end of the summer. If you have a new report, a correction, or a report about a school that has not made any entry level hires, please forward it to me by Thursday, May 18. I will do a final version of the report, probably sometime in August, to include late hires and some additional analysis of the data. This post will move to the top of the blog until the 18th. And thanks to everyone who has contributed reports! The most recent revisions can be found here or scroll down. The most recent version is immediately below this post. Barros on Kelo Benjamin Barros (Widener University School of Law) has posted Nothing "Errant" About It: The Berman and Midkiff Conference Notes and How the Supreme Court Got to Kelo With Its Eyes Wide Open on SSRN. Here is the abstract:
Book Announcement: Why People Obey the Law by Tyler
Zwolinksi on Exploitation Matt Zwolinski (University of San Diego, Philosophy) has posted Sweatshops, Choice, and Exploitation on SSRN. Here is the abstract:
New from Law & Politics Book Review
DEBT'S DOMINION: A HISTORY OF BANKRUPTCY LAW IN AMERICA, by David A. Skeel, Jr. Princeton: Princeton University Press, 2001 (2nd Printing and Paperback edition, 2004). 296pp. Cloth. $67.50/£43.95. ISBN: 0-691-08810-1. Paper. $19.95/£12.95. ISBN: 0-691-11637-7. Reviewed by Thomas G.W. Telfer. BORROWING CONSTITUTIONAL DESIGNS: CONSTITUTIONAL LAW IN WEIMAR GERMANY AND THE FRENCH FIFTH REPUBLIC, by Cindy Skach. Princeton: Princeton University Press, 2005. 192pp. Cloth. $29.95/£18.95. ISBN: 0-691-12345-4. Reviewed by Amalia D. Kessler. BREACH OF TRUST: HOW THE WARREN COMMISSION FAILED THE NATION AND WHY, by Gerald D. McKnight. Lawrence, Kansas: University Press of Kansas, 2005. 512pp. Cloth. $29.95. ISBN: 0-7006-1390-0. Reviewed by David A. Yalof. CONFRONTING SEXUAL HARASSMENT: THE LAW AND POLITICS OF EVERYDAY LIFE, by Anna-Maria Marshall. Burlington, VT: Ashgate Publishing Co, 2005. 200pp. Hardback. $89.95/£55.00. ISBN: 0754625206. Reviewed by Susan M. Behuniak. POLITICAL DEMOCRACY, TRUST, AND SOCIAL JUSTICE: A COMPARATIVE OVERVIEW, by Charles F. Andrain and James T. Smith. Boston: Northeastern University Press, 2005. 231pp. Cloth. $65.00. ISBN: 1-55553-645-X. Paper. $26.00. ISBN: 1-55553-646-8. Reviewed by Helen J. Knowles. LAW, CULTURE, AND RITUAL: DISPUTING SYSTEMS IN CROSS-CULTURAL CONTEXT, by Oscar G. Chase. New York: New York University Press, 2005. 224pp. Cloth. $45.00. ISBN: 0814716512. Reviewed by: Gad Barzilai. Wednesday, May 17, 2006
Law School Entry Level Hiring Report (2005-06 Hiring Season): Version 4.18 (last modified on 18 May 2006)
The report covers hirings to entry-level tenure-track positions at American law schools. It does not cover lateral hiring, hiring by law schools located outside of the United States, or hiring by non-law school legal studies programs. As in part years, I will continue to move the report to the top of the blog, adding new data as it comes in. After the data set begins to become "complete," I will begin to add various reports and graphic material. 161 reports have been received as of version 4.18. Of these, 40 candidates had a JD without either an advanced degree of a post-doc/pre-tenure position such as a VAP or fellowship. 43 candidates had an advanced doctorate such as a PhD, SJD, or DPhil, and 43 candidates had some other advanced degree, usually a masters. 88 candidates have done some kind of post-doc/pre-tenure program. 23 candidates had the “hat trick” of a JD plus an advanced doctorate plus a post-doc/pre-tenure position; 53 candidates had the JD plus some advanced degree and a post-doc/pre-tenure position. The mean JD graduation date as of version 4.18 was 1999. The median graduation date was 2000. The mode was 19, shared by 2000 and 2001. As of version 4.18, 1 new hire had a first law degree awarded in 2006, 5 new hires graduated in 2005; 9 in 2004; 11 in 2003; and 15 in 2002. 1 new hire graduated in 1975; 1 in 1984; and 1 in 1985. Only 7 pre-1990 graduates recieved entry-level offers. Adding to the Report To report a new hire not yet listed or to correct a current listing, email me at lsolum@gmail.com. Incomplete reports are welcome! This time around, I am trying to collect the following data elements:
The Tournaments
Fernanda Nicola, Laurea in Legge Turin 2000, SJD Harvard 2006, PhD Law, Trento 2006 Ezra Rosser, JD Harvard 2003, MPhil Land Economy Cambridge 2004, Westerfield Fellow Loyola University New Orleans Dennis Ventry, JD NYU 2004, PHD History (Economic & Legal) University of California at Santa Barbera 2001, Visiting Scholar in Taxation UCLA
Robert D. Sloane, JD Yale 2000, Associate-in-Law Columbia 2005-2006, Visiting Lecturer-in-Law & Research Fellow Yale 2004-2005 Charles Whitehead, JD Columbia 1986, Research Fellow and Director, Transactional Studies, Columbia
Max Minzner, JD Yale 1999
New: Bobby Dexter, JD Harvard 1992, Fellowship Loyola New Orleans
New: Olatunde Johnson, JD Stanford 1995, Kellis Parker Research Fellow, Columbia
David Cohen, JD Columbia, 1997 Dana Irwin, JD Yale, 2002>
Lorelei Ritchie de Larena, J.D. Columbia 1996 Lesley Wexler, J.D. University of Chicago 2002, Bigelow Fellow at Chicago
Samson Vermont, JD Georgia __, LLM U. Va. 2005, Humphrey Law and Economics Fellow, University of Michigan
David Fontana, JD Yale 2005, D.Phil Socio-Legal Studies Oxford (expected 2006)
William Gallagher, JD UCLA 1994, PhD Law/Jurisprudence & Social Policy, University of California at Berkeley 1993
Angelique A. EagleWoman, JD University of North Dakota 1998, LL.M. American Indian and Indigenous Law University of Tulsa College of Law 2004 Stacey A. Tovino, JD University of Houston Law Center 1997, Ph.D. Health Care Ethics University of Texas 2006,Visiting Assistant Professor University of Houston Law Center
Elizabeth M. Glazer, JD Chicago 2004, MA Philosophy University of Pennsylvania 2001
H. Tomas Gomez-Arostegui, JD University of Southern California 1997, LLM (European IP) University of Oslo 2004, Visiting Researcher and Lecturer University of Oslo
New: Cesare Romano, PhD International Law Geneva (date?), Visiting Professor, Amsterdam
Margaret Satterthwaite, JD NYU 1999, MA English U.C. Santa Cruz 1995, Clinical Instructor NYU
New: Laurel Haskell, JD Minnesota 1997
Annecoos Wiersema, LLB London School of Economics 1998, SJD Harvard 2004, Visiting Assistant Professor University of Denver
Michael O'Shea, JD Harvard 2001, MA Philosophy Pittsburgh 1998
Emily Gold Waldman, JD Harvard 2002
Rose Cuison Villazor, JD American University Washington College of Law 2000, LLM Columbia Law School 2006, Human Rights Fellow, Columbia Law School
Y.S. (Steve) Lee, BA (Law) Cambridge 1993, PhD (Law) Cambridge 2004, Visiting Research Fellow, University of North Carolina at Chapel Hill School of Law
New: Molly Walker Wilson, JD University of Virginia 2004, PhD Psychology University of Virginia 2004
Colin Marks, JD University of Houston 2001
C.A. Harwell Wells, JD Vanderbilt 2001, PhD Modern American History University of Virginia 1998
Bill Jeffery, JD Stanford 1975 Glenn Roque-Jackson, JD Harvard 1992
Kirsten Rabe Smolensky, JD University of Chicago 2002, Bigelow University of Chicago Brent White, JD NYU 1998, VAP NYU
New: Sharon E. Foster, JD Loyola Law School Los Angeles 1987, PhD Law University of Edinburgh anticipated 2006, Clinical Associate Professor (Legal Research and Writing) University of Arkansas, Fayetteville New: Ned Snow, JD Harvard 2003
Melissa Murray, JD Yale 2002, Associate in Law, Columbia
Jacob Katz Cogan, JD Yale 1999, PhD History Princeton 2002, VAP University of Chicago
Sonja West, J.D. Chicago 1998, BA Journalism University of Iowa 1993, Hugo Black Faculty Fellow University of Alabama
New: Melynda Price, JD Texas 2002, PhD Political Science Michigan 2006
Ben Depoorter, Bachelor and Master in Law Ghent 1998, M.A. Hamburg 1999, LL.M. Yale 2003, PhD Economics Ghent 2003, SJD Yale expected, VAP George Mason
Scott Hershovitz, JD Yale 2004, D.Phil. Law University of Oxford 2001
David Mitchell, JD University of Pennsylvania 2002, PhD Sociology University of Pennsylvania (date?)
Anthony Schutz, JD Nebraska 2003, Lecturer Cornell Michelle Harner, JD Ohio State University 1995
Katharine Traylor Schaffzin, JD Temple University 2000, LLM Legal Education Temple University 2006, Abraham L. Freedman Fellow & Lecturer in Law Temple University
Serena Mayeri, JD Yale 2001, PhD History Yale 2006, Golieb Fellow NYU
Noah Sachs, JD Stanford (date?), MPP Princeton (date?), Climenko Fellowship Harvard
New: Schmuel Leshem, LLB Hebrew 1997, SJD NYU 2005
Toby Heytens, JD University of Virginia 2000, Visiting Assistant Professor Cornell
New: Sylvia Kang'ara, LLB University of Nairobi 1996, SJD Harvard 2003, VAP Oklahoma City Dongsheng Zang, LLB Beijing Colege of Economics, SJD Harvard, VAP University of Washington
Stephanie Tai, JD Georgetown 2000, PhD Chemistry Tufts 1997, Visiting Associate Professor Washington & Lee
Nita Farahany, JD Duke 2004, PhD* Philosophy Duke 2006 (*expected), Fellow and Instructor in Law Vanderbilt New: Terry Maroney, JD NYU 1998, NYU Furman Fellow, USC Law Fellow
New: Joy Mullane, J.D. Florida 1999, LL.M. Florida in Tax 2003, Visiting Assistant Professor at the University of Florida Levin College of Law New: Teressa Ravenell, J.D. Columbia 2002, Visiting Assistant Professor at the College of William and Mary Marshall Wythe School of Law Chaim Saiman, JD Columbia 2001, Olin Fellow, Harvard, Golieb Fellow, NYU
Omari Simmons, JD University of Pennsylvania 1999
Emily Hughes, JD Michigan 1997, MA International Relations Yale 1992, Associate Director Death Penalty Clinic DePaul Rebecca Hollander-Blumoff, JD Harvard 1996, PhD Candidate Psychology NYU, Research Fellow NYU
Susan Evans Cancelosi, JD Cornell 1992, LLM University of Houston, Research Professor Houston Steven Davidoff, JD Columbia 1995, M.Finance London Business School 2005 Lance Gable, J.D. Georgetown 2001, M.P.H. from Johns Hopkins University (2001), Professorial Lecturer Georgetown New: Dana Roach, JD Michigan 1999
Keith Cunningham-Parmeter, JD Stanford 2002 Jeffrey Dobbins, JD Duke 1994 Judith Wise, JD University of Chicago 1997, M.A. Sociology University of Chicago 1994, Visiting Assistant Professor Florida State
Sunstein on Dworkin Check out RONALD DWORKIN AND HIS CRITICS. Virtues and Verdicts by Cass Sunstein at the New Republic. (Unfortunately, subscription required.) Winkler on Fundamental Rights Adam Winkler (University of California, Los Angeles - School of Law) has posted Fundamentally Wrong About Fundamental Rights (Constitutional Commentary, 2006) on SSRN. Here is the abstract:
Avraham on State Tort Reform Ronen Avraham (Northwestern University - School of Law) has posted Database of State Tort Law Reforms on SSRN. Here is the abstract:
Hutchison on Leef on Right to Work Harry G. Hutchison (George Mason University School of Law) has posted Contemporary Unionism as a Fraternal Conceit? A Review of George C. Leef's Free Choice for Workers: A History of the Right-to-Work Movement on SSRN. Here is the abstract:
Engel on Competiton as a Dilemma Christoph Engel (Max Planck Institute for Research on Collective Goods) has posted Competition as a Socially Desirable Dilemma on SSRN. Here is the abstract:
Call for Papers: Tort Law & the Modern State
Tuesday, May 16, 2006
Tuesday Calendar
Oxford EC Law Discussion Group:: Erika Szyszczak, Balancing Values in the European Union Ferzan on Imminence Kimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law-Camden) has posted Defending Imminence: From Battered Women to Iraq (Arizona Law Review, Vol. 46, 2004) on SSRN. Here is the abstract:
Gazal-Ayal on the Economics of Law & Economics Oren Gazal-Ayal (University of Haifa - Faculty of Law) has posted Economic Analysis of Law and Economics on SSRN. Here is the abstract:
Confernce Announcement: Political Violence at Oxford--Updated
Kahn on Race Specific Medicines Jonathan D. Kahn (Hamline University - School of Law) has posted From Disparity to Difference: How Race-Specific Mecicines May Undermine Policies to Address Inequalities in Health Care (Southern California Interdisciplinary Law Journal, Vol. 15, p. 105, 2005) on SSRN. Here is the abstract:
Eysenbach on Citation Rates for Open Access Scholarship Gunther Eysenbach1 (Centre for Global eHealth Innovation, University Health Network; and Department of Health Policy, Management and Evaluation, University of Toronto) has posted Citation Advantage of Open Access Articles on PLoS Biology. Here's the abstract:
Thanks to Paul Caron for the cite! Monday, May 15, 2006
Conference Announcement: Race, Crime & Citizenship at UCSB
Sunday, May 14, 2006
Legal Theory Calendar
Oxford EC Law Discussion Group:: Erika Szyszczak, Balancing Values in the European Union
Oxford Public International Law Discussion Group: Dr Edward Kwakwa, The Role of the International Lawyer in an International Organization Oxford Law Faculty Invited Seminars in Constitutional Theory 2006: Martin Loughlin, speaking on The Idea of Public Law, with comments from Paul Craig, Richard Ekins, Nick Barber Florida State Law: Jonathan Klick, Florida State University College of Law, "Incomplete Contracts and Opportunism in Franchising Arrangements" (joint w/ Larry Ribstein and Bruce Kobayashi) University of Arizona Law: Jack Chin, The Tyranny of the Minority
Legal Theory Lexicon: Primary and Secondary Rules
Once you've seen this distinction, you might then become interested in what legal theorists have to say about it. One of the most important views of this distinction was advanced by the great legal philosopher H.L.A. Hart, who classified the rules of tort and criminal law as "primary rules," and the rules of contract law as "secondary rules." This post is an introduction to the Hart's distinction between primary and secondary rules. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. The Distinction Between Primary and Secondary Rules Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules. More precisely, primary rules are rules that govern conduct, and secondary rules are rules that do not. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation. Some more examples may help:
Conclusion The distinction between primary rules of conduct and other, secondary rules is a crucial member of the legal theorist's toolbox. My own experience has been that I use this distinction to understand legal problems and arguments, but that it rarely plays a direct role in my own work. Primary and secondary rules are everywhere, and you need to understand the differenced between them, but you don't necessarily need to use the distinction when you construct normative legal arguments. One more thing. The place to go for a really thorough understanding of the distinction between primary and secondary rules is H.L.A. Hart's magnificent book, The Concept of Law--in my opinion, the most important work of legal theory in the twentieth century. Saturday, May 13, 2006
Symposium Announcement: First Annual Opinio Juris Symposium: Challenges to Public International Law
Legal Theory Bookworm The Legal Theory Bookworm recommends Frontiers of Justice : Disability, Nationality, Species Membership (The Tanner Lectures) by Martha Nussbaum. Here is a blurb:
Download of the Week The Download of the Week is Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within by Neal Kumar Katyal. Here is the abstract:
Friday, May 12, 2006
Friday Calendar
University of Texas Law: Steven Bank (UCLA) A Capital Lock-In Theory of the Corporate Income Tax at Texas Thursday, May 11, 2006
Rossi on State Executive Lawmaking in Crisis Jim Rossi (Florida State) has posted State Executive Lawmaking in Crisis on SSRN. Here is the abstract:
Thursday Calendar
University of London, Institute of Philosophy: Paul Mcnamara (New Hampshire), Supererogation and Utilitarianism Revisited: An inroad to the structure of commonsense morality Forum for European Philosophy, London: Joanna Zylinska, of swans and ugly ducklings: bioethics between humans, animals and machines Oxford Law Faculty, Invited Seminars in Constitutional Theory: Professor Joseph Jaconelli, ‘The Nature and Obligatory Force of Constitutional Conventions’ University College, London, Current Legal Problems Lecture: Prof Cheryl Saunders (Univeristy of Melbourne), 'Comparative Constitutional Law in the Courts: is there a Problem?' Welcome to the Blogosphere . . . . . . to Info/Law by Willaim McGeveran & Derek Bambauer:
Solove on the Jurisprudence of the Multistate Bar Exam Daniel Solove (George Washington) has posted The Multistate Bar Exam as a Theory of Law (104 Michigan L. Rev. 1403 (2006)) on SSRN. Here is the abstract:
Conference Announcement: Origins of Consciousness at San Marino
Wednesday, May 10, 2006
Wednesday Calendar
Institute of Education, London: Doret de Ruyter (Amsterdam), Can we Assist Children to Become Happily Flourishing Adults? Oxford Discussion Group on Organised Crime and Corruption Seminar Series: Dr Silvia Palano, Unemployment and Organised Crime in Southern Italy Oxford Criminology Seminar Series: Laura Piacentini, The Spatial System of Russian Penality Oxford Centre for Criminology:The Right Honourable Lord Phillips of Worth Matravers, Lord Chief Justice of England and Wales, Alternatives to Custody University College, London/Bindmans Annual Debate: 'Free Speech and the Political Process', Panellists:
Conference Announcement: Metaethics at Cambridge
Berenson on Liebman on Levi, Kalven, Llewellyn, Kurland, and Davis Bradford A. Berenson has a review of George Liebmann’s The Common Law Tradition: A Collective Portrait of Five Legal Scholars. Here's a taste:
Tuesday, May 09, 2006
Tuesday Calendar
Oxford, HLA Hart Memorial Lecture: Jules L. Coleman (Yale Law School), 'The Internal Point of View' DeGirolami on Religious Prisons Marc O. DeGirolami (Columbia University) has posted The New Religious Prisons and Their Retributivist Commitments (Arkansas Law Review, 2006) on SSRN. Here is the abstract:
Anderson on Corporate LIability and the Laws of War Kenneth Anderson (Washington College of Law, American University) has posted Kenneth Anderson Declaration on Issues of the Laws of War, Corporate Liability and Other Issues of International Law in Agent Orange ATS Litigation, November 2004 (VIETNAM ASSOCIATION FOR VICTIMS OF AGENT ORGANE/DIOXIN, ET AL., V. THE DOW CHEMICAL COMPANY, ET AL., United States Court Eastern District of New York, Judge Jack B. Weinstein, November 2, 2004) on SSRN. Here is the abstract:
Katyal on Internal Checks and Balances Neal Kumar Katyal (Georgetown University Law Center) has posted Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within (Yale Law Journal, Vol. 115, 2006) on SSRN. Here is the abstract:
Chen on Wickard v. Filburn Jim Chen (University of Minnesota Law School) has posted Filburn's Legacy (Emory Law Journal, Vol. 52, p. 1719, 2003) on SSRN. Here is the abstract:
Goldberg on Scalia, Kripke, and Wittgenstein Daniel Goldberg (University of Texas Medical Branch - Galvenston) has posted I do not Think it Means what you Think it Means: How Kripke and Wittgenstein's Analysis on Rule Following Undermines Justice Scalia's Textualism and Originalism on SSRN. Here is the abstract:
Monday, May 08, 2006
Monday Calendar
Oxford Centre for Socio-Legal Studies Seminar Series: Denis Galligan, "Regulation revisited" University College, London, Constitutional Law Group: 'A Modest (but Robust) Defence of Statutory Bills of Rights'
Oxford, HLA Hart Memorial Lecture: Jules L. Coleman (Yale Law School), 'The Internal Point of View' Call for Papers: Yale Law Journal
Bouchers on Same Sex Marriage & Full Faith Credit Patrick Joseph Borchers (Creighton University School of Law) has posted The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate (Creighton Law Review, Vol. 38, p. 353, 2005) on SSRN. Here is the abstract:
Levinson & Peng on Behavioral Economics & Cultural Difference Justin D. Levinson and Kaiping Peng (University of Hawaii at Manoa - William S. Richardson School of Law and University of California at Berkeley) has posted Valuing Cultural Differences in Behavioral Economics on SSRN. Here is the abstract:
Kahn on Parallelism and Horizontal Equity Jeffrey H. Kahn (Santa Clara University - School of Law) has posted The Mirage of Equivalence and the Ethereal Principles of Parallelism and Horizontal Equity (Hastings Law Journal, Vol. 57, p. 645, 2006) on SSRN. Here is the abstract:
Meese on the Ghose of Perfect Competition Alan J. Meese (College of William and Mary) has posted Market Failure and Non-Standard Contracting: How The Ghost of Perfect Competition Still Haunts Antitrust (Journal of Competition Law and Economics, Vol. 1, No. 1, pp. 21-95, 2005) on SSRN. Here is the abstract:
Sunday, May 07, 2006
Legal Theory Calendar
Oxford Centre for Socio-Legal Studies Seminar Series: Denis Galligan, "Regulation revisited" University College, London, Constitutional Law Group: 'A Modest (but Robust) Defence of Statutory Bills of Rights'
Oxford, HLA Hart Memorial Lecture: Jules L. Coleman (Yale Law School), 'The Internal Point of View'
Institute of Education, London: Doret de Ruyter (Amsterdam), Can we Assist Children to Become Happily Flourishing Adults? Oxford Discussion Group on Organised Crime and Corruption Seminar Series: Dr Silvia Palano, Unemployment and Organised Crime in Southern Italy Oxford Criminology Seminar Series: Laura Piacentini, The Spatial System of Russian Penality Oxford Centre for Criminology:The Right Honourable Lord Phillips of Worth Matravers, Lord Chief Justice of England and Wales, Alternatives to Custody University College, London/Bindmans Annual Debate: 'Free Speech and the Political Process', Panellists:
Forum for European Philosophy, London: Joanna Zylinska, of swans and ugly ducklings: bioethics between humans, animals and machines Oxford Law Faculty, Invited Seminars in Constitutional Theory: Professor Joseph Jaconelli, ‘The Nature and Obligatory Force of Constitutional Conventions’ University College, London, Current Legal Problems Lecture: Prof Cheryl Saunders (Univeristy of Melbourne), 'Comparative Constitutional Law in the Courts: is there a Problem?'
Legal Theory Lexicon: The Internal Point of View
Internal and External What is the difference between internal and external perspectives on the law? Obviously, we are dealing with a metaphor here. The idea is that one can look at the law from the inside or from the outside. Even if you have never encountered this distinction before, the intuitive idea is fairly clear. The internal point of view is the perspective of participants in the system. Thus, the internal point of view is paradigmatically the point of view of legal officials (such a judges). The external point of view is the perspective of outsiders. Thus, the external point of view is paradigmatically the point of view of a sociologist or anthropologist from a different culture, who observes the legal system. Here are some examples:
--Causal theories (e.g. a public-choice theory that explains why a particular area of law has come to be the way it is) are usually stated from the external point of view. In first-year law school courses, causal theories are usually stated in a very compact, even off-hand form. There may be a brief classroom discussion of the causal forces that shaped a particular legal doctrine, but it is fairly rare actually to read social science literature on topics like this. Rules and the Internal Point of View The internal point of view may have additional significance to legal theorists. One can argue that legal rules cannot be described from a purely external point of view. Huh? Imagine that you are an anthropologist from Mars, observing an earthly legal system. You would be able to note various regularities in behavior, but so long as you stuck to the purely external point of view, you would not be able to say anything about the content of the laws. In order to do that, you would need to ask the question "What is the meaning of the these legal texts and actions?" And to say anything about meaning, you would need to assume (at least hypothetically) something like the internal point of view. You would need to ask the question, "What does these behaviors are markings mean to those who are inside the practice of law?" If this argument is correct, then important consequences follow. Legal theorists are interested in legal theory. If the internal point of view is a necessary prerequisite for understanding the legal significance of the behavior of legal actors, then it would seem to follow that all legal theory requires that the theorist be able to assume the internal point of view at the stage where the theorist describes the legal phenomenon that are the object of study. Let me give an example of this rather abstract point. Suppose you want to develop a causal theory of tort law. You want to argue that there is an economic explanation of the emergence of negligence (as opposed to strict liability) as the primary standard of care in tort. The details of the theory don't matter, but let's assume you believe that inefficient legal standards create incentives for litigation and that a quasi-evolutionary process leads to the selection of efficient standards. And of course, you would need to argue that negligence is efficient. This theory is primarily stated from the external point of view, but it also relies on the legal meaning of the distinction between "negligence" and "strict liability"--concepts that can only be understood from the legal point of view. The central idea here is that the external point of view can describe the behavior of legal actors, but the internal point of view is required to understand the meaning of legal actions. Conclusion The distinction between the internal and external point of views is one of the basic ideas in legal theory. When you first begin to construct theories about the law, you should ask yourself, "Am I looking at this area of the law from the internal point of view or am I taking a perspective that is external to the law?" For more on theory construction, you might also want to look at an earlier post in the Legal Theory Lexicon series: Legal Theory Lexicon 016: Positive and Normative Legal Theories Saturday, May 06, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends An Introduction to Rights by William A. Edmundson. Here's a blurb:
Download of the Week The Download of the Week is Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism by Matthew Adler (Penn). Here is the abstract:
Friday, May 05, 2006
Friday Calendar
Oxford Law Faculty: Mr Justice Anselmo Reyes, "Sea Changes: Reflections on the Encounter between Common Law Judges and Personal Laws" Lupu & Tuttle on Federalism & Faith Ira C. Lupu and Robert W. Tuttle (George Washington University Law School and George Washington University Law School) have posted Federalism and Faith (Emory Law Journal, Randolph W. Thrower Symposium, Interactive Federalism: Filling the Gaps, Vol. 56, No. 1, 2006) on SSRN. Here is the abstract:
Rodriguez on the Properly Political Project of Administrative Law Daniel B. Rodriguez (University of San Diego School of Law) has posted Delegation, Risk Diversification, and the Properly Political Project of Administrative Law (Harvard Law Review Forum, Vol. 116, 2006) on SSRN. Here is the abstract:
Guthrie on Anchoring and Negotiation Chris Guthrie (Vanderbilt University - School of Law) has posted Anchoring, Information, Expertise, and Negotiation: New Insights from Meta-Analysis (Ohio State Journal on Dispute Resolution, 2006) on SSRN. Here is the abstract:
Levinson versus Tillman on Congressional Continuity Sandy Levinson has psoted Assuring Continuity of Government on SSRN. Here is the abstract:
Thursday, May 04, 2006
SSRN versus BE Press Check on Dan Markel's bepress and SSRN: Part II and BEPress vs. SSRN? with quotes from the leadership of both services. Very interesting. If I might be permitted an observation, I understand SSRN's rationale for taking search engine results to abstracts rather than papers, but it does seem to me that full-text searching of papers (and not just abstracts) is crucial. Blogging from Cambodia? Hopefully, Legal Theory Blog will continue the next few days from Siem Reap--the jumping off point for Angkor Wat and a variety of less famous archeological sites in Cambodia. If not, the blog will resume as soon as possible. Thanks for your understanding. Thursday Calendar
Oxford Comparative Law Discussion Group: Ruth Sefton-Green, French and English Legal Scholarship: Swings and Roundabouts Oxford Public International Law Discussion Group: Dr Susan Marks, State-Centrism, International Law and the Anxieties of Influence Fordham Law: Yochai Benkler, Professor of Law, Yale Law School University College London Jurisprudence Meeting: Thomas Ricard, "The Illusion of Neutrality" David Prendergast, "How Law Legitimates Itself" Adler on Constitutional Fidelity & the Rule of Recognition Matthew Adler (Penn) has posted Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism on SSRN. Here is the abstract:
Serkin on Local Governments and the Takings Clause Christopher Serkin (Brooklyn) has posted Big Differences for Small Governments: Local Governments and the Takings Clause on SSRN. Here is the abstract:
Sandefur on Kelo Timothy Sandefur (Pacific Legal Foundation) has posted Mine & Thine Distinct: What Kelo Says About Our Path on SSRN. Here is the abstract:
Hasen on Voting Rights Act Renewal Check out The Coming Battle (in Congress or the Supreme Court) Over Renewal of the Expiring Provisions of the Voting Rights Act by Rick Hasen. Here's a taste:
Wednesday, May 03, 2006
Hershovitz on Two Models of Torts (and Takings)--Updated with Link Fixed Scott Hershovitz (University of Michigan law) has posted Two Models of Torts (and Takings) on SSRN. Here is the abstract:
This brings me round to a more general question. Tort law prices the imposition of certain harms, whereas property law creates entitlements enforceable by injunction. The model of costs--or more generally, normative law and economics--is generally willing to create property rights to enable those who create positive externalities to capture benefits, if it can be shown that the incentives are optimal (or more loosely, necessary to provide incentives to create the external benefit). So one way of approaching Hershovitz's problem is to ask, "Why not property?" That is, if there is a case for incentivizing the creation of the external benefit, why not create a property right? The answer to this question may shed some light on the further question: if a property right is not optimal, why not a tort remedy? I really liked this article, is is highly recommended! YLJ's Pocket Part The Yale Law Journal's Pocket Part has an essay John Cornyn, Immigration Reform: Back to the Future with responses by Alvaro Bedoya and Annie Decker. The YLJ is doing us all a service by attempting to integrate the traditional law review with online publication. Take a look! Wednesday Calendar
Oxford Criminology Seminar Series 2005/06: David Green, The Politics of Tradegy: Comparing Responses to Child-on-Child Homicide Organised by: Oxford Law Faculty: Kai Moller, Seminar Series on Robert Alexy's " A Theory of Constitutional Rights": Introduction Call for Papers: What's Ahead on Highway 101 at George Washington
Tuesday, May 02, 2006
Tuesday Calendar
Rappaport & McGinnis on the Judicial Filibuster John McGinnis & Michael Rappaport have posted The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty on SSRN. Here is the abstract:
Belle Lettre on the Impossible Dream If you are interested in, but do not yet have, a career in the legal academy you may enjoy The Impossible Dream by the literate and always interesting Belle. Call for Papers: American Politics Research, Special Issue on Courts and Judicial Process
Monday, May 01, 2006
Muller on Blogging Eric Muller has a very good post entitled The Puzzling Case of "Mixed" Lawprof Blogs. I think I agree with almost everything Eric says. Here's a bit from his post:
Welcome to the Blogosphere . . . . . . to Pushpin Pundit by Mark Stein. Interesting stuff, including this:
Monday Calendar
University of Texas Law: James Spriggs (UC Davis) "Courting the Public: Judicial Behavior and Public Views of Court Decisions" Book Announcement: Justification by Boltanski and Thévenot
Conference Announcement: John Stuart Mill at Samobor
The Society for the Advancement of Philosophy and the Department of Philosophy of Studia Croatica at the University of Zagreb is organizing an international symposium John Stuart Mill and his Philosophical Legacy on the occasion of 200th Birth Anniversary of J. S. Mill. The symposium is intended to gather philosophers and other related scholars, mainly from Central Europe, whose papers deal with various aspects of Mill’s philosophical work, primarily his ethics and political philosophy. However, we welcome any paper on Mill’s influence on the later development of philosophy as well as contemorary philosophical debates, not only within the field of ethics and political philosophy, but also in other philosophical disciplines such as epistemology, logics and others. The symposium is to be held from 8th-10th, May 2006, in Samobor, a pictoresque town of great historical tradition, situated 20 kilometers from Zagreb, the capital city of Croatia. The official language is English. |