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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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, June 30, 2004
Volokh Ranks the Justices on Free Speech Eugene Volokh has a very interesting post entitled Which Justices Have the Broadest (and Narrowest) Views of Free Speech?. Kennedy is broadest; Breyer is narrowist. Reading Eugene's nuanced and intelligent post got me thinking about the assumption, standard in political science, that a unidimensional left-right ideology line captures almost all of the variance among the justices. Is free speech an exception? Any political scientists out there willing to enlighten me? Baude on Thomas & Scalia Split The New Republic Online today has a column by Will Baude (Crescat Sententia) entitled Brothers in Law. Here's a taste:
Hasen on Larios Be sure to check out Rick Hasen's What Does Today's Summary Affirmance in Larios v. Cox mean? over at Election Law Blog. This is the 1 person 1 vote case in which the lower court had struck down a redistricting plan for state legislators on the theory that political gerrmandering was illicit. Here's a taste from Rick's post:
Welcome to the Blogosphere . . . to Hanno Kaiser's Weblog, which covers antitrust, jurisprudence, law & economics, privacy, and free software. Smith on the Nonsectarian Principle Steven Douglas Smith (University of San Diego - School of Law) has posted Nonestablishment Under God? The Nonsectarian Principle on SSRN. Here is the abstract:
Alexander & Schwarzschild on Grutter Larry Alexander and Maimon Schwarzschild (University of San Diego School of Law and University of San Diego School of Law) have posted Grutter or Otherwise: Racial Preferences and Higher Education (Consitutional Commentary, Vol. 21, 2004) on SSRN. Here is the abstract:
Jinks on the Law of War Derek Jinks (Arizona State University College of Law) has posted Protective Parity and the Law of War (Notre Dame Law Review, Vol. 79, 2004) on SSRN. Here is the abstract:
Merges on the Public Domain Robert P. Merges (University of California, Berkeley - School of Law (Boalt Hall)) has posted A New Dynamism in the Public Domain (University of Chicago Law Review, Vol. 7 1, pp.183-203, 2004) on SSRN. Here is the abstract:
Claus on the True Meaning of Separation Laurence Claus (University of San Diego School of Law) has posted Montesquieu's Mistakes and the True Meaning of Separation on SSRN. Here is the abstract:
Book Announcement: Open Architecture as Communications Policy
Leib on Redistricting Ethan J Leib has posted Ugly White Districts on SSRN. Here is the abstract:
Edelman, Nagareda, and Silver on Allocation in Multiple-Claimant Representations Paul H. Edelman , Richard A. Nagareda and Charles Silver (Vanderbilt University School of Law , Vanderbilt University School of Law and University of Texas Law School) have posted The Allocation Problem in Multiple-Claimant Representations on SSRN. Here is the abstract:
Tuesday, June 29, 2004
Ashcroft v. ACLU. Updated 5:11 p.m.
Opinions Blogosphere
--Volokh Conspiracy. Eugene Volokh posts Another Scalia/Thomas Split. --Scotus Blog. Sex, the Internet and congressional frustration.
Aside from the shadow that this warning casts over any new legislation in this field, Congress is almost sure to be deeply offended by the Court’s reaction to a law it thought it was tailoring precisely to fit Supreme Court specifications. The 1998 law was a new attempt to insulate minors from sex on the Internet after the Court in 1997, in Reno v. American Civil Liberties Union, had struck down an earlier version. Supposedly learning from that experience, Congress passed COPA in somewhat narrower form – for example, it lowered the age of youth to be sheltered by law to those below 17, and it limited its ban to sexually explicit offerings on the Web, and only those that are commercial in nature. It adopted a formula to define Web items it regarded as harmful to minors from the Court’s own formulas in prior rulings. Today, none of that helped the congressional cause, at least for now.
A debate has long raged over whether the Internet should be treated as an unrestricted free market of ideas and images or more as a government-controlled information "superhighway" complete with speed limits, tolls, and cyber traffic cops. With this ruling, the nation's highest court has declined to endorse a role for the US government as a cyber traffic cop, at least in this context. --Los Angeles Times. Justices Strike Down Online Porn Law.
Yglesias on Rawls Via Chris Bertram, I came across this post by Matthew Yglesias on John Rawls:
Monday, June 28, 2004
Hamdi, Padilla, & Rasul: Updated on June 29 at 12:04 p.m.
JUSTICE SOUTER, joined by JUSTICE GINSBURG, concluded that Hamdi’s detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportu-nity to offer evidence that he is not an enemy combatant.
2. The Southern District lacks jurisdiction over Padilla’s habeas petition.
Hamdi--joined O’Connor’s plurality opinion. Padilla--authored opinion of the Court.
Hamdi--joined Scalia’s dissenting opinion. Padilla--authored dissenting opinion
Hamdi--authored plurality opinions. Padilla--joined opinion of the Court.
Hamdi--authored dissenting opinion. Padilla--joined opinion of the Court.
Hamdi--joined O’Connor’s plurality opinion. Padilla--joined opinion of the Court.
Hamdi--authored concurring opinion. Padilla--joined Stevens’s dissenting opinion
Hamdi--authored dissenting opinion. Padilla--joined opinion of the Court.
Hamdi--joined Souter concurrence. Padilla--joined Souter dissent.
Hamdi--joined O’Connor’s plurality opinion. Padilla--joined Stevens’s dissenting opinion Blogosphere
Amy Howe posts Jurisdiction in Padilla and Rasul.
--Volokh Conspiracy.
This is because these votes may well change the political dynamics within the conservative and liberal movements. I know there are quite a few conservative lawyers and policy wonks who are uneasy (whether rightly or wrongly) with broad assertions of military powers even during wartime. And I'm pretty sure there are quite a few liberal lawyers and policy wonks who are uneasy (again, whether rightly or wrongly) with what they see as a September 10th attitude towards civil rights during wartime.
But what about Padilla, who is alleged to be an enemy combatant, but who apparently wasn't engaged in an armed conflict against the United States in Afghanistan? Well, four of the Justices in Hamdi -- Justices Souter and Ginsburg, who partially concurred in Hamdi, and Justices Scalia and Stevens, who dissented -- disagree with the view I give above, and think that the Authorization doesn't apply even to Hamdi. It follows that they think it shouldn't apply to Padilla, either.
And More on the detention cases.
The plurality opinion in Hamdi is clearly a pragmatic compromise. Justice O'Connor strains to find Congressional authorization for detaining enemy combatants (Justice Souter's concurrence explains why the argument is strained), so that she can then hold that some process is due-- essentially the right to be heard and present your own evidence to prove your own innocence and the right to rebut assertions from the state. Hamdi also has a right to an attorney on remand, but the plurality stops short of saying that enemy combatants always have a right to an attorney. In dicta, O'Connor states that the Executive may provide due process through military tribunals immediately after a person is captured, or, in a subsequent habeas proceedings in which the burden is on the accused to show that he or she is not an enemy combatant. This is unnecessary to the decision of the case but it's clearly advice to lower courts. The advice is worrisome precisely because it's unnecessary.
It could be a procedural donnybrook below…
--Los Angeles Times.
The court refused to endorse a central claim of the White House since the terrorist attacks of Sept. 11 2001: That the government has authority to seize and detain suspected terrorists or their protectors and indefinitely deny access to courts or lawyers while interrogating them.
Instead, the justices said that the Constitution gives all those held in U.S.-controlled territory a right to plead their innocence before a judge. --BBC. Britons welcome Guantanamo ruling.
Ruling on two separate cases, the country's top court said the U.S. government has the power to hold American citizens and foreign nationals without charges or trial, but that prisoners can use the U.S. courts to challenge their treatment.
Saturday, June 26, 2004
The Final Seven For information on the final seven cases on the Supreme Court's docket, the place to go is On the Docket. The big three terrorism/detention/due-process cases are Rasul, Padilla, and Hamadi. And for more, got to the excellent SCOTUS Blog, especially here and here. Felten on the Future of Filesharing If you have an interest in IP or cyberlaw, you will want to read Ed Felten's post on the future of filesharing. Here is a taste:
Welcome to the Blogosphere . . . to PointofLaw.com, a group blog (or webzine?) sponsored by the Manhattan Institute. Legal Theory Bookworm This week, the Legal Theory Bookworm recommends The Spirit of Liberty by Learned Hand. This book requires no blurb or words of praise. Instead, I should like to simply include a quotation from Hand's A Personal Confession written in 1958:
Download of the Week This week, the Download of the Week is The Unitary Executive in the Modern Era, 1945-2001 by Christopher S. Yoo and Steven G. Calabresi (Vanderbilt University - School of Law and Northwestern University - School of Law). Here is the abstract:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:
Friday, June 25, 2004
Blunkett Watch If you are concerned about the erosion of civil liberties, you will surely want to check out BlunkettWatch, maintained by by John Gardner, who admits to being an airy-fairy civil libertarian and is also the Professor of Jurisprudence at Oxford. Constitutive Commitments Cass Sunstein & Randy Barnett (1. Sunstein, 2. Barnett, 3. Sunstein, 4. Barnett) are engaged in an interesting exchange on Sunstein's idea of "constitutive commitments," something more than mere policies and less than binding constitutional law. This is all in the context of Sunstein's claim that Roosevelt's "Second Bill of Rights":
One of the most interesting questions about constitutive commitments concerns how they come into being and how they change. In this respect, they are clearly quite different from both mere policies (embodied in statutes, orders, and regulations) and constitutional law (found in the written text of the constitution and the decisions of the courts). Laws come into being through more or less well-defined procedures. You can tell when a new statute has been enacted and when a constitution has been amended. "Constitutional commitments" are less definite. Of course, there may be moments when implicit and ill-defined commitments become crystallized and relatively clear: perhaps Roosevelt's speech was such a moment for basic economic rights. Such clarity is likely to be greatest when some great national event or challenge focuses national attention on a particular issue. Surely the Great Depression did focus the nation on the role of government in promoting jobs and prosperity. But as time passes, it seems likely that the crystallization will begin to erode and the content of the commitment will gradually less clear. Thus, assuming their was once a clear consensus on the commitment to (and meaning of) Roosevelt's list of economic rights, it seems likely that much of his program is now in some dispute. The commitment is both less broad and less deep than it once was. I take it, for instance, that the so-called Reagan Revolution (cemented in some sense by Clinton's welfare reform package) involved some erosion and modification of the constitutive commitments that Sunstein finds in Roosevelt's list of economic rights. Read Barnett and Sunstein's fascinating posts. Update: More here from Tim Sandefur. Welcome to the Blogosphere . . . to Sentencing Law and Policy, a new blog authored by Douglas Berman (Ohio State). Technicalities?
Mulhauser's core idea, that the Supreme Court should bend procedcural law, in order to facilitate its role as the final authority on all questions is one of the most pernicious in all of contemporary legal theory. The rule of law is precious and valuable; it cannot be maintained if the nation's highest court views the rules of procedures as mere instruments in the service of a policy agenda. Kreit on Congressional Regulation of Noncommercial Activity Alex Kreit has posted Why is Congress Still Regulating Noncommercial Activity? (Harvard Journal of Law and Public Policy, Vol. 28) on SSRN. Here is the abstract:
This is a very interesting article on a very important topic. Highly recommended! Petit on the Cheney Case C.E. Petit has a very informative post on procedural issues in the Cheney case. Here's a taste:
Yoo & Calabresi on the Unitary Executive Christopher S. Yoo and Steven G. Calabresi (Vanderbilt University - School of Law and Northwestern University - School of Law) have posted The Unitary Executive in the Modern Era, 1945-2001 on SSRN. Here is the abstract:
Klass on Compelled Subsidization Gregory Klass has posted The Very Idea of a First Amendment Right against Compelled Subsidization on SSRN. Here is the abstract:
At & Chappe on Claim Selection by Lawyers Christian At and Nathalie Chappe (University Franche-Comte - CRESE and Université de Franche-Comté) have posted The Lawyer as a Portfolio Manager: How does the Fee System Influence on the Lawyer's Decision of Handling Legal Claim? on SSRN. Here is the abstract:
Bhattacharya and Daouk on No Law Utpal Bhattacharya and Hazem Daouk (Indiana University and Cornell University - Department of Applied Economics and Management) have posted When No Law is Better Than a Good Law on SSRN. Here is the abstract:
Sugin on Rawls & Distributive Justice Linda Sugin (Fordham University School of Law) has posted Theories of Distributive Justice and Limitations on Taxation: What Rawls Demands from Tax Systems (Fordham Law Review, Vol. 72, 2004) on SSRN. Here is the abstract:
Thursday, June 24, 2004
Thursday Calendar
At the American Enterprise Institute, War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century. Speakers include John R. Bolton, Stephen Rademaker, Jeremy Rabkin, and John Yoo. Reasons and Rationality continues today at ANU. Valauri on McCulloch & the Fourteenth Amendment John T. Valauri (Northern Kentucky University - Salmon P. Chase College of Law) has postedMcCulloch and The Fourteenth Amendment (Temple Political & Civil Rights Law Review, 2004) on SSRN. Here is the abstract:
Bellia on Executive Power Patricia L. Bellia (Notre Dame Law School) has posted Executive Power in Youngstown's Shadows (Constitutional Commentary, Vol. 19, No. 1, pp. 87-154, 2002) on SSRN. Here is the abstract:
Norton on the Interesting in the Integrity of Government Expression Helen L. Norton (University of Maryland - School of Law) has posted Not for Attribution: Government's Interest in Protecting the Integrity of it's Own Expression (UC Davis Law Review, Vol. 37, pp. 1217-1350, 2004) on SSRN. Here is the abstract:
Caudill & LaRue on Expert Testimony David S. Caudill and Lewis H. LaRue (Washington and Lee University - School of Law and Washington and Lee University - School of Law) have postedNon-Romantic View of Expert Testimony (Seton Hall Law Review, Vol. 35, No. 1, 2004). Here is the abstract:
Call for Papers: Virtue Epistemology
Call for Papers: Theorizing Disability
Call for Papers: Nations and Nationalism
Call for Papers: On the Good, Goods and the Good Life
Book Announcement: Deliberative Democracy in America
New from Law and Politics Book Review
Book Announcement: The Higher Law: Thoreau on Civil Disobedience and Reform
Wednesday, June 23, 2004
More on Brad Hooker Over at Pea Soup, Douglas Portmore has a post on Brad Hooker and Rule Utilitarianism. Here's a tiny morsel:
Gathii on Rights Upon Conquest and Iraq James Thuo Gathii (Albany Law School) has posted Foreign and Other Economic Rights Upon Conquest and Under Occupation: Iraq in Comparative and Historical Context (University of Pennsylvania Journal of International Economic Law, Vol. 25, No. 2, p. 491, Summer 2004) on SSRN. Here is the abstract:
Wu on the Broadband Debate Tim Wu (University of Virginia School of Law) has posted The Broadband Debate: A User's Guide (Journal of Telecommunications and High Technology Law, Forthcoming) on SSRN. Here is the abstract:
Miller on the Merits in Class Certification Geoffrey P. Miller (New York University School of Law) has posted Review of the Merits in Class Action Certification on SSRN. Here is the abstract:
Palrey, Johnson, & Crawford on Internet Governance John Palrey, David Johnson & Susan Crawford have posted The Accountable Net: Peer Production of Internet Governance on SSRN. Here is the abstract:
Wednesday Calendar
Tuesday, June 22, 2004
Hooker on the Costs of Internalizing a Moral Code Check out Hooker on the Cost of Internalizing a Moral Code, a post by Dan Boisvert on Pea Soup. Here's a spoonful:
Schill New Dean at UCLA Law Eugene Volokh reports that "Michael H. Schill, a law professor at NYU (where he specializes in housing law and policy), has been named dean . . . at UCLA Law School." Jackson v. Posner on the Authority of the Decisions of Foreign Tribunals Check out Richard Posner's No Thanks, We Already Have Our Own Laws and Vicki Jackson's Yes Please, I'd Love to Talk With You. I have a very small idea re this debate. The place to start is with commercial law. Should foreign decision's be cited as nonbinding but authoritative on issues of international commercial law? Once we get clear about that, many of the red-herring issues will drop out. Baude on Hiibel v. Nevada Check out Will Baude's Bad ID on The New Republic Online. Here's the teaser:
Ethical Internalism Check out An Argument for Ethical Internalism on Desert Landscapes. Here is a taste:
Geist on Canadian Internet Politics Check out Michael Geist's piece in the Toronto Star. Here is a taste:
Rappaport on the Incorporation of the Establishment Clause Justice Thomas's opinion in Newdow continues to elicit interesting comments. I recommend Incorporation of the Establishment Clause?, posted by Michael Rappaport on The Right Coast. Here is a taste:
Bellia on Bits and Borders Patricia L. Bellia (Notre Dame Law School) has posted Chasing Bits Across Borders (University of Chicago Legal Forum, pp. 35-101, 2001) on SSRN. Here is the abstract:
Rhodes on General Jurisdiction Charles W. (Rocky) Rhodes IV (South Texas College of Law) has posted Clarifying General Jurisdiction (Seton Hall Law Review, Vol. 34, p. 807, 2004) on SSRN. Here is the abstract:
Carlson on Preemption & Greenhouse Gas Emissions Ann E. Carlson has posted Federalism, Preemption, and Greenhouse Gas Emissions (U.C. Davis Law Review, Vol. 37, No. 281, 2003) on SSRN. Here is the abstract:
Ripstein on Rawls and Corrective Justice Arthur Ripstein (University of Toronto) has posted The Division of Responsibility and the Law of Tort (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
New Reviews on Law and Politics Book Review Three new reviews are up on Law and Politics Book Review:
Monday, June 21, 2004
Lash on Hamilton on Newdow Last week, I posted a brief comment on Mari Hamilton's Findlaw column on Newdow, which included:
2) No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.
2) No state shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases. Ryan on Public Trust and Telecommunications Patrick S. Ryan (Katholieke Universiteit Leuven - ICRI) has posted Application of the Public-Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum (Michigan Telecommunications and Technology Law Review, Vol. 10, No. 2, p. 285, 2004) on SSRN. Here is the abstract:
Myers on Local Redistribution Minor Myers III (Debevoise & Plimpton LLP) has posted A Redistributive Role for Local Government (Urban Lawyer, Vol. 36, No. 4, Fall 2004) on SSRN. Here is the abstract:
Barmes on the Common Law of Employment Contracts Lizzie Barmes (University College London - Faculty of Laws) has posted The Continuing Conceptual Crisis in the Common Law of the Contract of Employment (Modern Law Review, Vol. 67, pp. 435-464, May 2004) on SSRN. Here is the abstract:
Gathii on Extraterroriality & Terrorism James Thuo Gathii (Albany) has posted Torture, Extra-Territoriality, Terrorism and International Law on SSRN. Here is the abstract:
Gagnon, Macklin, & Simons Deconstruct Engagement Georgette Gagnon , Audrey Macklin and Penelope Simons (Independent , Faculty of Law, University of Toronto and University of Toronto - Faculty of Law) have posted Deconstructing Engagement on SSRN. Here is the abstract:
Sunday, June 20, 2004
Legal Theory Calendar
At the American Enterprise Institute, War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century. Speakers include John R. Bolton, Stephen Rademaker, Jeremy Rabkin, and John Yoo. Reasons and Rationality continues today at ANU.
Legal Theory Lexicon: Metaethics
"Metaethics" may should 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, June 19, 2004
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Arguing About War by Michael Walzer. Here is a description of a timely book, by the most the most important thinker on just war theory:
Download of the Week This week, the Download of the Week is Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause by Gary Lawson. Here is the abstract:
New European Constitution A deal has been reached on a new Constitution for the European Union--subject, of course, to ratification. The BBC story is here. More detailed information can be found here. And the draft, before this weekend's modifications, can be found here (pdf). SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:
Friday, June 18, 2004
Vanneste, Van Hiel, Parisi & Depoorter on Commons & Anticommons Sven Vanneste , Alain Van Hiel , Francesco Parisi and Ben Depoorter (Universiteit Gent , Universiteit Gent , George Mason University School of Law and Yale University - Law School) have posted From 'Tragedy' to 'Disaster': Welfare Effects of Commons and Anticommons Dilemmas on SSRN. Here is the abstract:
Vischer on the Ethical Formation of Lawyers Robert K. Vischer (St. John's University School of Law) has posted Catholic Social Thought and the Ethical Formation of Lawyers: A Call for Community (Journal of Catholic Social Thought, Forthcoming) on SSRN. Here is the abstract:
Yoo on Architectural Censorship Christopher S. Yoo (Vanderbilt University - School of Law) has posted Architectural Censorship and the FCC on SSRN. Here is the abstract:
Fox on Relational Contract Theory & Democracy James W. Fox Jr. (Stetson University - College of Law) has posted Relational Contract Theory and Democratic Citizenship (Case Western Reserve Law Review, Vol. 54, No. 1, pp. 1-67, Fall 2003) on SSRN. Here is the abstract:
Harel on Palestinian Return Alon Harel (Hebrew University of Jerusalem - Felt Center for Legal Studies) has posted Whose Home is It? Reflections on the Palestinian Interest in Return (Theoretical Inquiries in Law, Forthcoming) on SSRN. Here is the abstract:
Bradford on Compliance with the Laws of War William C. Bradford (Indiana University School of Law) has posted In the Minds of Men: A Theory of Compliance with the Laws of War on SSRN. Here is the abstract:
Repetti on Taxing Wealth James R. Repetti (Boston College - Law School) has posted Democracy, Taxes, and Wealth (New York University Law Review, Vol. 76, pp. 825-873, June 2001) on SSRN. Here is the abstract:
Bartow on Collective Action by Invenotrs Ann Bartow (University of South Carolina - School of Law) has posted Inventors of the World, Unite! A Call for Collective Action by Employee-inventors (Santa Clara Law Review, Vol. 37, p. 673, 1997) on SSRN. Here is the abstract:
Thiel on Probability Models of Proof Stuart E. Thiel (DePaul University) has posted Probability Models of Juridical Proof: It's Time to Kick Bayes Out on His Posterior on SSRN. Here is the abstract:
Bellia on Sureillance Law Patricia L. Bellia (Notre Dame Law School) has posted Surveillance Law Through Cyberlaw's Lens (George Washington Law Review, Vol. 72, 2004) on SSRN. Here is the abstract:
Henderson on the Judicial Links Doctrine William D. Henderson (Indiana University School of Law - Bloomington) has posted Reconciling the Juridical Links Doctrine with the Federal Rules of Civil Procedure and Article III (University of Chicago Law Review, Vol. 67, p. 1347, 2000) on SSRN. Here is the abstract:
Thursday, June 17, 2004
Hamilton on Thomas's Newdow Opinion In her Findlaw column on Newdow, Marci Hamilton has this to say about Justice Tomas's concurring opinion:
Thursday Calendar
Gordon & Sylvester on Deconstructing Development Ruth E. Gordon and Jon H. Sylvester (Villanova University - School of Law and Golden State University - Law) have posted Deconstructing Development (Wisconsin International Law Journal, Forthcoming) on SSRN. Here is the abstract:
Smith on Nuisance Henry E. Smith (Yale Law School) has posted Exclusion and Property Rules in the Law of Nuisance (Virginia Law Review, Vol. 90, No. 4, 2004) on SSRN. Here is the abstract:
Jinks on POW Status Derek Jinks (Arizona State University College of Law) has posted The Declining Significance of POW Status (Harvard International Law Journal, Vol. 45, 2004) on SSRN. Here is the abstract:
Knoll on the History of Regulatory Arbitrage Michael S. Knoll (University of Pennsylvania - School of Law) has posted The Ancient Roots of Modern Financial Innovation: The Early History of Regulatory Arbitrage on SSRN. Here is the abstract:
Rosen on Exporting the Constitution Mark D. Rosen (Chicago-Kent College of Law) has posted Exporting the Constitution (Emory Law Journal, Vol. 53, p. 171, 2004) on SSRN. Here is the abstract:
Baldwin on Punitive Regulation Robert Baldwin (London School of Economics) has posted The New Punitive Regulation (Modern Law Review, Vol. 67, pp. 351-383, May 2004) on SSRN. Here is the abstract:
Morgan on the Effect of Insurance on Tort Law Jonathan Morgan (University of Cambridge - Faculty of Law) has posted Tort, Insurance and Incoherence (Modern Law Review, Vol. 67, pp. 384-401, May 2004) on SSRN. Here is the abstract:
Tadros & Tierney on the Presumption of Innocence Victor Tadros and Stephen Tierney (University of Edinburgh and University of Edinburgh - Faculty of Law) have posted The Presumption of Innocence and the Human Rights Act (Modern Law Review, Vol. 67, pp. 402-434, May 2004) on SSRN. Here is the abstract:
Nimtz Defends Kripke/Putnam Christian Nimtz has posted Two-Dimensionalism and Natural Kind Terms. Here is a taste:
Heller & Dagan on Conflicts in Property Hanoch Dagan and Michael A. Heller have posted Conflicts in Property on SSRN. Here is the abstract:
Dagan on Restitution Hanoch Dagan has posted Restitution and Slavery on SSRN. Here is the abstract:
Portmore on the Deficiency of Moral Theories Douglas Portmore has posted Why Most Moral Theories are Deficient. Here is a taste:
Wednesday, June 16, 2004
Lawson on Presentment Gary S. Lawson has uploaded Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause (83 Texas L. Rev., forthcoming Spring 2005) to SSRN. Here is the abstract:
Law and Politics Book Review Several new reviews have gone up on the fabulous Law and Politics Book Review:
Conference Announcement: Historical Perspectives on Wrongdoing and Evil
Tuesday, June 15, 2004
Welcome to the Blogosphere . . . to Pea Soup (A blog dedicated to philosophy, ethics, and academia). And also to Desert Landscapes, another philosophy blog. Standing and Legal Formalism Over at De Novo, Nick Morgan asks an interesting question:
Stuart Hampshire The British philosopher Stuart Hampshire had died. Here is an excerpt from the Telegraph obituary:
Tuesday Calendar
At Oxford's Ockam Society, Danie Star (St Anne's)presents Virtue after Virtue Ethics. Newdow Wayne Eastman has a nice post entitled Judicial politics and the Pledge over at Eastmania. Here is a taste:
One justice (Scalia) recused himself from participating in the case based on remarks in a speech in which he opposed Dr. Newdow’s claim. Both the Stevens and Rehnquist opinions used language that implicitly criticized the other side for being inconsistent with its professed beliefs. In upholding the standing objection, the liberal Stevens quoted a 1983 opinion by conservative Robert Bork on the importance of standing considerations. In criticizing the majority’s standing holding, the conservative Rehnquist described the majority as acting in an ad hoc way, “like the proverbial excursion ticket—good for this day only,” using language mirroring liberal criticism of the Court’s conservative opinion in the 2000 Bush v. Gore case. Edelman Makes a Modest Proposal Paul H. Edelman (Vanderbilt University School of Law) has postedLaw Clerks, Law Reviews, and Some Modest Proposals (Green Bag, Forthcoming) on SSRN. Here is the abstract:
Monday, June 14, 2004
Legal Theory Calendar
At Oxford's Ockam Society, Danie Star (St Anne's)presents Virtue after Virtue Ethics.
The Australian and New Zealand Society of International Law meets today through the 20th at the Australian National University in Canberra. Sunday, June 13, 2004
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." 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 serves a reproductive function. 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 a 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. 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, June 12, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends The Second Bill of Rights by Cass Sunstein. Here are two descriptions:
Download of the Week This week the Download of the Week is SCO What? Rhetoric, Law, and the Future of F/OSS Production by David McGowan (University of Minnesota Law School). Here is the abstract:
O'Connor on Statutory Interpretation Gary O'Connor (of the nifty Statutory Construction Zone is the author of Restatement (First) of Statutory Interpretation, which is now available on LEXIS and Westlaw and in PAPER at 7 NYU Journal of Legislation & Public Policy 333. Click on the title for the SSRN version! SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:
Friday, June 11, 2004
Dana on Adequacy of Representation David A. Dana (Northwestern University Law School) has posted 'Adequacy of Representation' in Time (Or Why the Result in Stephenson is Correct) on SSRN. Here is the abstract:
iCon: The Constitution Of the United States on your iPod Get it from the American Constitution Society. Conference Announcement: Israeli Law & Economics Association The Israeli Law & Economics Association meets on Tuesday, June 15. Here is the website. Friday Calendar
Eleventh Circuit Declines Consideration of Challenge to Pryor's Recess Appointment Here is the story on Law.com:
Foley on Election Law Ed Foley (Ohio State) has posted The 'Major Purpose' Test: Distinguishing Between Election-Focused and Issue-Focused Groups (Northern Kentucky Law Review, Vol. 31, 2004)on SSRN. Here is the abstract:
Entry Level Hiring (Update #31, Last Updated on June 11, 66 schools reporting) Well, I find myself unable to resist those who would like to be added to the list, so I am posting another update, adding three entry-level hires to the last official version. Here are some interesting numbers:
 
Adam Chodorow (JD Virginia & LLM NYU) Linda Demaine (JD Arizona & PhD Psychology Arizona State) Aaron Fellmeth (JD Yale) Sandeep Gopalan (JD National Law School of India & DPhil Law Oxford) Orde Kittrie (JD Michigan)
Donald Kochan (JD Cornell) Francine Lipman (JD UC Davis & LLM NYU)
Michael Scodro (JD Yale Law) Carolyn Shapiro (JD Chicago JD)
Bernadette Meyler (JD Stanford & PhD English UC Irvine)
Neil Siegel (JD & PhD Berkeley)
Michael Kang (JD Chicago & PhD Government Harvard) Julie Seaman (JD Harvard)
Heather Lauren Hughes (JD Harvard) Andre L. Smith (JD Howard & LLM Georgetown) Carlton Mark Waterhouse (JD Howard & PhD Social Ethics Emory)
Curtis Bridgeman (JD & PhD Philosophy Vanderbilt) Jonathan Klick (JD & PhD Economics George Mason)
Amanda Tyler (J.D. Harvard)
Ethan Yale (JD Tulane & LLM NYU)
Lauren Willis (JD Stanford)
Stephanie M. Stern ( JD Yale)
Scott A. Moss (J.D. Harvard)
Noga Morag-Levine (LL.B. Hebrew; Ph.D. Jurisprudence and Social Policy, UC Berkeley)
David Stras (JD & MBA Kansas)
Jide Nzelibe (JD Yale)
John Oberdiek (JD & PhD Philosophy Penn)
Frank Pasquale (JD Yale & MPhil Oxford Politics)
Nicole Porter (JD Michigan)
Terry Turnipseed (JD & LLM Georgetown)
David Hoffman (JD Harvard) Duncan Hollis (JD Boston College)
Aric Short (JD Texas)
Jennifer Chacon (JD Yale) Carlton Larson (JD Yale) Donna Shestowsky (JD Stanford & PhD Psychology Stanford)
Noah Zatz (JD Yale)
Adam Samaha (JD Harvard)
Clare Huntington (JD Columbia)
Erica Hashimoto (J.D. Georgetown)
David Law (JD Harvard & PhD Political Science Stanford) Lisa Ramsey (JD UCLA)
Josh Eagle (JD Georgetown) Joel Samuels (JD Michigan)
Melissa Waters (JD Yale)
Michael Dimino (J.D. Harvard)
Nancy Combs (JD Berkeley) Erin Ryan (JD Harvard)
John Radsan (JD Harvard) And JD students are also hired in other disciplines. For example, Wharton Legal Studies reports that they have hired Kevin Werbach (JD Harvard). Note: This list is for entry-level hires only. I have arbitrarily grouped first degrees in law as JDs, even though many non-US law schools award the LLB as the first law degree. Several readers have asked that I collect data on subject-matter areas, but my judgment is that this data is both too soft to be reliable and too difficult to collect. My thanks to everyone who has contributed information! Thursday, June 10, 2004
Impact Rankings for Law Reviews The Library at Washington & Lee's School of Law maintains a very interesting web page which provides rankings for law reviews based on citations. The cite now has an impact ranking, that ranks journals by cites per article (as opposed to the total number of cites for the journal). Here is the top twenty ranked by impact:
2__Columbia Law Review___________________11.39 2__Yale Law Journal______________________11.39 4__Stanford Law Review___________________10.85 5__Cornell Law Review____________________10.55 6__Harvard Law Review____________________10.49 7__Northwestern University Law Review_____9.99 8__California Law Review__________________9.84 9__New York University Law Review_________9.74 10_Virginia Law Review____________________9.65 11_Georgetown Law Journal_________________9.63 12_University of Pennsylvania Law Review__9.43 13_UCLA Law Review________________________9.20 14_Harvard C.R.-C.L. Law Review___________9.12 15_University of Chicago Law Review_______8.62 16_Minnesota Law Review___________________8.59 17_Duke Law Journal_______________________8.43 18_Vanderbilt Law Review__________________7.69 19_Texas Law Review_______________________7.53 20_Southern California Law Review_________6.98 Thursday Calendar
Camera on the Costs of Sovereignty K. A. D. Camara (Harvard University - Harvard Law School) has posted Costs of Sovereignty on SSRN. Here is the abstract:
Hunt on Bribery Jennifer Hunt (McGill University - Department of Economics} has posted Trust and Bribery: The Role of the Quid Pro Quo and the Link with Crime on SSRN. Here is the abstract:
Book Announcement: Politics & Vision by Sheldon Wolin
Wednesday, June 09, 2004
Priester on Structuring Sentencing Benjamin J. Priester (Florida State University - College of Law) has posted Structuring Sentencing: Apprendi, The Offense of Conviction, and the Limitied Role of Constitutional Law on SSRN. Here is the abstract:
Berkowitz & Wittes on the Election Decision Peter Berkowitz and Benjamin Wittes (George Mason University - School of Law and Washington Post) have posted The Lawfulness of the Election Decision: A Reply to Professor Tribe (Villanova Law Review, Vol. 49, No. 3, 2004) on SSRN. Here is the abstract:
Bartow on IP & Domestic Relations Ann Bartow (University of South Carolina - School of Law) has posted Intellectual Property and Domestic Relations: Issues to Consider When There Is an Artist, Author, Inventor, or Celebrity in the House (Family Law Quarterly, Vol. 35, p. 383, Fall 2001) on SSRN. Here is the abstract:
Levinson on Empire Building Daryl J. Levinson (New York University - School of Law) has posted Empire-Building Government in Constitutional Law (Harvard Law Review, Vol. 118, 2004) on SSRN. Here is the abstract:
New on Law & Politics Book Review The following reviews are just up on Law and Politics Book Review:
Boyd, David R. Unnatural Law: Rethinking Canadian Enviornmental Law and Policy. Reviewed by Roy B. Flemming. Jonakait, Randolph N. The American Jury System. Reviewed by Brian Pinaire. Pride, Richard A. The Political use of Racial Narratives: School Desegregation in Mobile, Alabama. Reviewed by Keith J. Bybee. Katz, Sanford N. Family Law in America. Reviewed by Patricia McGee Crotty. Buntman, Fran Lisa. Robben Island and Prisoner Resistance to Apartheid. Reviewed by James L. Gibson. Tuesday, June 08, 2004
Tuesday Calendar
McGowan on Open Source David McGowan (University of Minnesota Law School) has posted SCO What? Rhetoric, Law, and the Future of F/OSS Production. Here is the abstract:
Brown on Consequentialism Campbell Brown has uploaded Consequentialise This Traditionally, moral theories have been divided into two broad camps: on the one hand, there are consequentialist theories, such as utilitarianism; and, on the other, there are nonconsequentialist theories, such as Kantianism. More recently, though, this distinction has come under threat. A growing current of thought has it that every moral theory may fairly be regarded as a form of consequentialism . If this is correct, then consequentialism appears quite empty; it has no substantive content. If every moral theory is just another form consequentialism, then consequentialism in no way constrains our judgements of right and wrong. In this paper I argue for the unorthodox position: consequentialism is indeed empty. More specifically, I outline a broad consequentialist framework, dubbed Generalised Consequentialism , which may accommodate every conceivable view on the rightness of actions. Moreover, I show that the framework provides a natural way in which to accommodate views that, on their face, appear incompatible with consequentialism. The key here is that the framework allows various kinds of relative goodness. Hirose Defends Telic Egalitarianism Iwao Hirose has uploaded On levelling down: in defence of Telic Egalitarianism. Here is a taste:
Harcourt on Collective Responsibility and Unconstitutional Searches Bernard E. Harcourt has posted Unconstitutional Police Searches and Collective Responsibility on SSRN. Here is the abstract:
Rosen on Tailoring Constitutional Principles Mark D. Rosen has posted The Surprisingly Strong Case for Tailoring Constitutional Principles on SSRN. Here is the abstract:
Levy on Cognitive Science & Morality Neil Levy has uploaded Cognitive Science Challenges to Morality. Here is a taste:
Two By Balkin Jack M. Balkin (Yale) has two new papers on SSRN:
Keating on Rawls & Tort Gregory C. Keating (USC) has uploaded Rawlsian Fairness and Regime Choice in the Law of Accidents to SSRN. Here is the abstract:
Monday, June 07, 2004
Weekend Update On Saturday, the regular review of SSRN's top downloads was joined by the Download of the Week (Global Legal Pluralism and Electronic Democracy by Oren Perez) and the Legal Theory Bookworm's recommendation of Constitutional Construction: Divided Powers and Constitutional Meaning by Keith Whittington. On Sunday, the Legal Theory Calendar previewed this week's talks and events. The Legal Theory Lexicon entry was on primary and secondary rules. Monday Calendar
New from Law and Politics Book Review Three new reviews have just gone up:
Book Announcement: The Hand of Compassion
Call for Papers: Ars Disputandi
Call for Papers: Interdisciplinarity in the Social Sciences
Legal Theory Calendar
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. Sunday, June 06, 2004
Schwartz & Treanor on Eldred & Lochner Update: I posted this last week with a bad link. Thanks for alerting me to the problem & here is the post again, with the link fixed. Paul M. Schwartz and William Michael Treanor (Brooklyn Law School and Fordham University School of Law) have posted Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property (Yale Law Journal, Vol. 112, p. 2331, 2004) on SSRN. Here is the abstract:
Legal Theory Bookworm This week the Legal Theory Bookworm recommends Constitutional Construction: Divided Powers and Constitutional Meaning by Keith E. Whittington (Princeton). Here are excerpts from two reviews:
Download of the Week This week, the Download of the Week is Global Legal Pluralism and Electronic Democracy by Oren Perez (Bar-Ilan University, Faculty of Law). Here is the abstract:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:
Friday, June 04, 2004
Friday Calendar
Kalscheur on the Relationship betweeen Civil and Moral Law Gregory A. Kalscheur (Boston College - Law School) has posted John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism (Journal of Catholic Social Thought, Summer 2004) on SSRN. Here is the abstract:
Kang on Judicial Impartiality John M. Kang (Western Kentucky University - Department of Political Science) has posted John Locke's Political Plan, or, There's No Such Thing as Judicial Impartiality (And It's a Good Thing, Too) (Vermont Law Review, Vol. 29, No. 1, January 2005) on SSRN. Here is the abstract:
Thursday, June 03, 2004
Wednesday Calendar
O'Neill on Tort Law from a South & East Asian Perspective Timothy J. O'Neill (Southwestern University, Texas) has posted Through a Glass Darkly: Western Tort Law From a South and East Asian Perspective on SSRN. Here is the abstract:
Deakin & Konzelmann on Enron Simon Deakin and Suzanne J. Konzelmann (University of Cambridge - ESRC Centre for Business Research and University of Cambridge) have posted Learning from Enron (Corporate Governance: An International Review, Vol. 12, No. 2, pp. 134-142, April 2004) on SSRN. Here is the abstract:
Verchick on Normative Rules for Agency Interpretation Robert R.M. Verchick (University of Missouri at Kansas City - School of Law)has posted Toward Normative Rules for Agency Interpretation: Defining Jurisdiction under the Clean Water Act (Alabama Law Review) on SSRN. Here is the abstract:
Chang on Hacking Jason Chang (Harvard University) has posted Computer Hacking: Making the Case for a National Reporting Requirement on SSRN. Here is the abstract:
Bebchuk on Contractual Freedom in Corporate Law Lucian Arye Bebchuk (Harvard Law School) has posted The Debate on Contractual Freedom in Corporate Law (Columbia Law Review, Vol. 89, pp. 1395-1415, 1989) on SSRN. Here is the abstract:
Kelly on the War on Jurisdiction Claire Kelly (Brooklyn Law School) has posted The War on Jurisdiction: Troubling Questions about Executive Order 13303 (Arizona Law Review, Forthcoming) on SSRN. Here is the abstract:
Spiwak on the Telecom Act Lawrence J. Spiwak Phoenix Center for Advanced Legal & Economic Public Policy Studies) has posted Remembering What the Fight is About on SSRN. Here is the abstract:
Wednesday, June 02, 2004
Wednesday Calendar
Book Announcement: Politics and Vision: Continuity and Innovation in Western Political Thought by Sheldon Wolin
Good Advice from Heidi Bond I was very very impressed with Heidi Bond's two recent posts with advice (more or less) for first-year law students: What to get from your classes and Reading a law school case (for the first time). If you have found legal theory blog because you will be starting law school in the fall, print out Heidi's posts and reread them when your classes start. Odlyzko on Internet Architecture Andrew Odlyzko has posted Pricing and Architecture of the Internet. Here is a taste:
Davidov on Triangular Employment Relationships Guy Davidov (University of Haifa - Faculty of Law) has posted Joint Employer Status in Triangular Employment Relationships on SSRN. Here is the abstract:
Tuesday, June 01, 2004
New Reviews from the Law and Politics Book Review Several new reviews are just up on the Law and Politics Book Review of the Law and Courts Section of the American Political Science Association. Here are the links:
Conference Reminder: Scanlon & the Contractualist Picture of Morality on this Friday and Saturday at the University of London
Tuesday Calendar
Despite the apparent shroud of mystery, however, I will argue that Hume was wrong to claim that the nature of vice and virtue, in other words, value, cannot be discovered by reasoning; that value is a contingent fact of existence, dependant on the prior existence of life, and that, far from being mysterious or non-existent, value is a concept whose nature and application can be arrived at by sound, empirical reasoning. Downward Spirals Department Over at projo.com (The Providence Journal), there is an editorial entitled Judicial-selection truce. Here is a taste:
Congressional Oversight of the Judiciary? Tony Mauro has a story entitled Rehnquist's Olive Branch Too Late? on Law.com. Here is a taste:
Fleurbaey on Economic Justice Marc Fleurbaey has posted Economics and Economic Justice on the Stanford Encylopedia of Philosophy. Here is a taste:
Braddon-Mitchell on Act Consequentialism David Braddon-Mitchell has posted Freedom and Binding Consequentialism. Here is a taste:
West Reviews Abromeit's Reader on Marcuse Daved West has posted a Review of John Abromeit's Herbert Marcuse: A Critical Reader on Notre Dame Philosophical Reviews. Here is a taste:
Knox on the North American Agreements on Labor and the Environment John H. Knox (Pennsylvania State University - The Dickinson School of Law) has posted Separated at Birth: The North American Agreements on Labor and the Environment (Loyola of Los Angeles International and Comparative Law Review, Vol. 26, 2004) on SSRN. Here is the abstract:
Nissenbaum on Privacy Helen Nissenbaum (New York University) has posted Privacy as Contextual Integrity (Washington Law Review, Vol. 79, No. 1, 2004) on SSRN. Here is the abstract:
Yang on the NAFTA Environmental Side Agreement Tseming Yang (Vermont Law School) has posted The Effectiveness of the NAFTA Environmental Side Agreement's Citizen Submission Process: A Case Study of the Metales y Derivados Matter on SSRN. Here is the abstract:
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