Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Wednesday, December 31, 2003
Change of Management For everything there is a season. For reasons that are beyond my control and which I do not have authority to divulge, the management of Legal Theory Blog is changing hands. For details, surf here.
Update: My apologies to those of you who did not follow the link to Ciceronian Review's satirical post suggesting that LTB had been taken over by Dick Cheney. Not really.
Conference Announcement: Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference Yale Law School will be hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference on March 26-28, 2004. Here is the description:
Bainbridge on the SEC Shareholder Access Proposal Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted A Comment on the SEC Shareholder Access Proposal on SSRN. Here is the abstract:
Bibas on Therapeutic Judging Stephanos Bibas (University of Iowa - College of Law) has posted Using Plea Procedures to Combat Denial and Minimization (JUDGING IN A THERAPEUTIC KEY, Bruce J. Winick & David B. Wexler, eds., 2003) on SSRN. Here is the abstract:
Semeraro on Capital Sentencing Steven Semeraro (Thomas Jefferson School of Law) has posted Responsibility in Capital Sentencing (San Diego Law Review, Vol. 39, p. 79, 2002) on SSRN. Here is the abstract:
Cohen and Blavin on Internet Metaphors I. Glenn Cohen and Jonathan H. Blavin (Law Clerk, U.S. Court of Appeals for the First Circuit and Government of the United States of America - 9th Circuit) have posted Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary (Harvard Journal of Law and Technology, Vol. 16, No. 1, p. 265, Fall 2002) on SSRN. Here is the abstract:
Tuesday, December 30, 2003
Internet Law in Review Doug Isenberg's Internet Law Year in Review 2003 is available on Gigalaw.
More on Public Reason and Faith-Based Prisons My post from yesterday, Public Reasons and Faith-Based Prisons, has prompted a variety of reactions. The distinguished law and religion scholar, Steve Smith, emailed comments which I've appended at the end of my original post. Rick Garnett replied to my post over at Punishment Theory. Here is a taste of Rick's post:
Defending the MLA Chun the Unavoidable defends the MLA against familiar criticisms in this post. See also Invisible Adjunct, John & Belle Have A Blog and John Holbo. Here is a taste of Chun's post:
Rorty on Habermas Richard Rorty has a marvelous review of Jurgen Habermas's Truth and Justification on Notre Dame Philosophical Reviews. Here is a taste:
Dana on Existence Value In a world of cost-benefit analysis, how might we account for the value associated with the mere existence of particular natural features (wetlands, forests, etcs.) when that value is not reflected in any form of consumption--other than knowledge that the particular feature exists? David A. Dana (Northwestern University Law School) has posted Existence Value and Federal Preservation Regulation on SSRN. Here is the abstract:
Stout on the New Finance Lynn A. Stout (University of California, Los Angeles - School of Law) has posted The Mechanisms of Market Inefficiency: An Introduction to the New Finance on SSRN. Here is the abstract:
Korobkin on Form Contracts & Bounded Rationality Russell B. Korobkin (University of California, Los Angeles - School of Law) has posted Bounded Rationality, Standard Form Contracts, and Unconscionability (University of Chicago Law Review, Vol. 70, p. 1203, 2003) on SSRN. Here is the abstract:
Monday, December 29, 2003
Public Reasons and Faith-Based Prisons (Update: & Comments by Steve Smith) Over at Punishment Theory, there has been a very interesting exchange on faith-based prisons. (Start here and scroll up.) In this most recent posts, the discussion has turned to the question whether it is appropriate for legislators to support faith-based prisons for religious reasons. Rick Garnett's most recent post takes on this thorny issue:
When thinking about this question, I think it is important to be careful and precise. Some of the distinctions that we ought to observe include the following:
2. To which of the following contexts does your principle apply:
4. In particular, would the following be appropriate uses of nonpublic reasons--only insofar as your ideal of public reason is concerned:
b. The inclusion of the following statement in a judicial opinion, "The legislature explicitly relied on Protestant Christianity as the reason for the passage of this bill. Were Protestantism the true faith, it would supply a rational basis for establishment of prisons that teach that doctrine. But Protestantism is a false doctrine, and therefore this legislation lacks a rational basis."
Update: My colleague, Steve Smith, writes re my questions for Garnett:
Weekend Wrap Up On Saturday, the Download of the Week was Plea Bargaining Outside the Shadow of Trial by Stephanos Bibas, and the Legal Theory Bookworm recommended a collection of essays by Jeremy Waldron. Sunday's Legal Theory Calendar previewed the start of three important conferences, the Annual Meeting of the Association of American Law Schools, the Faculty Division of the Federalist Society, and the American Society for Political and Legal Philosophy. Also on Sunday, the Legal Theory Lexicon entry was on Positive and Normative Legal Theory.
Allen and Mace on the Privilege Against Self-Incrimination The privilege against self-incrimination has long defied attempts at theoretical explanation. So, I was especially intrigued to see that Ronald J. Allen and M. Kristin Mace (Northwestern University Law School and Independent) have posted The Self-Incrimination Clause Explained and Its Future Predicted (Journal of Criminal Law and Criminology, 2003) on SSRN. Allen is, of course, one of our most eminent theorists of the law of evidence. Here is the abstract:
Edmundson on Privacy William A. Edmundson (Georgia State Law School) has posted Privacy (THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY, Martin P. Golding, William A, Edmundson, eds., Oxford: Blackwell Publishing, April 2004) on SSRN. Here is the abstract:
Greenberg on Deconstructing Binary Race & Sex Categories Julie A. Greenberg (Thomas Jefferson School of Law) has posted Deconstructing Binary Race and Sex Categories: A Comparison of the Multiracial and Transgendered Experience (San Diego Law Review, Vol. 39, p. 917, 2002) on SSRN. Here is the abstract:
MacKinnon and Siegel's New Anthology on Sexual Harassment Catharine A. MacKinnon and Reva Siegel (University of Michigan Law School and Yale Law School) have posted Directions in Sexual Harassment Law: Introduction and Afterword (DIRECTIONS IN SEXUAL HARASSMENT LAW, Catharine A. MacKinnon and Reva B. Siegel, eds., Yale Press, 2004) on SSRN. Here is the abstract:
Sunday, December 28, 2003
Legal Theory Lexicon: Positive and Normative Legal Theory
The core idea of the distinction between positive and normative legal theory is simple: positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas normative legal theories tell us what the law ought to be. Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are about facts and normative legal theories are about values.
Positive Legal Theory Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:
Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules.
Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.
Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose. They do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.
Positive Theory as a Constraint on Normative Theory Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory.
Interpretivism and "Law as Integrity" There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post.
For a complete collection of all the Legal Theory Lexicon posts with a table of contents, go here.
Legal Theory Calendar
Friday, January 2
The Annual Meeting of the Association of American Law Schools begins today, with registration only.
Section on Law and Religion: One Nation Under God? Unity, Diversity, and Neutrality Under the Religion Clauses
Joint Program of Sections on Alternative Dispute Resolution and Civil Procedure: Competing or Complementary Rule Systems? Adjudication, Arbitration and the Procedural World of the Future
Section on Socio-Economics: Socio-Economics, Peace and Justice
American Society for Political and Legal Theory continues, with two panels:
Toleration and Recognition, with Ingrid Creppell (George Washington University) delivers a paper entitled "Toleration, Politics and the Common World" and commentary is provided by Glen Newey (University of Strathclyde, Glasgow) and Noah Feldman, New York University, with Jacob Levy, University of Chicago serving as chair.
Saturday, December 27, 2003
Finding Nemo Torts Hypo Here by Wu!
WSIS My general impression has been that WSIS (the UN/ITU sponsored event on the "Information Society") hasn't produced much of value. For the IP Justice take on WSIS, go here.
Ito & Seltzer on Blogging & Privacy Joi Ito posted the following:
More on Faith-Based Prisons Check out these posts by Rick Garnett and Kyron Huigens over at Punishment Theory.
Update: And more from Southern Appeal and Will Baude.
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Jeremy Waldron's Law and Disagreement--a collection of 13 essays by one of the most thoughtful and interesting thinkers in the legal academy. Here is a passage that I particularly liked:
Download of the Week This week, the Download of the Week is Plea Bargaining Outside the Shadow of Trial (Harvard Law Review, June 2004) by Stephanos Bibas (University of Iowa - College of Law). Here is the abstract:
Friday, December 26, 2003
Why Hasn't the MPAA pursued the RIAA's litigation strategy? Check out this post on Furdlog.
Welcome to the Blogosphere . . . to John Perry Barlow's BarlowFriendz.
Buck on the International Criminal Court Here.
Green on Establishment of Religion in Prisons Over at Punishment Theory, Stuart Green has a nice post on establishment of religion in prisons.
Four Michigan Law School Blogs I've been very impressed with Glorfindel of Gondolin, Silent Treatment, Letters of Marque, and Think Inc.. I've been slow in catching up with these law student blogs, so I hope its not too late to say "Welcome to the Blogosphere!"
Birnhack and Rowbottom on Protecting Children from Harmful Material on the Internet Michael Birnhack and Jacob H. Rowbottom (University of Haifa - Faculty of Law and Independent) have posted Shielding Children: The European Way (Chicago-Kent Law Review, Vol. 79) on SSRN. Here is the abstract:
Bibas on Ineffective Assistance of Counsel Stephanos Bibas (University of Iowa - College of Law) has posted The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel (Utah Law Review, March 2004) on SSRN. Here is the abstract:
Conference Reminder: American Society for Political and Legal Philosophy If you will be attending the AALS meeting in Atlanta next week, remember that the American Society for Political and Legal Philosophy holds its meeting on January 2 & 3. Here is the scoop:
Thursday, December 25, 2003
Best Wishes from Legal Theory Blog In this holiday season, I would like to send my very best wishes to all the readers of Legal Theory Blog.
Levy on Deflating Morality Neil Levy has posted Deflating Morality. Here is an excerpt:
Broome's Brown-Blackwell Lectures You can download John Broome's Brown-Blackwell Lectures in three parts: Lecture 1: Rationality; Lecture 2: Theoretical reasoning; and Lecture 3: Practical reasoning. Here is a tiny taste from the marvelous third lecture:
I ought to F
So, I shall F.
But there are many problems over this, and I cannot deal with them today. Instead, I am going to concentrate instrumental reasoning. Moreover, on a very special kind of instrumental reasoning: reasoning from an end to a means that you believe is necessary. This kind of reasoning should bring you to satisfy requirement (4). Of all types of practical reasoning, this type must surely be the easiest to understand. But it’s hard enough, and you will see that I do not feel secure with the account I have of it.
Dinwoodie & Dreyfuss on Preserving the Public Domain of Science Graeme B Dinwoodie (Chicago-Kent College of Law) and Rochelle Cooper Dreyfuss (New York University School of Law) have posted Preserving the Public Domain of Science Under International Law on SSRN. Here is the abstract:
Wednesday, December 24, 2003
Posner on Same Sex Marriage Judge Posner has some typically illuminating thoughts about same-sex marriage here. I particularly like the following passage:
Appell on Randall Kennedy Annette Appell (University of Nevada, Las Vegas - William S. Boyd School of Law) has posted Disposable Mothers, Deployable Children (Review Essay) (Michigan Journal of Race & Law, Vol. 9, 2004) on SSRN. Here is the abstract:
Bayne and Kolers offer a Pluralist Account of Parenthood Tim Bayne and Avery Kolers (Macquarie University - Department of Philosophy and University of Louisville - Philosophy Department) have posted Toward a Pluralist Account of Parenthood (Bioethics, Vol. 17, pp. 221-242, June 2003) on SSRN. Here is the abstract:
Hirsch on Abrogation of State Sovereign Immunity Pursuant to the War Power Jeffrey M. Hirsch (National Labor Relations Board, Appellate Court Branch) has posted Can Congress Use Its War Powers to Protect Military Employees from State Sovereign Immunity? (Seton Hall Law Review, Vol. 34, Spring 2004) on SSRN. Here is the abstract:
Nance & Morris on Jury Understanding of DNA Evidence Dale A. Nance and Scott B. Morris (Case Western Reserve University - School of Law and Illinois Institute of Technology - Institute of Psychology) have posted Jury Understanding of DNA Evidence: An Empirical Assessment of Presentation Formats for Trace Evidence with a Relatively Small Random Match Probability on SSRN. Here is the abstract:
Tuesday, December 23, 2003
Welcome to the Blogosphere . . . to 110 West 3rd (The adventures of Huey, Dewey & Puddles @ New York University School of Law).
Rappaport on Sunstein Over at The Right Coast, Michael Rappaport responds to Cass Sunstein's op/ed in the Washington Post entitled In Court v. Congress, Justices Concede One.
Muller on Padilla & Gherebi Eric Muller has a thoughtful post on Padilla and Gherebi on Is That Legal?. For my money, these two decisions are an unqualified victory for the rule of law.
Choice, Responsibility, and the Iraqi People Read Chris Bertram's four quotations on choice & responsisiblity over at Crooked Timber.
Get Your Hasen Now Election-law superblogger Rick Hasen's new book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003), has almost sold out of its first press run. You can still get a copy of this excellent book from Amazon.com or Barnes & Noble (20% discount). Highly recommended.
Georgakopoulos on Judicial Recalls Nicholas L. Georgakopoulos (Indiana University School of Law - Indianapolis) has posted Judicial Reaction to Change: The California Supreme Court Around the 1986 Elections (Cornell Journal of Law and Public Policy, Forthcoming). Here is the abstract:
Lubben on Railroad Reorganization & Bankruptch Theory Stephen Lubben (Seton Hall University - School of Law) has posted Railroad Receiverships and Modern Bankruptcy Theory on SSRN. Here is the abstract: