Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Friday, June 30, 2006
Welcome to the Blogosphere . . . . . . to the Georgetown University Faculty Blog. Check out the live blogging by Rebecca Tushnet of a panel on Hamdan! And this post by Mark Tushnet on Hamdan. Balkin on Hamdan Check out Jack Balkin on Hamdan: Hamdan and the NSA dispute. Here's a taste:
Weisbach on Tax Expenditures David A. Weisbach (University of Chicago Law School) has posted Tax Expenditures, Principal Agent Problems, and Redundancy on SSRN. Here is the abstract:
Yale & Polsky on Reformng Deferred Compensation Taxation Ethan Yale and Gregg D. Polsky (Georgetown University Law Center and University of Minnesota Law School) have posted Reforming the Taxation of Deferred Compensation (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
Maclin on DNA & the Fourth Amendment Tracey Maclin (Boston University - School of Law) has posted Is Obtaining an Arrestee's DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do? (Journal of Law, Medicine & Ethics, Vol. 33, No. 1, Summer 2006) on SSRN. Here is the abstract:
Austin on Civil Unions Graeme W. Austin (University of Arizona - James E. Rogers College of Law) has posted Essay: Family Law and Civil Union Partnerships - Status, Contract and Access to Symbols (Victoria University Wellington Law Review, Vol. 37, 2006) on SSRN. Here is the abstract:
Thursday, June 29, 2006
Hamdan In a 5-3 decision (with Roberts not participating), the Supreme Court has ruled that the President lacked authority to establish military tribunals at Guantanmo Bay and that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. The opinions are here. Lyle Denniston has a good post on Scotus Blog. The New York Times has the AP story here. Also at Scotus Blog, Marty Lederman has a post entitled Hamdan Summary -- And HUGE News. Here's a brief excerpt from Lederman's post:
Here is the syllabus:
Wednesday, June 28, 2006
Call for Papers: Multiculturalism and Moral Conflict at Durham
Call for Papers: Utilitiarism: An Ethics of Experience at the University of Rome
Conference Announcement: Social Sciences & Democracy at Ghent
Tuesday, June 27, 2006
Welcome to the Blogosphere . . . . . . to PLF on Eminent Domain, the Pacific Legal Foundation's blog on eminent domain. Pardo on Neuroscience Evidence Michael S. Pardo (University of Alabama School of Law) has posted Neuroscience Evidence, Legal Culture, and Criminal Procedure on SSRN. Here is the abstract:
Schkade, Sunstein, and Hastie on Deliberation and Polarization David Schkade , Cass R. Sunstein and Reid Hastie (University of Texas at Austin - Department of Management Science & Information Systems , University of Chicago - Law School and University of Chicago - Graduate School of Business) have posted What Happened on Deliberation Day? on SSRN. Here's the abstract:
Gersen on Temporary Legislation Jacob E. Gersen (University of Chicago - Law School) has posted Temporary Legislation (University of Chicago Law Review, 2006) on SSRN. Here is the abstract:
Cox on Redistricting Institutions Adam B. Cox (University of Chicago - Law School) has posted Designing Redistricting Institutions on SSRN. Here is the abstract:
Monday, June 26, 2006
Conkle on Fundamentalism Daniel O. Conkle (Indiana University School of Law-Bloomington) has posted Secular Fundamentalism, Religious Fundamentalism, and the Search for Truth in Contemporary America (Journal of Law and Religion, Vol. 12, p. 337, 1995-96) on SSRN. Here is the abstract:
Estlund on Arbitration Agreements & Non-Compete Covenants Cynthia L. Estlund (New York University - School of Law) has posted Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law on SSRN. Here is the abstract:
Corn on Kosovo & the War Powers Resolution Geoffrey S. Corn (South Texas College of Law) has posted Kosovo, and the Final Destruction of the War Powers Resolution (William & Mary Law Review, Vol. 42, p. 1149, 2001) on SSRN. Here is the abstract:
Cunningham on Common Law as an Interative Process Lawrence A. Cunningham (Boston College Law School) has posted The Common Law as an Iterative Process: A Preliminary Inquiry (Notre Dame Law Review, Vol. 81, No. 3, pp. 747-782, 2006) on SSRN. Here is the abstract:
Sunday, June 25, 2006
Legal Theory Calendar
Legal Theory Lexicon: The Attitudinal Model & the New Institutionalism
As always, this entry in the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. Many of you were political science majors, and this may be “old hat” to you, but others will be exposed to these ideas for the first time. A word of warning: the dominant response of the legal academy to the study of law by political scientists is ignorance. It may seems strange, but it is nonetheless true that many law professors have barely heard of the attitudinal model and would have to guess what the “new institutionalism” might be. Don’t make this mistake. Political scientists bring a rich set of tools and concepts to legal theory, and the legal academy has much to learn from them. One more thing: this entry discusses only a small portion of the political science that is relevant to the study of law. Political science includes many different approaches—including rational choice and game theoretic approaches that have much in common with what is called “law and economics” in the legal academy. The Legal Model and the Attitudinal Model Suppose you were a political scientist and you wanted to explain and predict the behavior of a court—for example, the United States Supreme Court. What variables would serve as the best predictors? One possibility is that you would seek to predict Supreme Court decisions using legal concepts. For example, you might use the text of the Constitution as the basis for predicting the outcome of constitutional cases or the text of federal statutes to predict the outcome of cases that hinged on questions of statutory interpretation. Let’s call this approach to the explanation and prediction of legal decisions, the “legal model.” Even first-year law students are likely to see that the legal model may not do a very good job of predicting the outcome of appellate cases. Once you study constitutional law, you are likely to learn that decisions of the contemporary Supreme Court are rarely based on a simple application of preexisting legal rules to the facts (as they are presented to the Court given the procedural posture of the case). Instead, contemporary legal education is likely to emphasize the political dimension of the Supreme Court—with liberal, moderate, and conservative Justices lining up in more or less predictable patters, especially with respect to certain politically-charged issues—implied fundamental rights, federalism, and criminal procedure, for example. Within the legal academy, the connection between judicial decisionmaking and politics is associated with American legal realism (and, more recently, with the Critical Legal Studies movement). But in political science, this same insight has been developed in an empirically more rigorous way, and frequently is called “the attitudinal model.” The basic insight of the attitudinal model is that judicial decisions can, in at least some circumstances, be explained and predicted by the attitudes of judges. Thus, a simple attitudinal model might code each justice as occupying a point on a real line from left to right. A judge at the left-most point on the line would be very liberal. A judge on the right-most point of the line would be very conservative. The model might then predict how a judge’s attitudes (or position in attitudinal space) would correlate with positions on particular issues. Conservative judges are likely to vote against a right to abortion; liberal judges may be likely to uphold assertions of national power against challenges on federalism grounds. Which model does a better job of predicting judicial behavior? If we limit our attention to the United States Supreme Court, it looks, at first blush, like the attitudinal model “beats the pants” off the legal model. But appearances may be deceiving. The United States Supreme Court does not hear very many “easy cases”—cases in which the application of preexisting legal rules control the outcome of the dispute. Indeed, the Supreme Court has a discretionary appellate jurisdiction (for the most part), and the Court rarely grants the writ of certiorari in cases in which the law is clear. Instead, the Court tends to focus on those cases in which the law is uncertain, the lower courts are divided, or there is a perceived need for a change in the law. Moreover, cases which are controlled by clear rules of law are usually settled. It is extremely rare for a party to spend the hundreds of thousands of dollars required to litigate a case to the Supreme Court on a sure-fire loser! There is another reason why we would not expect the Supreme Court’s decisions to be predicted by a simple “legal model.” The Court does not consider itself bound by its own prior decisions. Given that the Court has the legal power to depart from precedent, it is hardly surprising that the Court does not behave as if it were so bound. When the legal model is applied to the decisions of lower courts and to the behavior of litigants who settle disputes “in the shadow of the law,” legal rules and doctrines have much more explanatory power. For example, defendants will rarely pay large sums to settle claims that have no legal merit. Of course, this point needs to be qualified in various ways. If a case has sufficient merit to get to a jury, it may have settlement value, even if an “ideal” jury would find against the plaintiff. Similarly, litigation itself is costly, and meritless claims may have “nuisance value” so long as they cannot be thrown out of court at an early stage—by a demurrer or motion to dismiss for failure to state a claim upon which relief can be granted. More broadly, most legal practitioners (lawyers and judges, for example) are likely to think that a very simple attitudinal model is missing something. Even if politics is important and legal doctrine is not the only important factor that shapes legal behavior, any story about legal institutions that leaves the law out of the story seems to be missing something that is crucially important—both to the understanding of the law and to understanding American politics. The New Institutionalism And that brings us to what is sometimes called “the new institutionalism,” a somewhat eclectic movement within political science that seeks to integrate legal doctrine and the distinctive character of legal institutions in political-science approaches to the study of law. When I say “somewhat eclectic,” I mean that there is no single methodology or doctrine that characterizes all of the work that fits under the “new institutionalism” umbrella. And of course, the name of this approach, the new institutionalism, points backwards to an old institutionalism—the approach commonly associated with figures like Corwin and McCloskey (and more recently with Martin Shapiro). One way to look at the work in the “new institutionalist” tradition is to use the distinction between internal and external perspectives that is familiar to legal theorists. From the internal perspective, new institutionalist work is work that takes “the law,” broadly defined to include legal institutions, concepts, categories, and doctrines seriously. But new institutionalist work is not the same as doctrinal legal scholarship. The new institutionalists situate “the law” in political contexts. Where a doctrinalist analysis aims at producing a restatement of a legal rule, institutionalists are more likely to be focused on an elaboration of the development of legal thought in a wider social context. From the external perspective, new institutionalists are interested in the causal influences on and of legal phenomenon. Some new institutionalists embrace the attitudinal model as a starting point for their analysis, whereas others may be more critical of attitudinalism, but any work that looks at law from the external perspective will step outside of legal doctrine and ask questions about the causal influences that shape legal institutions. Conclusion It is hardly surprising that a brief Lexicon entry cannot do justice to a whole body of work. The best way to learn about the attitudinal model and the new institutionalism is to read some work. If I might be permitted to play favorites, I would strongly suggest The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman as a book the exemplifies the important contribution that political science can make to the study of law! Bibliography
Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, North Carolina: Duke University Press, 1993). Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993). Martin Shapiro, Law and Politics in the Supreme Court (New York, Free Press 1964). Howard Gillman, “What Has Law Got to Do With It?” 26 Law & Social Inquiry 465-504 (2001). Rogers Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," 82 American Political Science Review 89-108 (1988). (available on JSTOR, follow this link.) Supreme Court Decision-Making: New Institutionalist Approaches (edited by Howard Gillman & Cornell W. Clayton) (University of Chicago Press, 1999). The Supreme Court in American Politics: New Institutionalist Interpretations (edited by Howard Gillman & Cornell W. Clayton) (University Press of Kansas, 1999). Saturday, June 24, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Yale Law School and the Sixties: Revolt and Reverberations by Laura Kalman. Here's a blurb:
Download of the Week The Download of the Week is Contract Formalism, Scientism, and the M-Word: A Comment on Professor Movsesian's Under-Theorization Thesis by Jeff Lipshaw. Here is the abstract:
Friday, June 23, 2006
Findley & Scott on Tunnell Vision in Criminal Cases Keith A. Findley and Michael Scott (University of Wisconsin Law School and University of Wisconsin Law School) have posted The Multiple Dimensions of Tunnel Vision in Criminal Cases (Wisconsin Law Review, Vol. 2006, No. 2) on SSRN. Here is the abstract:
Leib on Appiah Ethan J Leib has posted Rooted Cosmopolitans on SSRN. Here is the abstract:
Joondeph on O'Connor's Federalism Brad Joondeph (Santa Clara) has posted The Deregulatory Valence of Justice O'Connor's Federalism on SSRN. Here is the abstract:
New Issue of YLJ Online The June 20006 isssue is online! Jamal Greene has Beyond Lawrence: Metaprivacy and Punishment:
Thursday, June 22, 2006
Parry & Hibbard on Sentimental Heroines John T. Parry and Andrea L. Hibbard (Lewis & Clark College - Law School and Lewis & Clark College) have posted Law, Seduction, and the Sentimental Heroine: The Case of Amelia Norman on SSRN. Here is the abstract:
Cho on Doha Sungjoon Cho (Chicago Kent College of Law) has posted Doha's Development (Berkeley Journal of International Law, Vol. 25 No. 2, 2006, Forthcoming) on SSRN. Here is the abstract:
Conference Announcement: Ethical Naturalism at Durham
Wednesday, June 21, 2006
Lipshaw on Contract Theory Jeff Lipshaw (Tulane) has posted Contract Formalism, Scientism, and the M-Word: A Comment on Professor Movsesian's Under-Theorization Thesis on SSRN. Here is the abstract:
New Legal Realism Check out the website for this project-sponsored in part by the American Bar Foundation. Here's a bit from the page:
Kochan on Statutory Limitations on Presidential Nominations Donald Kochan (Chapman University - School of Law) has posted The Unconstitutionality of Class-Based Statutory Limitations on Presidential Nominations: Can a Man Head the Women's Bureau at the Department of Labor? on SSRN. Here is the abstract:
Tuesday, June 20, 2006
Tuesday Calendar
University of Arizona Law: Kirsten Engel, "Who's Afraid of Overlapping Federal and State Jurisdiction?: Harnessing the Benefits of Competitive Vertical Federalism" Stec on Homelessness & Personhood Justin Stec's WHY THE HOMELESS ARE DENIED PERSONHOOD UNDER THE LAW: TOWARD CONTEXTUALIZING THE REASONABLENESS STANDARD IN SEARCH AND SEIZURE JURISPRUDENCE has been posted on the web. Here's the abstract:
Monday, June 19, 2006
Hazlett & Munoz on Spectrum Allocation Thomas W. Hazlett and Roberto E. Munoz (George Mason University and Universidad Tecnica Federico Santa Maria) have posted A Welfare Analysis of Spectrum Allocation Policies on SSRN. Here is the abstract:
Ahdieh on SOX Robert B. Ahdieh (Emory University School of Law) has posted From 'Federalization' to 'Mixed Governance' in Corporate Law: A Defense of Sarbanes-Oxley (Buffalo Law Review, Vol. 53, p. 721, 2005) on SSRN. Here is the abstract:
Eastman on Bush v. Gore John C. Eastman (Chapman University School of Law) has posted Politics and the Court: Did the Supreme Court Really Move Left Because of Embarrassment Over Bush v. Gore? (Georgetown Law Journal, 2006 Forthcoming) on SSRN. Here is the abstract:
Call for Papers: Conference on "Heresy, Blasphemy, and Freedom of Expression" at Central Florida
Sunday, June 18, 2006
Legal Theory Calendar
University of Arizona Law: Kirsten Engel, "Who's Afraid of Overlapping Federal and State Jurisdiction?: Harnessing the Benefits of Competitive Vertical Federalism"
Legal Theory Lexicon: Legal Theory, Jurisprudence, and the Philosophy of Law
As always, this entry in the Legal Theory Lexicon series is aimed at law students, especially first-year law students with an interest in legal theory. Who Cares About Terminology Why should we care about terminology? Who cares what goes under the label “jurisprudence” or “philosophy of law” or “legal theory”? Well, of course, there is a sense in which we shouldn’t care at all. What matters in a deep way is the substance of theorizing about law. On the other hand, these labels are important for a different reason—because their use tells us something about the sociology of the academy. When people argue about what “jurisprudence” really is, the terminological dispute may reflect a conflict over “turf” and “authority.” Disciplinary Lines and Theorizing About Law Very broadly speaking, the turf of high-level legal theory is disputed by at least four groups. First and (still) foremost are the academic lawyers, those whose graduate-level training is exclusively (or almost exclusively) in law as it is taught in the legal academy. Second, there are the economists—some of whom are primarily (or exclusively) trained in economics; while others legal economists were trained primarily by law professors. Third, there is the “law and society” movement—broadly defined as the study of law from a social science (but noneconomic) perspective. Law-and-society theorists may have been trained in political science or sociology or criminology, but many may have been trained in the legal academy as well. Fourth, there is the law-and-philosophy movement, with “analytic legal philosophy” as the focal point of a variety of philosophical approaches. Many philosophers of law have formal philosophical training, but some were trained in law or political theory. So, what about the turf wars? Those who use the phrase “philosophy of law” tend to be philosophers, while the term “jurisprudence” is more strongly associated with the legal tradition of theorizing about the law, but there is frequently a blurring of the these two terms. From the 1960s on, a single figure had a dominant influence in defining the content of “philosophy of law” courses in philosophy departments and “jurisprudence” courses in the law schools—that figure was H.L.A. Hart. Of course, there were many, many exceptions, but for quite a long time the standard course in both disciplines included as a central, organizing component, an examination of Hart’s ideas, either The Concept of Law, Hart’s great book, or the Hart-Fuller debate in the Harvard Law Review. When I was a student in the 70s and early 80s, I thought that “jurisprudence” and “philosophy of law” were synonymous—and that both were references to analytic philosophy of law in the tradition of Hart and included figures like Dworkin and Raz. One consequence of the “philosophicalization” of jurisprudence was the move to fold moral and political philosophy into jurisprudence. I have a very clear memory of browsing the law shelves of the textbook section of the UCLA bookstore in the late 70s, and discovery John Rawls’s A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia as the texts for the jurisprudence course. I have always assumed that similar courses were offered elsewhere, although I could be wrong about that. Philosophy is important as a matter of the sociology of the legal academy, but it is not the only important interdisciplinary influence: economics, political science, and sociology, each of these also has a major influence. Given that the “jurisprudence” course was “captured” by philosophers, how could these other approaches to legal theorizing express their theoretical framework in the law school curriculum. One mode of expression was the alternative theory course—“Law and Economics” and “Law and Society” were the two leading competitors of “Jurisprudence.” Moreover, the tradition of distinctively legal thinking about high legal theory has never died out. American Legal Realism was largely the product of the law schools—although many other disciplines figured in the realist movement. Likewise, Critical Legal Studies was largely a phenomenon of the legal academy. Some jurisprudence or legal theory courses incorporate philosophy of law, law and economics, and law and society into a course that is taught from a distinctively legal point of view. What can we say about our three terms—jurisprudence, philosophy of law, and legal theory? Jurisprudence My sense is that most Anglo-American legal academics view “jurisprudence” as mostly synonymous with “philosophy of law”. This is not a unanimous view. There is still a lingering sense of “jurisprudence” that encompasses high legal theory of a nonphilosophical sort—the elucidation of legal concepts and normative theory from within the discipline of law. Moreover, in other legal cultures, for example, in Europe and Latin America, my sense is that the move to identify jurisprudence with philosophy of law never really took root. Philosophy of Law The meaning of the phrase “philosophy of law” is inevitably tied up in the relationship between the two academic disciplines—philosophy and law. In the United States and the rest of the Anglophone world, “philosophy of law” is a subdiscipline of philosophy, a special branch of what is nowadays frequently called “normative theory.” Of course, there are many different tendencies within academic philosophy generally and the philosophy of law in particular. Still, the dominant approach to philosophy of law in the Anglophone world is represented by “analytic legal philosophy,” which might be defined by the Hart-Dworkin-Raz tradition on the one hand and by the larger Austin-Wittgenstein-Quine-Donaldson-Kripke tradition on the other. Coexisting with the analytic tradition in the philosophy of law are many other philosophical approaches. These include Hegelianism, neo-Thomism, Marxism, as well as the contemporary continental philosophical tradition, ranging from Habermas (with close affinities to the analytic tradition) to Foucault and Derrida (with much more tenuous links). The philosophy of law covers a lot of ground. An important line of development focuses on the “what is law?” question, but much contemporary legal philosophy is focused on normative questions in specific doctrinal fields. The application of moral and political philosophy to questions in tort and criminal law is an example of this branch of contemporary legal philosophy. Legal Theory Legal theory is a much broader and encompassing term, encompassing the philosophy of law and jurisprudence as well as theorizing from a variety of other perspectives, including law and economics and the law and society movement. In my opinion, “legal theory” is currently the best neutral term for referring to legal theorizing, broadly understood. It allows us to avoid the turf wars and sectarian disputes that make the word “jurisprudence” somewhat problematic. Conclusion When you start theorizing about law, you are likely to adopt some term or phrase to describe your activity. “I’m doing jurisprudence,” or “I’m a philosopher of law.” I hope that this entry in the Legal Theory Lexicon will help you use these labels with some awareness of their history and the controversies that surround their use. Saturday, June 17, 2006
Saturday Calendar
Legal Theory Bookworm The Legal Theory Bookworm this week offers suggestions for introductory works in political philosphy:
Download of the Week The Download of the Week is Critical Constitutionalism Now by Louis Michael (Mike) Seidman. Here is the abstract:
Friday, June 16, 2006
Friday Calendar
Heller on the Rome Statute and National Due Process Kevin Jon Heller (University of Auckland Faculty of Law) has posted The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process on SSRN. Here is the abstract:
Trubek & Trubek on New Governance David M. Trubek and Louise G. Trubek (University of Wisconsin Law School and University of Wisconsin at Madison Law School) have posted New Governance and Legal Regulation: Complementarity, Rivalry or Transformation on SSRN. Here is the abstract:
Eastman on Commerce Clause Challenges to Environmental Laws John C. Eastman (Chapman University School of Law) has posted A Fistful of Denial: The Supreme Court Takes a Pass on Commerce Clause Challenges to Environmental Laws (Cato Supreme Court Review, p. 469, September 2004) on SSRN. Here is the abstract:
Fisher & Harding on the Precautionary Principle & Administrative Constitutionaloism Elizabeth C. Fisher and Ronnie Harding (Oxford Faculty of Law - Oxford University and Institute of Environmental Studies) have posted The Precautionary Principle and Administrative Constitutionalism: The Development of Frameworks for Applying the Precautionary Principle (IMPLEMENTING THE PRECAUTIONARY PRINCIPLE: PERSPECITIVES AND PROSPECTS, pp. 113-136, E. Fisher, J. Jones & R. von Schomberg, eds., Edward Elgar, 2006) on SSRN. Here is the abstract:
Ross on Comparative Covert Surveillance Jacqueline E. Ross (University of Illinois College of Law) has posted The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany on SSRN. Here's the abstract:
Thursday, June 15, 2006
Seidman on Reflexive Critical Constitutionalism Louis Michael Seidman (Georgetown University Law Center) has posted Critical Constitutionalism Now (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
Denno on Lethal Injection Deborah W. Denno (Fordham University School of Law) has posted Death Bed (TriQuarterly Journal, Vol. 124, pp. 141-68, 2006) on SSRN. Here is the abstract:
Two by Chen on Biodiversity Jim Chen (University of Minnesota Law School) has posted Across the Apocalypse on Horseback: Biodiversity Loss and the Law (BIODIVERSITY, BIOTECHNOLOGY AND TRADITIONAL KNOWLEDGE PROTECTION: LAW, SCIENCE AND PRACTICE, Charles R. McManis, ed., Earthscan/James & James, 2006) on SSRN. Here is the abstract:
Thursday Calendar
Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Professor Jeffrey Jowell, ‘The Demise of Parliamentary Sovereignty’ University of Arizona Law: Darian Ibrahim, Assessing Director Liability After Disney: On an Individual Director or Whole Board Basis? Florida State Law: Erik Knutsen, Queen's University/FSU College of Law (visiting professor) Wednesday, June 14, 2006
Penney on an Economic Approach to Reasonable Expectations of Privacy Steven Penney (University of New Brunswick - Faculty of Law) has posted Reasonable Expectations of Privacy and Novel Search Technologies: An Economic Approach on SSRN. Here is the abstract:
McCluskey on Formal Corporate Power Martha T. McCluskey (University at Buffalo - Law School) has posted The Substantive Politics of Formal Corporate Power (Buffalo Law Review, Vol. 53, p. 1453, 2006) on SSRN. Here's the abstract:
Tuesday, June 13, 2006
Ellickson on the Family Robert C. Ellickson (Yale Law School) has posted Unpacking the Household: Informal Property Rights Around the Hearth (Yale Law Journal, Vol. 116, 2006) on SSRN. Here is the abstract:
Lopez on Kelo & Political Philosophy Alberto Lopez (Salmon P. Chase College of Law) has posted Weighing and Reweighing Eminent Domain's Political Philosophies Post-Kelo (Wake Forest Law Review, Vol. 41, No. 237, 2006) on SSRN. Here's the abstract:
Kochan on Respect & Human Rights Donald J. Kochan (Chapman University - School of Law) has posted Boyakasha, Fist to Fist: Respect and the Philosphical Link with Reciprocity in International Law and Human Rights (George Washington International Law Review, Vol. 38, 2006) on SSRN. Here's the abstract:
Abbott, Gopalan, Marchant, & Sylvester on Nanoregulation Kenneth W. Abbott , Sandeep Gopalan , Gary E. Marchant and Douglas J. Sylvester (Arizona State University - College of Law , Arizona State University - College of Law , Arizona State University College of Law and Arizona State University College of Law) have posted International Regulatory Regimes for Nanotechnology on SSRN. Here's the abstract:
Monday, June 12, 2006
Baude on Liberty & War Patrick L. Baude (Indiana University School of Law-Bloomington) has posted An Essay on the Spirit of Liberty in the Fog of War (Notre Dame Law Review, Vol. 79, p. 1321, 2004) on SSRN. Here is the abstract:
Marwell on the WTO Public Morals Exception Jeremy C. Marwell (New York University School of Law) has posted Trade and Morality: The WTO Public Morals Exception after Gambling (New York University Law Review, Vol. 81, p. 802, 2006) on SSRN. Here is the abstract:
Waldman on Justice in Mediation Ellen A. Waldman (Thomas Jefferson School of Law) has posted The Concept of Justice in Mediation: A Psychobiography (Cardozo Journal of Conflict Resolution, Vol. 6, p. 247, 2005) on SSRN. Here is the abstract:
Conference Announcement: Law & Philosophy at UCL
Sunday, June 11, 2006
Legal Theory Calendar
Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Professor Jeffrey Jowell, ‘The Demise of Parliamentary Sovereignty’ University of Arizona Law: Darian Ibrahim, Assessing Director Liability After Disney: On an Individual Director or Whole Board Basis? Florida State Law: Erik Knutsen, Queen's University/FSU College of Law (visiting professor)
Legal Theory Lexicon: Formalism and Instrumentalism
In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize gay sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text is not much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state. But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation. In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory. Legal Formalism What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following
We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:
2. Legal rules can be meaningful. 3. Legal rules can be applied to particular facts. 4. Some actions accord with meaningful legal rules; other actions do not. 5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement. Legal Instrumentalism Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking. The Realist Critique of Legal Formalism It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Ideology does the work; legal formalism dresses it up so that it looks pretty. The Modern Revival of Legal Formalism Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be. Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents. Conclusion The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie. Related Entries Saturday, June 10, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends A General Jurisprudence of Law and Society by Brian Tamanaha. Here's a blurb:
Download of the Week The Download of the Week is Chevron as a Voting Rule by Adrian Vermeule and Jacob E Gersen. Here is the abstract:
Friday, June 09, 2006
Thank You and a (temporary) Goodbye to 3L Epiphany Ian Best did some really interesting and important work on the phenomenon of law blogging at his blog 3L Epiphany, including a census and categorization of law blogs and investigations of citations to law blogs in judicial opinions and law review articles. His sign off post is The (Temporary) Final Conclusion of 3L Epiphany. If you are interested in law blogging and its relationship to legal scholarship, Best's blog is, well, the best. Thank you! Horwitz on Religion in Judicial Nominations Paul Horwitz (Southwestern Law) has posted Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations on SSRN. Here is the abstract:
Siegel on Stevens on Equal Protection Andrew M. Siegel (University of South Carolina School of Law) has posted Equal Protection Unmodified: Justice John Paul Stevens and the Case for Unmediated Constitutional Interpretation (Fordham Law Review, Vol. 74, p. 2339, 2006) on SSRN. Here is the abstract:
Blogging on the Disney Compensation Case A variety of reactions to the decision of the Delaware Supreme Court affirming the Chancellor's ruling that exonerated Disney's board from liability on the basis of the board's approval of a $140 million payment to Michael Ovitz at the end of his very short term as Disney's president. Check out Bainbridge, Ribstein, and this roundup by Gordon Smith. Congratulations to Tamanaha Congratulations to Brian Tamanaha, who has been awarded the Mahoney Prize in Legal Theory by the Julius Stone Institute of Jurisprudence of the University of Sydney for his "A General Jurisprudence of Law and Society". You can find the announcement here. Tamanaha's work in the broadly sociological jurisprudential tradition is insightful, learned, and important. This prize is richly deserved. And be sure to check out Tamanaha's new book, On The Rule of Law: History, Politics, Theory. Commons & Anticommons Last Friday and Saturday, I was at a conference organized by Lee Fennell and Tom Ulen on the "Commons and the Anticommons." The conference website is now up--with links to audio and information about the readings and participants. Larry Ribstein has some comments over at Ideoblog. Here's a taste:
Check out Ribstein's post and the conference website! Thursday, June 08, 2006
Kesan & Shah on Software Defaults Jay P. Kesan and Rajiv C. Shah (University of Illinois College of Law and University of Illinois at Chicago - Department of Communication) have posted Establishing Software Defaults: Perspectives from Law, Computer Science and Behavioral Economics on SSRN. Here is the abstract:
Cao on Culture Change Lan Cao (William and Mary Law School) has posted Culture Change on SSRN. Here is the abstract:
Fisher on the WTO, Risk Regulation, and the "Science/Democracy" Dichotomy Elizabeth Fisher (Oxford Faculty of Law - Oxford University) has posted Beyond the Science/Democracy Dichotomy: The World Trade Organisation Sanitary and Phytosanitary Agreement and Administrative Constitutionalism (CONSTITUTIONALISM, MULTI-LEVEL TRADE GOVERNANCE, AND SOCIAL REGULATION, C. Joerges & E-U. Petersmann, eds., Hart Publishing, 2006) on SSRN. Here is the abstract:
Welcome to the blogosphere . . . . . . to International Law, Legal Theory, and More by Maya Steinitz. There's a post up entitled International Criminal Law and the Israeli-Palestinian Conflict -- Part I Check it out. "All Things" US News & World Report Tom Bell has been blogging about his reconstruction of the model for the US News rankings of U.S. Law Schools. Check out Z-Scores in Model of USN&WR's Law School Rankings and Change to U.S. News Law School Rankings Methodology and a variety of other posts. Wednesday, June 07, 2006
Vermeule & Gersen on Chevron Adrian Vermeule and Jacob E Gersen (University of Chicago - Law School and University of Chicago - Law School) have posted Chevron as a Voting Rule (Yale Law Journal, Vol. 116, 2006) on SSRN. Here is the abstract:
Christopher on Blackmail Russell Christopher (University of Tulsa College of Law) has posted Meta-Blackmail (Georgetown Law Journal, Vol. 94, p. 739, 2006) on SSRN. Here is the abstract:
Huffman on Breyer Max Huffman (University of Cincinnati - College of Law) has posted Using All Available Information on SSRN. Here is the abstract:
Kritzer on Theorizing Judicial Craft Herbert M. Kritzer (University of Wisconsin - Madison - Department of Political Science) has posted Toward a Theorization of Craft on SSRN. Here is the abstract:
Book Announcement: Law, Politics, and Morality in Judaism, Edited by Walzer
Book Announcement: Berlin on Political Ideas in the Romantic Age
Book Announcement: Grotius on Prize & Booty
Conference Announcement: Ethical Aspects of Risk
Tuesday, June 06, 2006
Two on Chevron
Araiza on Patel & Ford Motor Co. William D. Araiza (Loyola Law School (Los Angeles)) has posted Limits on Agency Discretion to Choose Between Rulemaking and Adjudication: Reconsidering Patel v. INS and Ford Motor Co. v. FTC on SSRN. Here is the abstract:
Herring on Legal Scholarship & Humility David J. Herring (University of Pittsburgh - School of Law) has posted Legal Scholarship, Humility, and the Scientific Method on SSRN. Here is the abstract:
Kritzer on Insurance Defense Practice Herbert M. Kritzer (University of Wisconsin - Madison - Department of Political Science) has posted The Commodification of Insurance Defense Practice (Vanderbilt Law Review, 2006 Forthcoming) on SSRN. Here is the abstract:
Monday, June 05, 2006
Monday Calendar>
Parmet on the Constitutional Right to Reject Treatment Wendy E. Parmet (Northeastern University - School of Law) has posted Terri and Katrina: A Population-Based Perspective on the Constitutional Right to Reject Treatment on SSRN. Here is the abstract:
So what does the author have to say about these questions. The only discussion of autonomy comes on the last two pages:
There are passages in the article like the following:
Perhaps the article is making some other claim altogether--but what is it? Of course, the author of this paper is not alone in making very strong and controversial assumptions in moral theory without argument and without any discussion of the relevant literature. A variety of legal scholars whose primary orientation is towards the social sciences--econonomics, sociology, or political science (in its rational choice & empirical variants) make similar assumptions. This particular paper, however, is arguing against a position in constitutional theory, but fails to consider the ways that the position might be defended. So it is difficult to view the narrow perspective as simply "working within the paradign." Koch on Judicial Review of Administrative Action Charles Koch (College of William and Mary School of Law) has posted FCC v. WNCN Listeners Guild: An Old Fashioned Remedy for What Ails Current Judicial Review Law on SSRN. Here is the abstract:
Zittrain on Online Gatekeeping Jonathan Zittrain (University of Oxford Faculty of Law) has posted A History of Online Gatekeeping (Harvard Journal of Law and Technology, Vol. 19, No. 2, p. 253, 2006) on SSRN. Here is the abstract:
Eastman on the General Welfare Clause John C. Eastman (Chapman University School of Law) has posted Restoring the General to the General Welfare Clause (Chapman Law Review, Vol. 4, p. 63, 2001) on SSRN. Here is the abstract:
Dudziak on the Legal Language of Law Mary L. Dudziak (University of Southern California Law School) has posted Making Law/Making War in a World on Fire on SSRN. Here is the abstract:
de Londras on Queer Rights & the European Conventions Fiona de Londras (Griffith College) has posted Queer Rights and the European Convention: Understanding the Past and Shaping the Future on SSRN. Here is the abstract:
Sunday, June 04, 2006
Legal Theory Calendar
Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Dr. Alison Young, ‘Sovereignty and the Human Rights Act’ University of Arizona Law: Paul Bennett, Law Schools and Lying: Should we be teaching our students not to lie or to lie better? Florida State Law: Lesley Wexler, Florida State University College of Law Legal Theory Lexicon: Consent
The basic legal structure is easy to grasp. But what is consent? Why does it have the legal and moral force that it does? When is it valid and when is it invalid? This entry in the Legal Theory Lexicon is about the idea of consent in legal contexts involving interpersonal (but not political) relationships. The entry will explore what consent is and why consent is important, both legally and morally. Our investigation will also explore the conditions under which consent might be said to be “invalid,” e.g. in cases where consent was obtained through deception, coercision, or in which the consenting person lacked capacity to give consent. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. The Ontology of Consent What is consent? We all know about paradigm cases of consent and its absence. Consent is clearly present (ceteris paribus) when someone says “I consent” and really means it. Consent is absent when someone says, “I object” and really means it. But the ability to distinguish clear cases of consent and its absence is not sufficinet for a theory of consent. In general, there are two families of theories about the nature of consent. One theory is that consent is a mental state—either an affective state such as desire or a volitional state such as choice. The second theory is that consent is a performative—a speech act in which one person agrees to something by communicating with another person (or persons). Each of these two approaches to consent requires some additional explanation.
Consent as a Volitional Mental State There is another possibility. It might be that consent is not attitude but a decision, choice, or willing. Thus, we might say that Alice consents to Ben’s kiss if Alice had chosen that Ben kiss her. Affective mental states like desires or preferences are not identical to volitional mental states like choosings or decisions. To want something is different than to having chosen to do it. Of course, there may be a close relationship between affective and volitional states. For example, you might believe that when you have an all-things-considered desire to be kissed, then the choice—the choosing to be kissed—follows more or less automatically. These are deep waters that we can elide for the purposes of this bare-boned introduction to the idea of consent. Consent could be a performative--a communicative act in which the speaker communicates permission for or agreement to a course of action. The Moral and Legal Force of Consent Assuming we knew what consent is, we can ask the further question, “What legal and moral effect does consent have and why?
Why Does Consent Have Moral and Legal Force Once we recognize that consent does have some kind of transformative moral and legal force, the next question we might ask is why? There are lots of way to approach the question why consent has moral force. For example, we might approach the question from the perspectives of the major families of moral theories. Let’s give that a whirl.
Utility and Consent Can utilitarians account for the moral force of consent? Of course, for a utilitarian, consent really can’t be said to be “moral magic.” For utilitarians, the bottom line question is whether a particular state of affairs involves greater utility than the alternatives. So, on the surface, it might seem like consent is not, per se, morally relevant. Consent is just a fact; only good and bad consequences are morally significant. But it is more complicated than that. There are many possible forms of utilitarianism, and one dimension of variation concerns the various conceptions of utility. One important form of utilitarianism holds that there utility consists in the satisfaction of preferences. Suppose that one also believed that consent was the mental state of preferring the consented-to action to the alternatives. If no third parties were affected (and assuming that consent was freely given on the basis of adequate information), then the consented-to activity would maximize utility. So for at least some utilitarains, consent would be presumptive evidence that the consented-to action would maximize utility and hence be the morally best action. Virtue and Consent Consent will also be relevant to aretaic (or virtue-based) moral theories. One of the virtues is justice, and humans with this virtue will not violate the rights of others without their consent. Virtue ethics differs from deontological and utilitarian theories in part because virtue ethics denies that there is any decision procedure for ethics. That is, a virtue ethicist is unlikely to believe that consent can work “moral magic,” but instead is likely to believe that the moral salience of consent is contextual—depending on the particular circumstances of the case. Virtue ethics is also likely to ask the question whether the person given the consent is a virtuous agent. Humans without the virtues are likely to give consent when they shouldn’t—when, for examploe, the consented-to action might actually cause unjustified harm to the fortunes or capacities of the consenting agent. In such circumstances, virtue ethics might deny that consent works moral magic. A virtuous agent might regard herself as obligated not to take advantage of consent—despite the fact that the consent was freely given by an agent who meets the legal standard of competence in circumstances without coercion or deception.
Outright fraud—intentionally making false statements about something materially relevant to the decision at hand—is the most obvious form of deception. But deception may involve nondisclosue as well as lying. If Ben fails to disclose to Alice that Ben is married, then Alice’s consent may not be morally transformative—although once again, the law will still treat Alice’s consent as legally valid. Coercion Consent may also be invalid because it is coerced. For example, if Alice consents to Ben’s kiss because Ben has threatened to harm her if she does, then her consent is invalid. And this is true, both morally and legally. Because consent was coerced, Ben should not kiss Alice and if he does, he will have acted tortiously and perhaps criminally as well. One problem with coercion is distinguishing threats from offerss and warnings. Consent is not invalidated because it is induced by an offer or warning, but it will be invalidated if induced by a threat. How do we differentiate threats from offers and warnings. One strategy is to specify a baseline of legal and/or moral entitlement. We call a communication promising an action in exhange for consent a threat, if the action would move the party below the baseline of entitlements. We call a communication promising an action in exchange for consent, if the action would move the consenting party above the baseline of moral and/or legal entitlements. So if Ben promises Alice that he will let her choose the movie in exchange for a kiss, that is an offer. If he promises to force Alice to watch a movie she doesn’t like if she doesn’t consent to a kiss, that is a threat. Warnings are neither offers nor threats. Warnings predict consequences outside the control of the party seeking consent. If Ben predicts to Alice that she will feel silly if she doesn’t consent to a kiss, then he has warned her of a consequence, but he has neither made a threat nor an offer. Incapacity Consent requires capacity. For example, children cannot consent to sexual relations as a matter of law—hence, consent is no defence to a charge of statutory rape. On the other hand, children can consent to lots of things, including rough play such as wrestling. Other examples of incapacity include mental illness, profound developmental disability, or severe intoxication. If Ben consents to Alice’s taking Ben’s new Mini Cooper on a two-week road trip while Ben is completely blotto (and Alice knows this), then his consent may be invalid and hence Ben may be legally entitled to demand that Alice return his car. Saturday, June 03, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends A Theory of Property by Stephen R. Munzer. Here are a few blurbs:
Download of the Week The Download of the Week is The Virtue of Law-Abidance presented on Thursday at the Oxford Jurisprudence Discussion Group by William Edmundson. Here's a taste from introduction of the paper:
Friday, June 02, 2006
Newton on International Criminal Law & the War on Terrorism Michael A. Newton (Vanderbilt University Law School) has posted International Criminal Law Aspects of the War Against Terrorism (U.S. Naval War College International Law Studies, Vol. 79, p. 323, 2003) on SSRN. Here is the abstract:
Fischer on Insufficient Causes David A. Fischer (University of Missouri at Columbia - School of Law) has posted Insufficient Causes on SSRN. Here is the abstract:
Eastman on Free Press & Classified Secrets John C. Eastman (Chapman University School of Law) has posted Does the First Amendment’s Freedom of the Press Clause Place the Institutional Media Above the Law of Classified Secrets? on SSRN. Here is the abstract:
Kartik, Ottaviani, & Squintani on Costly Talk Navin Kartik , Marco Ottaviani and Francesco Squintani (University of California, San Diego , London Business School and University College London) have posted Credulity, Lies, and Costly Talk (Journal of Economic Theory, Forthcoming) on SSRN. Here is the abstract:
Pillsbury on Learning from Journalism Samuel H. Pillsbury (Loyola Law School (Los Angeles)) has posted Learning from Journalism (Ohio State Journal of Criminal Law, Vol. 3, No. 2, 2006) on SSRN. Here is the abstract:
Conference Announcement: World Poverty & the Duty of Assistance
Thursday, June 01, 2006
Squire on Antitrust & Supremacy Richard Squire (Fordham Law School) has posted Antitrust and the Supremacy Clause (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
Steinbock on Designation the Dangerous Daniel J. Steinbock (University of Toledo - College of Law) has posted Designating the Dangerous: From Blacklists to Watch Lists (Seattle University Law Review, Forthcoming) on SSRN. Here is the abstract:
Pozen on Charitable Deductions David Pozen (Yale University - Law School) has posted Remapping the Charitable Deduction (Connecticut Law Review, Vol. 39, Forthcoming) on SSRN. Here is the abstract:
Archinaco on the Law of the Virtual Horse Jason A. Archinaco (White & Williams, LLP) has posted Virtual Worlds, Real Damages: The Odd Case of American Hero, the Greatest Hose that may have Lived on SSRN. Here is the abstract:
Thursday Calendar
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 Call for Papers: 9/11's Impact on the Law
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