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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 |
Monday, October 31, 2005
Hasen Predicts Check out Rick Hasen's prediction re the outcome of the Alito nomination here. Here's a taste:
Weekend Update On Saturday, the Download of the Week was Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change by Ronen Avraham and the Legal Theory Bookworm recommended America's Constitution : A Biography by Akhil Reed Amar. On Sunday, the Legal Theory Lexicon entry was Deontology and the Legal Theory Calendar previewed this weeks workshops and conferences. Monday Calendar
Columbia Legal Theory Workshop: Alon Harel of Hebrew University in Jerusalem, "The Right to Judicial Review" London School of Economics: Meghnad Desai (LSE), Measures of Development NYU Law: Sam Estreicher & Shmuel Leshem UCLA Law: Professor Muneer Ahmad, American University, Washington College of Law, Interpreted Communities: Lawyering Across Language Difference Call for Papers: Collective Intentionality
Conference Announcement: Comparative Hate Speech Regulation at Cardozo
Alito President Bush will nominate Samuel Alito to replace Sandra Day O'Connor as Associate Justice of the Supreme Court of the United States. Some links:The official announcement will be at 8:00 a.m. Eastern Standard Time. Sunday, October 30, 2005
Legal Theory Calendar
Columbia Legal Theory Workshop: Alon Harel of Hebrew University in Jerusalem, "The Right to Judicial Review" London School of Economics: Meghnad Desai (LSE), Measures of Development NYU Law: Sam Estreicher & Shmuel Leshem UCLA Law: Professor Muneer Ahmad, American University, Washington College of Law, Interpreted Communities: Lawyering Across Language Difference
Lewis & Clark Law: Susan Mandiberg, Why the Federal Sentencing Guidelines Were Doomed to Failure. Oxford Intellectual Property Research Centre: Dr Greenhalgh & Dr Mark Rogers, Trade Marks & Performance in Services USC : Direct Democracy on the Brink: The California Special Election. This looks like a fabulous event! Be sure to click through for the lineup of speakers!
University College, London, Mellon Foundation: Andrea Baumeister (Stirling), Diversity and Unity: The Problem with Constitutional Patriotism Philosophy of Education, London: Graham Haydon, On the Duty of Educating Respect: a response to Robin Barrow's 'On the Duty of Not Causing Offence' Northwestern Law & Economics: Randy Kroszner, Professor of Economics, University of Chicago. NYU Legal History: Gerard Magliocca, Associate Professor of Law , Indiana University School of of Law, Indianapolis, "One Turn of the Wheel: Andrew Jackson and the Modern Constitution." Oxford Centre for Criminology: Susanne Karstedt, Al Quaida is not a Network but an Ideology: Global Social Movements and Local Terror Villanova University Law: Marc Galanter, University of Wisconsin Law School.
University of Michigan Law & Economics: Jesse Fried, UC-Berkeley, The Vulnerability of Common Shareholders in VC-Backed Firms University of Minnesota Public Law Workshop: Regina Austin, University of Pennsylvania Law School, Article: Law-Genre Documentaries and Visual Legal Advocacy Brooklyn Law School: Kimberly Yuracko, Northwestern University School of Law, Trait Discrimination as Race Discrimination: An Argument About Assimilation Boston University Law: David Lyons, "Rights and Recognition" Fordham University Law: Rachel Moran, Robert D. & Leslie-Kay Raven Professor of Law, University of California at Berkeley (Bacon-Kilkenny Distinguished Visiting Professor, Fordham University School of Law, Fall 2005), "Of Doubt and Diversity: The Future of Affirmative Action in Higher Education" Florida State University Law: Paul Rubin, Emory University School of Law. American University, The First Annual Distinguished Lecture on Intellectual Property: Pamela Samuelson, UC Berkeley, “Copyright and Consumer Protection” London Institute of Philosophy Conference and Seminar Series: Lizzie Fricker (Oxford), Testimony and Epistemic Authority British Institute of Human Rights, London: Michael Drolet (Oxford), Foundations and Anti-Foundations: Quentin Skinner and Jacques Derrida on Power and the State NYU Colloquium in Law, Philosophy, and Political Theory: Elizabeth Harman - Reading # 9 - November 3rd, 2005 Elizabeth Harman, The Mistake in "I'll Be Glad I Did It" Reasoning: The Significance of Future Desires & Sacred Mountains and Beloved Fetuses: Can Loving or Worshipping Something Give It Moral Status? Loyola Law School, Los Angeles: John T. Parry, Visiting Professor of Law, Lewis & Clark Law School, "The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees" Oxford Public International Law Discussion Group: Dr Rosalie Balkin, Diplomatic conference on the revision of the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Treaties Oxford Institute of European and Comparative Law: Professor Javier Lete Achirica, The Regulation of Unfair Contract Terms in Spanish Law. Oxford Centre for Socio-Legal Studies & Public Interest Law Programme: Daniel Machover and Kate Maynard, The recent attempt by Metropolitan Police to arrest the Israeli General, Doron Almog, at Heathrow Airport for grave breach of the Fourth Geneva Convention 1949, in the Occupied Territories of West Bank and Gaza University College London, Faculty of Law: Dr Jorge Fedtke (UCL), ‘Identity Cards and Data Protection: Security Interests and Individual Freedom in Times of Crisis’ University of Pennsylvania Philosophy: Michele Moody-Adams, Cornell University, What's So Special About Academic Freedom? Vanderbilt Law: Christopher Yoo, Vanderbilt Law School, "Copyright and the Theory of Impure Public Goods" Yale Legal Theory Workshop: Peyton Young, Johns Hopkins University (Economics), The Power of Norms
University of Mississippi Law: The Americans with Disabilities Act at 15: Past, Present, and Future. Participants include Peter Blanck, Kaaryn Gustafson, Ann Hubbard, Miranda McGowan, Camile Nelson, Michael Stein, and Michael Waterstone. Boston College Law: Adam J. Hirsch, William and Catherine VanDercreek Professor of Law, Florida State University College of Law, Visiting Professor of Law, Boston College Law School. Thomas Jefferson Law: Patent Law Symposium. Ohio State Legal History: Scott D. Gerber, Ohio State, The Origins of an Independent Judiciary: A Study in Early American Constitutional Development, 1606-1787 UCLA Law: Kirk Stark, UCLA School of Law. University of Pennsylvania Philosophy: Michele Moody-Adams, Cornell University, Arguing with the Past. University of Texas Law: Samuel Issacharoff, NYU School of Law, "Backdoor Federalization: Grappling with the Risk to the Rest of the Country" William Mitchell Law: Juvenile Justice Symposium Legal Theory Lexicon: Deontology
What Rights and Duties Do We Have? The idea that some actions are wrong and therefore forbidden has a strong intuitive appeal. And we can easily generate a list of action types that are at least ceteris paribus wrongful: telling lies, breaking promises, intentionally killing or injuring an innocent person, stealing, and so forth. For some purposes, a simple list of wrongs may be sufficient. But philosophers and legal theorists are unlikely to be satisfied with a list. Why not? Because the content of the list is likely to become controversial. Lying belongs on the list, but what about the failure to make a full disclosure to a stranger in an arms length commercial transaction? Battery is on the list, but should the exception for self-defense be extended to defense of property? So what method or principle allows us to identify the list of duties, rights, and permissions that would provide the content of a fully specified deontological moral theory? One possibility is that we would identify the list by appeal to our sense of what is right and wrong. Let's give that sense a fancy name: call it "moral intuition." One possible method for identifying the content of a deontological moral theory would be to consult our moral intuitions about particular cases. But objections to this method are likely to arise immediately. For example, my intuition may not agree with your intuition. What then? Even if I consult only my own intuition, I may come to see that my intuitions about particular cases are not consistent at the level of principle. My intuition makes an exception for lies told to instructors as excuses for turning in late papers, but not for lies told to friends as excuses for extreme lateness. Raw moral intuitions might be refined through a technique suggested by the philosopher John Rawls--the method of reflective equilibrium. We might aim to order our raw moral intuitions by positing some general principles that would explain and unify our considered judgments about particular cases. Once we have a set of general principles, it may turn out that some of our considered judgments about particular cases need to be revised. In other cases, a general principle may conflict with a considered judgment about a particular case that we hold very firmly. In such a case, we may wish to modify our general principles. If we work at it, we might eventually reach a point where our revised general principles are in agreement with our revised judgments about particular cases. Rawls call this state "reflective equilibrium." The same procedure might be used collectively to resolve conflicts between the judgments of different individuals; Norman Daniels call this interpersonal use of reflective equilibrium, "wide reflective equilibrium." Kant Reflective equilibrium is one way to specify the content of a deontological moral theory. The German philosopher Immanuel Kant provides another. Before I proceed any further, I want to make it clear that what I am about to say does not provide anything close to even a basic introduction to Kant's moral philosophy. That would take a series of several Legal Theory Lexicon posts. Nonetheless, we can get a glimpse of one of Kant's most important ideas, the categorical imperative. Kant believed that duty was the central moral idea, and he recognized the problem of specifying duty. Kant had a particularly deep and interesting solution to that problem which begins with the idea of a good will: "Nothing can possibly be conceived in the world or out of it that can be called good without qualification except a good will." And a good will is a will that aims for the good and not merely for the objects of desire and inclination. If we act on the basis of a hypothetical imperative (if I want X, then I should do Y), we act on the basis of desire and inclination--"heteronomously" in Kant's terminology. In order to aim for the right, we must act on the basis of a categorical imperative, that is, on the basis of a reason or principle that does not include a desire or inclination. (In Kant's terminology, this would be acting "autonomously.") So what would a categorical imperative look like? Kant's answer to this question is stunningly brilliant--one of the most awesome moves in the history of philosophy. Kant suggested that one could act on the basis of a categorical imperative by consulting what he saw as three equivalent formulas:
The Formula of the End Itself: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end." The Formula of the Kingdom of Ends: "So act as if you were through your maxims a law-making member of a kingdom of ends." O'Neill focused on the formula of the end itself, so let me say just a few words about the formula of the law of nature by giving an example. Suppose you are deciding whether to tell a lie to a friend to get out of a lunch date. You first ask yourself, "What is the maxim (or principle) of my action?" Suppose the answer is "Lie when convenient!" Now, you imagine that if you were to lie to your friend the principle upon which you acted would become a universal law of nature--everyone would one lie when it was convenient. Could or would you do this? Arguably not, for two reasons. First, if everyone were to lie whenever it was convenient, human communication might become impossible, because no one could be trusted. The maxim--lie whenever convenient--has a contradiction in conception, because the lie would never be believed in the possible world in which the maxim of your action was a universal law of nature. Second, if one can imagine a world in which everyone lies when convenient, you might not be willing to lie on this occasion if the result of your action was that the maxim--lie whenever convenient--were to become a universal law of nature as a result. You might not want others to lie to you when they thought it was convenient--we can call this a contradiction in the will. Of course, my analysis of this example has been very sketchy and crude, but I hope that I have done enough to give you the general idea. Some Objections to Deontology All of the main approaches to moral theory are controversial, and because the debates have been raging for centuries, the arguments are now enormously complex. So I am going to give two very simple objections to deontology, with the warning that the current state of play on these objections is now so complex and ramified that you really must be a specialist to give even a rough summary.
The Rigor Objection. The second objection begins with the assumption that deontology does produce determinate answers to particular questions of morality, but argues that the answers are implausible, because they are too demanding or inflexible. Consequentialist critics of deontology argue that absolute rights, duties, and permissions can lead to consequences that would not be morally acceptable. One famous hypothetical, based on Kant's discussion of lying, imagines that you are in Germany before World War II and a Nazi has come to your door and inquired whether you have seen a Jew who has escaped. If there is an absolute moral duty to tell the truth, then you are not permitted to lie in response, but telling a lie may be the only way to save the life of an innocent person. Surely, the consequentialist argues, telling the lie is not only morally permissible, it is morally required. Deontologists can try to escape from examples like these in a variety of ways. For example, the deontologist might simply argue that there is no duty to tell the truth to evil doers who will use the truth for evil purposes. Or the deontologist might argue that this is a case which duties conflicts, and that some higher order principle favors the duty to protect the innocent person from evil over the duty to tell the truth. Or the deontologist might allow that duties can be overridden by consequences in some circumtances. Some deontologists may bite the bullet and argue that one is required to tell the truth, even if the consequences are horrific. Links Saturday, October 29, 2005
Saturday Calendar
Legal Theory Bookworm The Legal Theory Bookworm recommends America's Constitution : A Biography by Akhil Reed Amar. Here's a review by Scott Turow:
Download of the Week The Download of the Week is Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change by Ronen Avraham. Here is the abstract:
Welcome to the Blogosphere . . . to Right Reason, with Roger Kimball, Edward Feser, John Kekes, Roger Scruton, Graeme Hunter, Rob Koons, Francis Beckwith, Chris Tollefsen, and many others. Friday, October 28, 2005
Friday Calendar
University of Chicago Legal Forum: Symposium, Life and Law: Definitions and Decisionmaking. Fred Schauer will be giving the keynote address. Georgetown International Human Rights Colloquium: Allison Marston Danner, Vanderbilt University School of Law, "When Courts Make Law: How International Criminal Tribunals Recast the Laws of War" William Mitchell Symposium: Special Tactics for a Secret War
New. St. John’s University School of Law: Edward J. Imwinkelried, The Alienability of Evidentiary Privileges: Of Property and Evidence, Burden and Benefit, Hearsay and Privilege. Announcement: Values in Public Life at the Heytrop Institute
Request for Proposals: AALS Workshop on Intellectual Property
Conference Announcement: Impartiality and Partiality in Ethics at Reading
Book Announcement: The Judicialization of Politics in Latin American
Thursday, October 27, 2005
Conference Announcement: The Chief Justice & the Institutional Judiciary at Penn
Miers Withdraws Here's an excerpt from the New York Times story:
Thursday Calendar
Oxford Jurisprudence Discussion Group: Pavlos Eleftheriadis, Rights in Deliberation Stanford Law & Economics: Ian Ayres (Yale Law School), "An Option Theory of Legal Entitlements" University of Minnesota Public Law Workshop: Myron Orfield, University of Minnesota Law School, "The Minneapolis Desegregation Settlement" University of Michigan Law & Economics: Sean Griffith, Connecticut, Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies Brooklyn Law School: Susan N. Herman, Brooklyn Law School, The Patriot Act and the Submajoritarian Fourth Amendment. Fordham University School of Law: Linda C. McClain, Rivkin Radler Distinguished Professor of Law, Hofstra University School of Law, and James E. Fleming, Professor of Law, Fordham University School of Law, "Constitutionalism, Judicial Review, and Progressive Change". NYU Colloquium in Law, Philosophy, and Political Theory: Tommie Shelby, Black Solidarity After Black Power. Boston University School of Law: Eric Blumenson (Suffolk), "The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court". Here is the abstract:
Forum for European Philosophy (Londong): Matt Cavanagh (IPPR), Sen and Williams: Consequentialism and Public Policy Oxford Public International Law Discussion Group: Anthony Carty, The Limits of Institutionalism and Pragmatism in International Law - Any Other Way Forward? Oxford Institute of European and Comparative Law: Matthias Mahlmann, A New War of Religions? Problems and Prospects of Religious Tolerance University College, London: Charles Mitchell, "Equitable Rights and Wrongs" Vanderbilt Law: Glynn Lunney, Tulane University Law School, "The Law, Economics, and Morality of File Sharing" Vanderbilt Law: John Yoo, UC-Berkeley, Boalt Hall School of Law, "Force and Institutions" Wednesday, October 26, 2005
Wednesday Calendar
Northwestern Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University, "Crossing the Punitive-Compensatory Divide" NYU Legal History: William Nelson, Weinfeld Professor of Law, NYU School of Law “The Common Law in Colonial America,” part II. Loyola Law School, Los Angeles: Peter Oh, Assistant Professor of Law, William Mitchell College of Law, "The Dutch Auction Myth" Oxford Clarendon Law Lectures: Stephen Cretney, Gay marriage, constitutional reform, social policy and democracy New. University of Toronto James Hausman Tax Law and Policy Workshop Series: Kirk J. Stark (UCLA), Time Consistency and the Choice of Tax Base. (Thanks to Paul Caron!) Lobel on Work Law Orly Lobel (University of San Diego) has posted The Four Pillars of Work Law (Michigan Law Review, 2006) on SSRN. Here is the abstract:
Stras on Judicial Retirement David Stras has posted The Incentives Approach to Judicial Retirement (Minnesota Law Review, Vol. 90, 2006) on SSRN. Here is the abstract:
Chesney on International Detainee Transfers Robert Chesney (Wake Forest University - School of Law) has posted Leaving Guantanamo: The Law of International Detainee Transfers (University of Richmond Law Review, 2006) on SSRN. Here is the abstract:
Avraham on Pain-and-Suffering Damages Ronen Avraham (Northwestern University - School of Law) has posted Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change (Northwestern University Law Review, Vol. 100, Fall 2005) on SSRN. Here is the abstract:
Barnes on Spyware Wayne Barnes (Texas Wesleyan University - School of Law) has posted Rethinking Spyware: Questioning the Propriety of Contractual Consent to Online Surveillance (UC Davis Law Review, Vol. 39, 2006) on SSRN. Here is the abstract:
Call for Papers: Perspectives on Evil and Human Wickedness
Book Announcement: The Jewish Social Contract by Novak
Tuesday, October 25, 2005
McAdams on Special Prosecutors Over at the University of Chicago Law Schools, "The Faculty Blog," Richard McAdams has a post entitled The Special Prosecutor's Authority. Here's a taste:
Tuesday Calendar
Georgetown Law: Jonathan Molot. NYU Colloquium in Law, Economics, and Politics: Robert Inman (The Wharton School - University of Pennsylvania) with Daniel Rubinfeld (University of California, Berkeley and NYU School of Law), "Federal Institutions and the Democratic Transition: Learning from South Africa" & Accompanying tables and appendix Oxford Human Rights Discussion Group: Jeff King and Gregoire Webber, Human Rights and the Role of Courts: A Debate Oxford EC Law Discussion Group: Stephen Weatherill, EC law and sport - will the Oulmers case destroy international football? Oxford Centre for Socio-Legal Studies: HE Yoweri Kaguta Museveni, Developing Nations & Human Rights: A perspective on present day Uganda. Oxford Clarendon Law Lectures: Stephen Cretney, Partnership or Marriage: "Gay, straight, black or white, marriage is a civil right" Vanderbilt Law: Howard Erichson, Seton Hall Law School, "Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation" Lemos on Criminal Punishment and the Commerce Clause Margaret H. Lemos (New York University - School of Law) has posted The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence? (Texas Law Review, Vol. 84, 2006) on SSRN. Here is the abstract:
Call for Papers: Joint Session 2005
Monday, October 24, 2005
Miers Blogging Check out What Should Democrats Do About Miers? Beyond the Popcorn Strategy by Jack Balkin & Why AG Gonzales Will Not Be Nominated to Replace Harriet Miers and What We Might Get Instead by Rick Hasen. Here's a taste from Hasen's post:
Monday Calendar
Columbia Law & Economics: Justin Wolfers, The Wharton School, University of Pennsylvania, "Did Unilateral Divorce Laws Raise Divorce Rates? A Reconciliation and New Results" Boston College School of Law: Dorothy A. Brown, Professor of Law, Alumni Faculty Fellow and Director of the Frances Lewis Law Center, Washington & Lee University School of Law, "The Ownership Society and Private Accounts" George Mason Law: Adam Mossoff, Michigan State University College of Law, “Who Cares What Thomas Jefferson Thought About Patents: Reconsidering the Patent 'Privilege' in Historical Context” Georgetown Environmental Research Workshop: Professor Michael Vandenbergh, Vanderbilt University School of Law, "The Private Life of Public Law" Hofstra Law: Timothy Zick, St. John’s University School of Law, “Property, Place, and Public Discourse” Aristotelian Society (London): Kinch Hoekstra, The End of Philosophy (The Case of Hobbes). NYU Law: Chris Sanchirico. Ohio State Law: Jennifer Wriggins, University of Maine, The Value of Injury: Race, Gender, Torts (1900-1950) University of Alabama Law: Austin Sarat, Amherst College (rescheduled from Aug. 31) What Happened to Mercy? On the Paradox of Sovereign Prerogative in Capital Cases. Oxford Centre for Socio-Legal Studies: Jeanne Flavin, Security, Citizenship and the Law: regulating boundaries: Regulating poor women's reproduction in the United States Oxford Clarendon Law Lectures: Stephen Cretney, Homosexuality: from "odious crime" to the love that dares speak its name UCLA Law: Professor Richard Steinberg, UCLA School of Law, The Formation and Transformation of Trading States in Poor Countries Vanderbilt Law & Business: James Cox, Duke University School of Law, "Empirically Reassessing the Lead Plaintiff Provision: Is the Experiment Paying Off?" University of Texas Law: Bob Rasmussen, Vanderbilt University, Private Debt and the Missing Lever of Corporate Governance |