Legal Theory Blog "All the theory that fits."  Legal Theory Blog Legal Theory Lexicon Lawrence B. Solum (Home Page) Lawrence B. Solum (University of Illinois College of Law Page) Lawrence B. Solum (University of Illinois Philosophy Department Page) Lawrence B. Solum (SSRN Page) Lawrence B. 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Elizabeth Malloy IdeoblogLarry Ribstein Instapundit.comGlenn Reynolds Is That Legal?Eric Muller Jack Bog's BlogJack Bogdanski JURIST - Paper ChaseBernard Hibbitts Law & Econ Prof BlogGroup Blog Law Librarian BlogJoseph A. Hodnicki LawFont.comGroup Blog Leiter ReportsBrian Leiter LessigLarry Lessig Conference Announcement: Evidence, Science, and Public Policy at Sydney CFP: Evidence, Science and Public Policy (Sydney 2009)Sydney-Tilburg conference on EVIDENCE, SCIENCE AND PUBLIC POLICYSydney Centre for the Foundations of Science26-28 March 2009Conference website:http://sydcfs.org.au/KEYNOTE SPEAKERS: Mark Burgman (University of Melbourne), John Quiggin (University of Queensland) and John Worrall (London School of Economics)ORGANISERS: Mark Colyvan (Sydney), Stephan Hartmann (Tilburg), James Justus (Sydney) and Jan Sprenger (Tilburg)The relationship between science and public policy is complex. Good public policy on matters such as the environment, climate change, health, the economy, and justice must be informed by good science. But this science needs to be conducted in ways amenable to the needs of the policy makers and the results communicated in ways accessible to both the policy makers and the public at large. Public policy issues might even impinge on the science itself. For example, acceptable levels of error might be thought to be determined by the consequences of the decisions to be made using the scientific findings. This raises many interesting philosophical questions about the relationship between science, evidence and public policy. Should science remain independent of policy decisions and concern itself only with evidence? Is this possible? What is evidence-based medicine and does it live up to its advertising? What is evidence-based public policy and what does it offer above standard policy making? Our goal in this conference is to bring together philosophers of science, political philosophers, policy makers, and other researchers interested in the science-policy interface. We welcome papers on any of the above questions as well as papers on broader issues concerning evidence, especially in applied contexts (e.g. legal, medical, and environmental).We invite submissions of extended abstracts of up to 1000 words by 1 December 2008. Decisions will be made by 15 January 2009. Posted by Lawrence Solum on October 07, 2008 at 11:47 AM in Conferences and Calls | Permalink | TrackBack (0) Heller on the International Criminal Court's "Situational Gravity" Standard Kevin Jon Heller (University of Auckland - Faculty of Law) has posted Situational Gravity Under the Rome Statute on SSRN. Here is the abstract:The ICC is often derided as the "African Criminal Court." That criticism cannot easily be dismissed: all of the Office of the Prosecutor's (OTP) current investigations focus on African states - Uganda, the Central African Republic, the Democratic Republic of Congo, and the Sudan - and it is analyzing the situations in three other African states, Cote D'Ivoire, Kenya, and Chad, to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq - the latter despite its conclusion that there was a "reasonable basis to believe" that UK nationals had willfully killed a number of civilians and subjected a number of others to inhumane treatment. The OTP has not denied - nor could it - that it has focused exclusively on situations in Africa. Instead, it has argued that its investigative decisions have been driven solely by an objective assessment of the gravity of the various situations, as required by Article 53 of the Rome Statute. In its view, the African situations are simply graver than the non-African situations, because they involve far greater numbers of victims. This essay critiques the OTP's quantitative conception of situational gravity. More specifically, it argues that the OTP should de-emphasize the number of victims in a situation in favor of three qualitative factors when it determines the gravity of a situation: (1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that offend the fundamental values of the international community - those that cause "social alarm"; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.Highly recommended! Posted by Lawrence Solum on October 07, 2008 at 05:36 AM in Criminal Law & Procedure Theory, International Law, Politics, and Economics | Permalink | TrackBack (0) Botterell on Subjectivist Justification in Criminal Law Andrew Botterell (University of Western Ontario - Faculty of Law) has posted Why We Ought to Be (Reasonable) Subjectivists About Justification(Criminal Justice Ethics, Vol. 26, No. 1, pp. 36-58, 200) on SSRN. Here is the abstract:In this paper I defend the idea that justifications in criminal law are best thought of subjectively rather than objectively, although the form of subjectivism I defend relies heavily on the concept of a reasonable belief, where reasonableness is seen to have an ineliminable public component. I contrast this position with Paul Robinson's objectivist account of justification, and draw some conclusions about the role played by harm in the criminal law. Posted by Lawrence Solum on October 07, 2008 at 02:15 AM | Permalink | TrackBack (0) Idleman on Catholic Justices Scott C. Idleman (Marquette University) has posted Private Conscience, Public Duties: The Unavoidable Conflicts Facing a Catholic Justice (University of St. Thomas Law Journal, Vol. 4, pp. 312-324, 2007) on SSRN. Here is the abstract:When questioned about the relationship between their faith and their decision making, Catholic judges typically invoke a model of detachment, pursuant to which their governmental role and responsibilities are not directly governed by, and thus do not readily conflict with, their potential duties as a faithful Catholic. This position of detachment has been expressed both during confirmation hearings and in situations where judges are asked to remove themselves from a case due to their religious beliefs or affiliation. This article addresses the possibility that this position is potentially at odds with Catholic Church doctrine regarding the obligations of civil officials. In particular, the article advances three arguments. First, it contends that the potential for conflicts between one's judicial and religious obligations will always exist and that trying to avoid it either by strategic ignorance or by attempted detachment is an inadequate avenue of resolution. Second, especially given a general lack of direct and authoritative Church teaching on the matter, each judge is individually obligated, by exercising the prerogative of a well-formed conscience, to resolve the conflict as it may arise from case to case. In so doing, the judge should ideally reach an outcome - even if this occasionally means recusal - that is consistent both with the Church's teachings and their natural implications, and with the professional responsibilities attending the judicial role. Third, if the result is recusal or anything else extraordinary, and if court rules or customs so require, the judge should be willing to explain the basis for his or her decision, assuming that the judge also employs an appropriate level of prudence. Posted by Lawrence Solum on October 07, 2008 at 02:13 AM | Permalink | TrackBack (0) Segall on Hein v. Freedom from Religion Eric Segall (Georgia State University - College of Law) has posted The Taxing Law of Taxpayer Standing (Tulsa Law Review, Vol. 43, No. 3, 2008) on SSRN. Here is the abstract:This article, "The Taxing Law of Taxpayer Standing," is a comprehensive exploration of the issues raised by the Supreme Court case Hein v. Freedom from Religion, et al, 551 U.S. __ (2007). The Court in Hein denied standing to federal taxpayers challenging President Bush's faith-based initiative program. This decision makes it virtually impossible for plaintiffs to challenge Executive Branch actions that allegedly violate the Establishment Clause unless Congress specifically authorized the expenditure at issue. If the President, for example, placed a permanent cross in the White House without using funds earmarked by Congress, it is unlikely anyone would have standing to challenge that decision Hein also reaffirms the seminal taxpayer standing case, Flast v. Cohen, which has been repeatedly criticized by scholars and Supreme Court Justices. This piece details the history of the taxpayer standing question, fully discusses the Hein decision, and suggests an alternative approach to this vexing jurisdictional question. Posted by Lawrence Solum on October 07, 2008 at 01:32 AM | Permalink | TrackBack (0) Sandefur on Holzer on Justice Thomas Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project) has posted Clarence Thomas's Jurisprudence Unexplained (NYU Journal of Law & Liberty, Forthcoming) on SSRN. Here is the abstract:This is a review of Henry Mark Holzer's The Supreme Court Opinions of Clarence Thomas. I contend that Holzer's book ignores significant debates within the conservative/libertarian community. I describe some of these debates - over the role of natural rights, the proper understanding of federalism, and the meaning of originalism - to determine how Justice Thomas' record compares to a freedom-centered interpretation of the Constitution. Posted by Lawrence Solum on October 07, 2008 at 01:09 AM | Permalink | TrackBack (0) Brand on Supreme Court Citations to Foreign & International Law Ronald A. Brand (University of Pittsburgh - School of Law) has posted Judicial Review and United States Supreme Court Citations to Foreign and International Law (Duquesne University Law Review, Vol. 45, p. 423, 2007) on SSRN. Here is the abstract:Recent decisions by the United States Supreme Court and extracurricular discussions between some of the Justices have fueled a debate regarding whether and when it is appropriate for the Court to make reference to foreign law in cases involving the interpretation and application of the United States Constitution. This debate has, to some extent, paralleled the argument over whether the Constitution is best interpreted by looking at the intent of the original drafters - an originalist approach - or by considering it to be a "living" document that must be interpreted to take account of contemporary realities. This article considers the rather limited nature of the real differences on these issues, the limited purpose of references that are made to foreign law in United States Supreme Court decisions, and the problem of being able to make comparisons without making reference to what it is that is being compared. Posted by Lawrence Solum on October 07, 2008 at 12:21 AM | Permalink | TrackBack (0) Fellowship Announcement: Jerome Hall Postdoc at Indiana Jerome Hall Postdoctoral FellowshipThe Center will appoint up to three post-doctoral fellows per year beginning with the 2009-10 academic year. We invite applications from scholars of law, the humanities, or social sciences working in the field of sociolegal studies. Pre-tenure scholars, recently awarded PhDs, and those with equivalent professional degrees are encouraged to apply. Advanced graduate students may also apply, but evidence of completion of the doctoral degree or its equivalent is required before beginning the fellowship.Fellows will devote a full academic year to research and writing in furtherance of a major scholarly project, and will receive a stipend plus a research allowance, health insurance, other benefits, and workspace at Indiana Law. They will conduct research at Indiana University and participate in the activities of the Center, which include an annual symposium, a colloquia series, and regular workshops and lectures. Link: http://law.indiana.edu/students/centers/JeromeHallPostdoctoralFellowship.shtml Posted by Lawrence Solum on October 06, 2008 at 12:38 PM in Opportunities & Fellowships | Permalink | TrackBack (0) Conference Announcement: Markets & Responsibilities at Oxford Call for Papers: Markets and Responsibilities, University of OxfordA two-day workshop sponsored by the University of Oxford Centre for Ethics and Philosophy of Law (CEPL) on the topic of ‘Markets and Responsibilities’ will be held on 10-11 July 2009, in at University College, Oxford, England.The goal of the workshop is to convene a group of legal and philosophical academics to discuss new papers on the broad theme of markets and responsibilities. Working from the assumption that markets are not morality-free zones, it is nonetheless true that markets affect our moral reasons for action and belief in a myriad of ways. If so, then the existence of markets and our participation in markets may be relevant to crafting appropriate legal responses to market conduct.The workshop’s theme is intended to capture an array of concerns regarding the ways in which markets affect agents’ moral and/or legal responsibilities, such as:• How does participation in markets affect reasons for action/belief?• How does the mere existence of a market affect one’s moral responsibilities?• How should the existence of markets and one’s participation in markets affect one’s legal responsibilities?• What values (and disvalues) can be realised through the creation of markets?• What values (and disvalues) can be realised through market participation?• Does mere market participation give rise to moral responsibilities for wrongs committed by other market participants?• Should market participation give rise to legal responsibilities for such wrongs?Workshop format:Accepted papers will be distributed in advance and all participants will be expected to have read the papers before the workshop. Each session will commence with a 10 minute commentary on the author’s paper, followed by open discussion. Once papers have been selected and authors consulted, it is envisioned that a book proposal will be submitted for publication as an edited collection of the workshop’s accepted papers.Important dates:* 1 December 2008 - submission of abstracts (350-500 words)* 10 June 2009 - submission of final papers (12,000-15,000 words)* 10-11 July 2009 - workshopContact information:Submit abstracts by 1 December 2008 to CEPL@law.ox.ac.uk Posted by Lawrence Solum on October 06, 2008 at 11:49 AM in Conferences and Calls | Permalink | TrackBack (0) Book Announcement: We Shall Overcome by Tsesis Yale University Press has published We Shall OvercomeA History of Civil Rights and the Law by Alexander Tsesis. Here is a description:Despite America’s commitment to civil rights from the earliest days of nationhood, examples of injustices against minorities stain many pages of U.S. history. The battle for racial, ethnic, and gender fairness remains unfinished. This comprehensive book traces the history of legal efforts to achieve civil rights for all Americans, beginning with the years leading up to the Revolution and continuing to our own times. The historical adventure Alexander Tsesis recounts is filled with fascinating events, with real change and disappointing compromise, and with courageous individuals and organizations committed to ending injustice. Viewing the evolution of civil rights through the lens of legal history, Tsesis considers laws that have restricted civil rights (such as Jim Crow regulations and prohibitions against intermarriage) and laws that have expanded rights (including antisegregation legislation and other legal advances of the civil rights era). He focuses particular attention on the African American fight for civil rights but also discusses the struggles of women, gays and lesbians, Japanese Americans, Latinos, Native Americans, and Jews. He concludes by assessing the current state of civil rights in the United States and exploring likely future expansions of civil rights.From the reviews:“Alex Tsesis, one of our leading constitutional scholars, superbly demonstrates how the struggle for civil rights in the United States has evolved over the past two centuries. His sweeping synthesis, combining a sure grasp of legal and political history, provides a perfect foundation for understanding why the issues surrounding minority rights and grievances remain such a dominant force in our nation today.”—David Oshinsky, University of Texas “This impressive book goes beyond existing works by showing how America’s commitment to equal rights constantly collides with its commitment to liberty.”—Richard Delgado, University of Pittsburgh School of Law"Tsesis has written an astonishingly clear and compelling history of what most people would define as 'civil rights' over the past two centuries. It is consistently illuminating."—Sanford Levinson, University of Texas School of Law“Anyone interested in obtaining a broad overview of Americans’ contested history of popular, legislative, and judicial efforts to achieve—and to obstruct—racial and gender equality will benefit from reading We Shall Overcome.”—Mark Tushnet, Harvard Law School “Alexander Tsesis presents a full, thoughtful, and readable history of civil rights in the United States—an outstanding account from the optimistic, liberal perspective that modern advances are the working out of the egalitarian vision of the American founders.”—Michael Les Benedict, author of The Blessings of Liberty"All citizens would be wise to read We Shall Overcome."—Eleanor J. Bader, New York Law Journal"An ambitious history. . . . Effective."—Publishers Weekly Posted by Lawrence Solum on October 06, 2008 at 08:05 AM in Legal Theory Bookworm | Permalink | TrackBack (0) Rosenzweig on a Derivatives Trading Tax Adam H. Rosenzweig (Washington University, St. Louis - School of Law) has posted Imperfect Financial Markets and the Hidden Costs of a Modern Income Tax on SSRN. Here is the abstract:The news has been filled with stories of meltdowns in the financial world, with the government, independent agencies, and politicians all devoting significant time and energy to coping with the consequences. As investment banks, hedge funds, and mortgage lenders continue to suffer massive losses, the government and its agents are left to try to pick up the pieces. Among other options being discussed, the government has proposed buying up illiquid assets of such investors, in effect betting on the price of illiquid mortgage securities. But what if, in addition to these more transparent problems, additional hidden costs from the financial crisis were being borne by the government in some other way? Even worse, what if the government had implicitly underwritten some of them in the first place? Building on insights from recent finance literature, this article contends that the government could in fact bear such hidden costs, through the interaction of a unique and underappreciated aspect of publicly traded financial derivatives - the ability to "decouple" the economic return of a risky asset from direct ownership of the underlying asset itself - and an income tax on risky investments. Under relatively conservative assumptions, such an analytical approach can produce a surprising result: the imposition of a facially neutral income tax can actually serve to subsidize speculators in financial derivatives, both in the model and as extrapolated to the real world. More specifically, an income tax in a world with imperfect financial markets can result in incentives to speculators to impose excessive amounts of liquidity risk on the markets, and the economy as a whole, with the government ultimately bearing the cost. These conclusions demonstrate the urgent need for a more comprehensive approach to financial derivative markets than has traditionally been undertaken, expanding the analysis beyond particular transactions to incorporate markets, traders, speculators, and investors more broadly. This article does so by proposing the adoption of a derivatives trading tax, not as a supplement to or replacement for, but rather as an integral part of, the income tax regime. Such a tax would not only offset the costs of imperfect financial markets borne by the government through the income tax, but could also ameliorate the suboptimal excess risk in the financial markets in the first place. Addressing such problems in this manner falls distinctly to the legal community, precisely because crafting the institutions and mechanisms necessary to equitably and efficiently allocate the costs and benefits of society is itself an inherently legal undertaking. Doing so may prove challenging, but it is a challenge to which the legal academy must rise for a comprehensive solution to be achieved. Posted by Lawrence Solum on October 06, 2008 at 04:27 AM in Tax Theory & Policy | Permalink | TrackBack (0) Pfander on Forum Shopping & Federalism James E. Pfander (Northwestern University School of Law) has posted Forum Shopping and the Infrastructure of Federalism(Temple Political & Civil Rights Law Review, Vol. 17, 2008) on SSRN. Here is the abstract:The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism. Political actors who have found their initiatives blunted at the national level have often turned to the states. With the ebb and flow of political power between two parties over time, arguments about the relative authority of federal and state governments display far more expediency than principle, far more mutability than predictability. States may be more or less progressive than the national government, depending in good measure on the temper of the times and the relative success of political movements in particular states and regions of the country. If states do not invariably produce progressive social legislation, why then should progressives like Justice Brandeis defend state sovereignty? This Essay suggests that the answer may lie in what it calls the infrastructure of federalism, a series of doctrines that ensure the binding effect of state law in our federal system of interstate litigation. By ensuring the binding effect of state law, the infrastructure of federalism both ensures that state legislatures remain relevant as centers of policymaking and serves to encourage interstate forum shopping. Forum shopping, in turn, may tend to advance the interests of plaintiffs in litigation outcomes. While improving plaintiff win rates does not directly advance progressive social values, forum shopping does tend to ensure that firms operating throughout the nation must comply with relatively more pro-consumer policies at the state level.Highly recommended. Posted by Lawrence Solum on October 06, 2008 at 04:13 AM | Permalink | TrackBack (0) Horwitz on Religion & Politics Paul Horwitz (University of Alabama School of Law) has posted Religion and American Politics: Three Views of the Cathedral on SSRN. Here is the abstract:The relationship between religion and politics in the American social and constitutional structure is a subject of endless contestation. Much of that discussion, taking place as it has in an academic environment, has had a decidedly abstract air. In this paper, I shift the focus from the abstract to the practical by looking at the central participants in the debate over religion and politics: the political candidates themselves. I offer a close reading of speeches by three of the most prominent political candidates to offer an examination of religion's role in politics: John F. Kennedy, Mitt Romney, and Barack Obama. A close reading of these three speeches reveals much common ground, but also a good deal of change and, I argue, progress in the terms of debate, although that progress is incomplete.The overall movement in the speeches is from a strategy of avoidance, practiced most notably by John F. Kennedy, in which minority religious candidates are welcomed in the public square but religion is rendered a private matter for both candidates and voters alike, to one of engagement and inclusion, in which both religious candidates and religious arguments are increasingly accepted in the public square. Each of the modern candidates examined here achieves only a partial marriage of inclusion and engagement. Mitt Romney pursues a strategy of inclusion in which religious views are permitted in political debate, but seeks to foreclose any genuine engagement with religion. By contrast, Barack Obama offers a thoughtful engagement between religion and politics. But he prescribes a rule of dialogue in which religious individuals are required to speak in publicly accessible terms, thus precluding the total inclusion of religious individuals in the political process in their own voices. In contrast to all three, I argue here for a model of genuine inclusion and engagement, in which religion and openly religious arguments are welcome in the public square but also subject to critical inquiry and disagreement. The model of inclusion and engagement may be messy, but it is also the fairest and best approach to the relationship between religion and politics.I had hoped to include some excerpts from this very interesting paper, but for some reason the PDF produced very odd characters after "cut and paste." So let me just say that this paper is highly recommended! Posted by Lawrence Solum on October 06, 2008 at 03:27 AM | Permalink | TrackBack (0) Greene on the Market for Originalism Jamal Greene (Columbia University - Columbia Law School) has posted Selling Originalism (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:The legal academy has been unkind to originalism. Legal scholars have leveled withering criticism at originalists, maintaining that their faith in judges' abilities to divine historical intent and meaning is facile and that their underlying account of democratic authority is theoretically impoverished and insufficiently attentive to actual constitutional practice. Yet originalism is itself a robust part of that practice and as a political aesthetic is at least as healthy today as it was when Justice Scalia joined the Court in 1986. This Article considers the import of originalism's practical success for nonoriginalist constitutional theories. To the extent that such theories rely on sustained public acquiescence as a legitimating criterion for constitutional interpretation, the capacity of a methodology to translate political ends into the language of constitutional law should be of great interest. Nonoriginalist theories that rely on the legitimating power of public acceptance must account for originalism's political success as an important part of their theories of constitutional change rather than as an unfortunate exception to them. I sketch an exemplary model of originalism's political success that is placed in market terms. I suggest that proponents of originalism have taken advantage of a democratization of the market for constitutional methodologies that has placed a premium on populist selling points such as simplicity, class-based critiques of judicial elites, and nativism. Developing similar and richer models of the political success of constitutional methodologies will help to round out heretofore underspecified theories of how constitutional change occurs outside of the Article V process.Hmm? Posted by Lawrence Solum on October 06, 2008 at 12:18 AM | Permalink | TrackBack (1) Smith on Science, Religion, and the Law George P. Smith II (Catholic University of America - Columbus School of Law) has posted Biotechnology, Religion, Modern Science and Law: Shaping or Testing the New Modernity? The Curse of Itching Ears on SSRN. Here is the abstract:This paper assesses how the modern Church of Rome, while maintaining its anchor in faith, is taking a balanced and-indeed-enlightened approach in dealing with complex challenges presented by the "New Biology." This assessment is undertaken specifically within three contentious issues: evolution; condom use where one partner in a marriage is infected with AIDS; and the transplantation of animal organs into humans. These three issues bring into dramatic focus the question of change and immutability in Church doctrine. As well, these areas demonstrate-clearly-a refreshing openness and willingness of the Church to engage in honest dialogue with the laity. The contrasting attitudes of His Holiness Pope John Paul II and His Holiness Pope Benedict XVI regarding the outreach of science and of faith is analyzed and the conclusion reached that an ongoing ethical and compassionate discourse into the vexatious issues of modernity and post modernity is being undertaken within a framework of enlightened reason which underscores the dignity of personhood. And, interestingly, the framework for this discourse is to be found in the work of The Pontifical Academy of Sciences reconstituted by His Holiness Pope Pius XI in 1936. Posted by Lawrence Solum on October 06, 2008 at 12:10 AM | Permalink | TrackBack (0) d'Aspremont on Value Transfers through International Law Jean d'Aspremont (University of Leiden - Faculty of Law) has posted Transfer of Values Through International Law: The Hobbesian Lessons from Eastern European Legal Scholars on SSRN. Here is the abstract:This paper analyzes the role that Eastern Europeans legal scholars ascribe to values and interests in their vision of the international legal order. It is argued here that the conception of these scholars may help reconcile the transformation of society brought about by a number of international rules with the criticisms inspired by cultural relativism. Indeed, it is submitted here that Eastern European legal scholarship provides an avenue to bypass the imperialistic objection inherent to any value-oriented understanding of the legal order. Posted by Lawrence Solum on October 06, 2008 at 12:05 AM | Permalink | TrackBack (0) Women and Blogging Check out these posts by Mary Dudziak, Ann Bartow, and Ann Althouse. Posted by Lawrence Solum on October 06, 2008 at 12:01 AM | Permalink | TrackBack (0) Legal Theory Lexicon: Legal Theory, Jurisprudence, and the Philosophy of Law Introduction The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is “jurisprudence” a synonym for “philosophy of law” or are these two overlapping but distinct fields? Is “legal theory” broader or narrower than jurisprudence? And why should we care about this terminology?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 in a political science department.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 discovering 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 remains. 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” and closely related to political philosophy. 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. (In both cases, the list of names is arbitrary and illustrative--we could add Coleman or Finnis or drop Donaldson or Wittgenstein and still refer to the same set of central tendencies.)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.My sense of the "lay of the land" is that debates over the "What is Law?" question have recently become more exciting (Scott Shapiro's work is just one example)--but in my opinion the center of attention has shifted from the nature of law to normative legal theory. A variety of potentially exiting developments that are very recent include the emergence of experimental jurisprudence and explorations of the connections between metaethics and metajurisprudence.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.BibliographyLon Fuller, Postivism & Fidelity to Law: A Reply to Professor Hart, 71 Harvard Law Review 630 (1958).H.L.A. Hart, The Concept of Law (2d ed. 1994).H.L.A. Hart, Positivism and the Separation of Law & Morals 71 Harvard Law Review 593 (1958).Robert Nozick, Anarchy, State, and Utopia (1974).John Rawls, A Theory of Justice (1971) & (rev. ed. 1999).(This entry was last revised on October 1, 2008.) Posted by Lawrence Solum on October 05, 2008 at 12:01 AM in Legal Theory Lexicon | Permalink | TrackBack (0) Legal Theory Bookworm The Legal Theory Bookworm recommends Moral Dimensions: Permissibility, Meaning, Blame by T. M. Scanlon.In a clear and elegant style, T. M. Scanlon reframes current philosophical debates as he explores the moral permissibility of an action. Permissibility may seem to depend on the agent’s reasons for performing an action. For example, there seems to be an important moral difference between tactical bombing and a campaign by terrorists—even if the same number of non-combatants are killed—and this difference may seem to lie in the agents’ respective aims. However, Scanlon argues that the apparent dependence of permissibility on the agent’s reasons in such cases is merely a failure to distinguish between two kinds of moral assessment: assessment of the permissibility of an action and assessment of the way an agent decided what to do.Distinguishing between these two forms of assessment leads Scanlon to an important distinction between the permissibility of an action and its meaning: the significance for others of the agent’s willingness to act in this way. An action’s meaning depends on the agent’s reasons for performing it in a way that its permissibility does not. Blame, he argues, is a response to the meaning of an action rather than its permissibility. This analysis leads to a novel account of the conditions of moral responsibility and to important conclusions about the ethics of blame.Scanlon is one of the best! Posted by Lawrence Solum on October 04, 2008 at 12:30 AM in Legal Theory Bookworm | Permalink | TrackBack (0) Download of the Week The Download of the Week is The Concept and the Rule of Law by Jeremy Waldron. Here is the abstract:This article explores and connects two issues: (1) the relation between the Rule of Law (or legality) and the work we do in general jurisprudence on the concept of law; and (2) the distinction between conceptions of the Rule of Law that emphasize certainty, rules, and predictability and conceptions of the Rule of Law that also emphasize procedure and argument, even when legal argumentation detracts from the certainty emphasized the first set of conceptions. It argues (1) in favour of a more demanding understanding of what law is (informed by the ideal of the Rule of Law) and against "casual positivism" that takes almost any instance of centralized command and control as a legal system. And it argues (2) in favour of a procedural and argumentative conception of the Rule of Law. It connects the two arguments by observing that casual positivism is commonly associated with an impoverished rule-oriented understanding of the Rule of Law is associated commonly; and (following Dworkin and MacCormick) it suggests that a jurisprudence that emphasizes the role of legal argumentation and the institutions that sponsor it, will inevitably bring our conceptions of law and legality very close together.And from the paper:If we understand the relation between the concept of law and the Rule of Law in the way that I have urged us to understand it, then the importance of the second procedural current is obvious. No concept of what law is will be adequate if it fails to accord a central role to institutions like courts, to their distinctive procedures and practices like legal argumentation. Conceptual accounts of law that only emphasize rules and say nothing more about legal institutions than that some institutions make rules and some institutions apply them are way too casual in their understanding of what a legal system is. They are like understandings of democracy that neglect the central role of elections. A philosophy of law is impoverished as a general theory if it pays no attention to the formalized procedural aspects of courts and hearings and elementary features like offering both sides an opportunity to be hard. It reveals the emptiness of conceptual analysis if it makes no attempt to capture all this in abstract terms or regards it all this as just a contingent feature of some legal systems and not others, and therefore beneath the notice of general jurisprudence. I said too that even if one could defend focusing purely on the rules themselves, a philosophy of law would still be impoverished if it paid no attention to the defining role of laws aspiration to coherence among the norms that it contains and to the forms of reasoned argumentation that are involved both in maintaining that consistency and in bringing it to bear in the application of norms to particular cases.Read this. Highly recommended. Posted by Lawrence Solum on October 04, 2008 at 12:05 AM in Download of the Week | Permalink | TrackBack (0) Fellowship Announcement: Stanford Center on the Legal Profession Stanford Law School’s Center on the Legal Profession invites Fellowship applications for the forthcoming academic year (2009-2010). The Center on the Legal Profession, directed by Professor Deborah L. Rhode, supports research, teaching, programs, and public policy initiatives on crucial issues facing the bar. The Center focuses on issues of professional responsibility and the structure of legal practice. Central concerns include how to enhance access to justice, sustain ethical values, improve bar regulatory structures, and effectively respond to the changing dynamics of legal workplaces. Upcoming Center events include The Roadmap to Justice Project, a national effort to draw leaders in the field to develop an agenda for expanding access to legal services for low- and middle-income individuals, and the International Legal Ethics Conference in 2010. The Center on the Legal Profession Fellowship is a full-time, one-year residential fellowship beginning in June 2009. It is designed to offer scholars interested in topics of professional responsibility and the structure of legal practice an opportunity to conduct research and participate in law school events. Fellows are encouraged to attend weekly faculty lunch seminars and participate in activities with the growing number of law school fellows, pursue a scholarly project, and assist with a course on the legal profession. Fellows will be provided with office space, a stipend of $50,000, and a generous benefits package. Applicants must have a JD or a PhD in a relevant area. The Center particularly welcomes applications from individuals interested in pursuing careers in legal academia. Applicants should submit the following via email or regular mail by December 1, 2008: (1) a cover letter, (2) a resume or CV, (3) an official law school transcript (if applicable), (4) three letters of recommendation sent directly from the writer, (5) a writing sample (applicants who already have scholarly publications related to the topic should submit a list of all published writings), and (6) a research proposal that describes the proposed work during the fellowship period and explains the project’s significance to the Center on the Legal Profession (2000 words or less). Candidates will be selected on the basis of their academic merit and the intellectual contribution of their research proposal. Acceptance decisions will be made by January 9, 2009. All inquires about the program and applications should be submitted to: Amanda PackelAssociate Director, Center on the Legal ProfessionStanford Law School559 Nathan Abbott WayStanford, California 94305-8610apackel@stanford.eduTel (650) 736-9770Fax (650) 721-5537 Posted by Lawrence Solum on October 03, 2008 at 05:59 AM in Opportunities & Fellowships | Permalink | TrackBack (0) Berman on the Rule of Recognition, the Constitution, and Argumentative Practice Mitchell N. Berman (University of Texas School of Law) has posted Constitutional Theory and the Rule of Recognition: Toward a Fourth Theory of Law (THE RULE OF RECOGNITION AND THE UNITED STATES CONSTITUTION, Matthew D. Adler, Kenneth Einar Himma, eds., Oxford University Press, 2009) on SSRN. Here is the abstract:This essay, a contribution to a forthcoming edited volume on Hart's rule of recognition and the U.S. Constitution, advances one argument and pitches one proposal. The argument is that Hart's theory of law does not succeed. On Hart's account, legal propositions are what they are - that is, they have the particular content and status that they do - by virtue of their satisfying necessary and sufficient conditions that are themselves established by a special sort of convergent practice among officials. American constitutional theorists are often troubled by this account because it seems to imply that in the "hard cases" in which practice-legitimated modalities of constitutional argument conflict, there is no law (or, put more precisely, such law as exists is much too general to resolve disputes), leaving judges with the extra-legal or political task of crafting more determinate law. Vindicating constitutional theorists' disquiet with the dichotomous law/not-law picture that emerges from the Hartian account, I argue that law cannot be validated by practice-determined criteria in the way that Hart proposes. If my argument is sound, and therefore Hart's account is not, it remains to determine what the correct theory of law is. My proposal is to view law as an argumentative practice. Of course, put so generally, this notion will hardly be controversial: no contemporary jurisprudential theories are likely to deny tout court that law incorporates a dimension of practice or that it involves argument. It is beyond the ambition of this essay to fully articulate, let alone to successfully defend, a distinctive practice-based theory of law. But, drawing on recent work by Gerald Postema, it endeavors to say enough to escape vacuity, to distinguish my argumentative account from Dworkin's, and to nourish hope that the image dimly glimpsed can be realized.Highly recommended. Posted by Lawrence Solum on October 03, 2008 at 05:36 AM | Permalink | TrackBack (0) Harel & Kahan on Judicial Review Alon Harel and Tsvi Kahana (Hebrew University of Jerusalem - Felt Center for Legal Studies) have posted The Easy Core Case for Judicial Review on SSRN. Here is the abstract:This paper defends judicial review on the grounds that judicial review is necessary for protecting "a right to a hearing." Judicial review is praised by its advocates on the basis of instrumentalist reasons, i.e., because of its desirable contingent consequences such as protecting rights, promoting democracy, maintaining stability, etc. We argue that instrumentalist reasons for judicial review are bound to fail and that an adequate defense of judicial review requires justifying judicial review on non-instrumentalist grounds. A non-instrumentalist justification grounds judicial review in essential attributes of the judicial process. In searching for a non-instrumental justification we establish that judicial review is designed to protect the right to a hearing. The right to a hearing consists of three components: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision that impinges (or may have impinged) on one's rights and, last, the duty to reconsider the initial decision giving rise to the grievance. The right to a hearing is valued independently of the merit of the decisions generated by the judicial process. We also argue that the recent proposals to reinforce popular or democratic participation in shaping the Constitution are wrong because they are detrimental to the right to a hearing.Nifty. Posted by Lawrence Solum on October 03, 2008 at 04:46 AM | Permalink | TrackBack (0) Bilder on Colonial Constitutionalism Mary Sarah Bilder (Boston College - Law School) has posted Colonial Constitutionalism and Constitutional Law (THE TRANSFORMATION IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF MORTON J. HORWITZ, Alfred L. Brophy, Daniel W. Hamilton, eds., Harvard University Press, 2008, Boston College Law School Legal Studies Research Paper No. 164) on SSRN. Here is the abstract:This essay reconsiders the transformation of colonial constitutionalism to Constitutional Law. The transformation of constitutional law does not map neatly onto the 1776 - 90 period. This essay argues that the transformation was less the result of the admittedly important invention of a written constitution than of three less apparent transformations. A first essential transformation in constitutionalism occurred long before 1776 when seventeenth-century colonists created a new conception of the written and published charter as the location of authority and liberties. A second essential transformation occurred only after 1790 when appeals in judicial cases began to be publicly reported in print, thereby creating a stable and analyzable body of law. A third essential transformation occurred in 1787 - but with implications not immediately appreciated. Privy Council review of colonial legislation ended and no similar review took its place, thus leaving the judiciary the sole arbiter of constitutional law. These three transformations created modern American constitutionalism - a law two centuries in the making. Posted by Lawrence Solum on October 03, 2008 at 02:42 AM in Legal History and Historiography | Permalink | TrackBack (0) White on Kantian Ethics & Prisoners' Dilemmas Mark D. White (College of Staten Island) has posted Kantian Ethics and the Prisoners' Dilemma (Eastern Economic Journal, 2009) on SSRN. Here is the abstract:The prisoners' dilemma game stands as a seminal case of the conflict between individual and collective rationality. Some scholars have suggested that Kantian duty-based ethics can prevent the suboptimal outcomes associated with the game. I argue that this claim is too strong, because Kant's moral theory does not entail specific duties requiring cooperation in prisoners' dilemma games. I support this argument in terms of Kant's categorical imperative, and also with reference to his distinction between perfect and imperfect duties. Posted by Lawrence Solum on October 03, 2008 at 01:57 AM in Law and Economics, Moral Philosophy | Permalink | TrackBack (0) Perry on the Constitution, Judicial Review, and Human Rights Michael Perry (Emory University School of Law) has posted Entrenching, Interpreting, and Specifying Human Rights: Some Comments on the U.S. Constitution and Judicial Review on SSRN. Here is the abstract:This essay is my contribution to a symposium on originalism, to be held at the University of Western Ontario in October 2008. In the essay, I address the question What does it mean - or, at least, what should it mean - to 'interpret' the constitutional text? I then explain that one's answer to that question - even if one's answer is originalist - does not entail any particular answer to two further, distinct questions: (1) How large a role, or how small, should the U.S. Supreme Court play in specifying - in rendering more determinate - a constitutional norm that is implicated by, but underdeterminate in the context of, one or another constitutional controversy? (2) In resolving constitutional controversies, should the U.S. Supreme Court always proceed, at least in part, on the basis of what it believes to be the correct interpretation of the constitutional text? I conclude this essay with a question I have addressed elsewhere, and to which I will eventually return: In specifying entrenched but contextually underdeterminate human rights norms, should the U.S. Supreme Court take the path of Thayerian deference? Posted by Lawrence Solum on October 03, 2008 at 01:28 AM | Permalink | TrackBack (0) Kotler on Sovereign Immunity & Preemption Martin A. Kotler (Widener University - School of Law) has posted Shared Sovereign Immunity as an Alternative to Federal Preemption: An Essay on the Attribution of Responsibility for Harm to Others (Hofstra Law Review, Forthcoming) on SSRN. Here is the abstract:Beginning with the Supreme Court's 1992 decision in Cipollone, courts have engaged in the practice of parsing the preemption language of federal legislation ostensibly to determine whether Congress intended to preclude the possibility of imposing liability on manufacturers under state products liability law. This article argues that congressional intent is largely a fiction and the cases based on it have been improperly decided. Nevertheless, the results reached in many of the cases are intuitively appealing. The reason for this is that the results commonly are based on the long-standing fairness principle that one should not be subjected to liability in cases where one's conduct was mandated by legislative or regulatory command. The article goes on to argue that by deciding these cases on the basis of shared sovereign immunity, courts can retain the attractive parts of the decisions while simultaneously moving away from the obvious fiction of congressional intent. Posted by Lawrence Solum on October 03, 2008 at 12:49 AM | Permalink | TrackBack (0) Next » _qoptions = { tags:"typepad.core" }; _qacct="p-fcYWUmj5YbYKM"; quantserve(); |
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