At Notre Dame Today
I'm at the the Roundtable on Steve Smith's Law's Quandary at Notre Dame today. I'm really looking forward to this. If you haven't yet read Steve Smith's book, please do! Smith is one of the best writer's in the legal academy, and Law's Quandary explores some of the deepest issues in legal theory from Smith's unique and thoughtful perspective. Details for the roundtable are in today's calendar--scroll down.
This working paper is an early draft of two chapters (and the Preface and Bibliography) from a larger work on Contract Law (for the series, Cambridge Introductions to Philosophy and Law). The working paper covers the theory-focused part of the project. The paper analyzes what it means to have a theory of Contract, and what the criteria should be for evaluating such theories. The paper concludes that general or universal theories of Contract Law - at least those that have been presented to date (including economic theories of contract law, and deontological theories focusing on promising or autonomy) - cannot be justified, and we must seek instead to construct a theory that focuses on a particular legal system (or small group of legal systems), and that emphasizes the variety of principles and approaches within Contract Law, rather than seeking to find or impose a unity that does not exist.
In the course of the argument, the paper also touches on the role of history in explaining legal doctrine, voluntariness in contract formation, the moral obligation to keep contracts, and the relationship between rights and remedies.
Gustav Radbruch is well known for a “formula” that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East German laws in the post-unification German courts. More recently, Robert Alexy has defended a version of Radbruch’s formula, offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch’s formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy claim that their positions are incompatible with legal positivism, and therefore count as a rejection (and perhaps, refutation) of it.
This paper, presented at a Conference on the work of Gustav Radbruch, looks at Radbruch’s formula and Alexy’s version of it. It focuses not so much on the merit of the Radbruch-Alexy formula, as on its proper characterization, and its appropriate placement within the larger context of legal philosophy. THe particular focus is the methodological question of what Radbruch and Alexy’s formulations - and their strengths and weaknesses - can show us about the nature of theorizing about law.
Scandinavian legal realism was a movement of the early and middle decades of the 20th century, which paralleled the American legal realist movement, while presenting a more skeptical challenge to legal reasoning and discourse. The present paper was written for a collection on the work of Alf Ross, one of the most accessible of the Scandinavian realists. Ross's approach to jurisprudence was simultaneously simple and radical: he wanted to rid our thinking about law of all the mystifying references to abstract concepts and metaphysical entities. This paper offers a critical overview of Ross's views on legal rights, while also summarizing the critiques of Ross's view by the legal positivist H.L.A. Hart and the Scandinavian realist Karl Olivecrona.
University of Notre Dame: Law's Quandary, A Roundtable:
8:45 a.m. Introduction (Room 100-104, Center for Continuing Education)
9:00-10:15 a.m. Discussion: Larry Solum paper / Mark Tushnet comment
10:15-10:30 a.m. Break
10:30-11:45 a.m. Discussion: Brian Bix paper / Connie Rosati comment
11:45-12:00 p.m. Break
12:00-1:30 p.m. Lunch at the Morris Inn, in the Donors Room
1:30-2:45 p.m. Discussion: Joseph Vining paper / Patrick Brennan comment
2:45-3:00 p.m. Conclusion
3:00-4:00 p.m. Break
4:00-5:30 p.m. Lecture, “The Always Imminent Death of the Law” in the Law School Courtroom
5:30-6:00 p.m. Break
6:00 - evening Cocktails & Dinner (Eck Visitors’ Center)
University of Pennsylvania Philosophy: Amy Gutmann, University of Pennsylvania,The Lure of Extremism: Certainty and Single-mindedness
Villanova Law: Mary-Rose Papandrea, Boston College Law School
Oxford Institute of European and Comparative Law: French-English Conference: FORUM SHOPPING IN THE EUROPEAN JUDICIAL AREA
University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL: Law, Constitutions, and Rights: Local Utah Issues
State Senator Scott McCoy (Utah Senate District 2), "Gay Rights and the Utah Constitution: Interpreting Amendment 3"
Heidi McIntosh (Southern Utah Wilderness Society), "Democracy and the Right to Wilderness: The Utah Experience"
Brett Scharffs (Law, Brigham Young University), "We are All a Religious Minority: Implications of Acting as if We Really Believed this Truth"
moderated by Dean Robert Newman (College of Humanities, University of Utah)
William Bratton Georgetown University
Michael Carroll Villanova
Lawrence A. Cunningham Boston College
A. Michael Froomkin University of Miami
Herbert Hovenkamp University of Iowa
Scott Kieff Washington University in St. Louis
Mark Lemley Stanford University
Joseph Liu Boston College
Frank Partnoy University of San Diego
Pam Samuelson University of California—Berkeley
Sidney Shapiro Wake Forest University
Greg Vetter University of Houston
Alfred Yen Boston College
Gerogetown Law & Economics: Nancy Staudt, Washington University School of Law (St. Louis)
Florida State Law: Matthew McCubbins, University of California, San Diego. Joint workshop with FSU Political Science Department.
Cornell Law: Jeremy A. Blumenthal, "Emotional Paternalism"
University of Illinois College of Law, Criminal Law Colloquium: Jeannine Bell, Indiana University, Fattening a Frog to Feed a Snake: The (In)Effectiveness of Torture
University of Illinois Law: Susanna Blumenthal (Assistant Professor of Law at the University of Michigan Law School, "The Default Legal Person"
Yale Law Economics & Organization Workshop: Professor Gillian Hadfield, USC Law, The Quality of Law in Civil Code and Common Law Regimes: Judicial Incentives, Legal Human Capital and the Evolution of Law
University of Michigan Law & Economics: Paul Heald, Georgia, The Problem of Social Cost in a Genetically Modified Age
University of Arizona James E. Rogers College of Law: Professor Margo Bagley, Emory Univ. School of Law; Topic: "Academic Discourse and Proprietary Rights: Putting Patents in Their Proper Place."
University of Cincinnati Law: Adam Feibelman, Contract, Priority, and Odious Debt
Northwestern Advanced Topics in Taxation: Kyle D. Logue, Professor of Law, University of Michigan, "Deterring Abusive Tax Avoidance: Optimal Enforcement When the Law is Uncertain"
University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL:
States' Rights, Minority Protections, and the Constitution
Hon. Christine Durham, (Chief Justice, Utah Supreme Court), "State Constitutions and Affirmative Rights"
Leslie Francis (Philosophy, and Law, University of Utah), "Federalism and Human Rights: An Unstable Combination?"
Brenda Cossman (Law, University of Toronto), "Judicial Activism, Comparative Constitutionalism, and the Trope of Same Sex Marriage"
moderated by Martha Ertman (Law, University of Utah)
Human Rights, Law, and Constitutionalism: Transnational Resonances
James Gibson, (Political Science, Washington University), "The Rule of Law as an Impediment to Tyranny?"
Erika George (Law, University of Utah), "Constitutional Law Crossing Borders: The
Role of International and Foreign Law in U.S. Supreme Court Jurisprudence"
Linda Kerber (History, University of Iowa), "Thoughts on Statelessness in American History"
Liz Borgwardt (History, University of Utah), ""The Four Freedoms, the Atlantic Charter, and the Reinvigoration of Rights Discourse in the World War II Era"
moderated by President Michael Young (University of Utah)
University of Utah Law: Hon. Margaret H. Marshall, Chief Justice, Massachusetts Supreme Judicial Court, Tension and Intention: The American Constitutions and the Shaping of Democracies Abroad
Loyola, Los Angeles: Jeff Atik, Professor of Law, Loyola Law School, Embracing Price Discrimination: TRIPS and Parallel Trade in Phamaceuticals
George Mason Law: Dean Lueck, University of Arizona Department of Economics, The Organization and Behavior of Bureaucracy: The Case of the Wildlife Agency
Fordham Law: Deborah W. Denno, Professor of Law, Fordham University School of Law, "Mental State Across Ten Centuries: 1235
Brooklyn Law School: Margaret Brinig, Iowa, Standards for Licensing and Driving
Boston University Law: Nancy Moore, "Mens Rea Standards in Lawyer Disciplinary Codes"
Conference Announcement: Dual Process Theories of Rationality at Cambridge
IN TWO MINDS: DUAL-PROCESS THEORIES OF REASONING AND RATIONALITY
The Open University UK, 5-7 July 2006, at Fitzwilliam College, Cambridge
An interdisciplinary conference on reasoning and rationality, organized
by the Department of Philosophy at the Open University, in association
with the University's Mind, Meaning and Rationality research group.
There has been growing interest recently in so-called 'dual-process'
theories of reasoning and rationality. Such theories postulate two
distinct systems (or sets of systems) underlying human reasoning --
typically distinguishing an evolutionarily old system ('System 1') that
is associative, automatic, unconscious, parallel, and fast, and a more
recent, distinctively human system ('System 2') that is rule-based,
controlled, conscious, serial, and slow. On some views, System 1
processes are held to be innate and to employ heuristics which evolved
to solve specific adaptive problems, whereas System 2 processes are
taken to be learned, flexible, and responsive to rational norms.
Widespread cognitive illusions, such as the conjunction fallacy, can be
ascribed to System 1, while superior individual performances can be
explained as the result of System 2 processes overriding System 1
responses. Some writers also suggest that the two systems are associated
with different conceptions of rationality. This three-day
interdisciplinary conference will for the first time bring together the
leading researchers on dual-processes theory in order explore the
motivations for different dual-process theories, the connections and
contrasts between them, and their implications for various disciplines.
The focus will be on theoretical aspects of dual-process theory, rather
than purely experimental work, and there will be special emphasis on the
philosophical applications of work in this area.
The following people have agreed to speak at the conference: Peter
Carruthers (University of Maryland); Nick Chater (University of
Warwick); Zoltan Dienes (University of Sussex) Jonathan Evans
(University of Plymouth); Keith Frankish (Open University); Vinod Goel
(York University, Toronto); Paul Klaczynski (Pennsylvania State
University); Matthew Lieberman (UCLA); Mike Oaksford (Birkbeck College
London); David Over (University of Sunderland); Richard Samuels (King's
College London); Steven Sloman (Brown University); Dan Sperber (Centre
National de la Recherche Scientifique, Paris); Keith Stanovich
(University of Toronto), and others.
For details of how to register for the conference, please go the
conference website at www.open.ac.uk/arts/dualprocess
ORGANIZER AND SPONSORS
The conference is organized by the Philosophy Department of the Open
University in conjunction with the University's Mind, Meaning and
Rationality Group. The organizing committee consists of Keith Frankish
and Carolyn Price of the Open University and Jonathan Evans of the
University of Plymouth. The organizers gratefully acknowledge the
generous support of the Mind Association, the Economic and Social
Research Council, and the Open University.
Mail: Dual-process conference, The Departmental Co-ordinator C/o
Department of Philosophy, The Open University, Walton Hall, Milton
Keynes, MK7 6AA, UK
University of Pennsylvania, Seventh Annual Bienniel Seybert Lectures: T.M. Scanlon, The Ethics of Blame
William Mitchell Law: Robert Delahunty, St. Thomas Law, This call may be monitored: Is NSA wiretappling legal?
NYU Legal History: Amalia Kessler, Assistant Professor, Stanford Law School, “A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France”
Opinio Juris Reception at ASIL
I'm passing along the following:
For those of you who will be at the Annual Meeting of the American WSociety of International Law (or just in DC), I wanted to let you know that Opinio Juris and the ASIL will sponsor a reception on Thursday evening, March 30th, from 7:30 to 8:30 in the Longworth Room of the Fairmont Hotel, 2401 M Street, NW (the location of the Annual Meeting). Besides wine and cheese, we will also have an informal discussion on international law and blogging. We expect that bloggers from other law blogs will be joining us as well. We hope this will be a chance for many of us who know each other via the Internet to actually get together in person. Please note that you do not need to be registered for the ASIL Annual Meeting in order to attend this reception.
FYI, following is the description from the Annual Meeting program. We hope to see you there.
Opinio Juris Wine and Cheese Reception on International Law Blogging
Thursday, March 30th, 7:30–8:30 pm
Join ASIL staff and the contributors of the international law blog Opinio Juris (www.opiniojuris.org) for an open and informal discussion about current trends in international law blogging. Established in 2005, Opinio Juris now includes six permanent law professor contributors (Chris Borgen, Peggy McGuinness, Julian Ku, Roger Alford, Kevin Heller, and Duncan Hollis) and has over 15,000 visits per month. If you are a blogger, reader, or just curious about this new medium, please join us.
University of Pennsylvania, Seventh Annual Bienniel Seybert Lectures: T.M. Scanlon, Blame and Freedom
University of Illinois College of Law: Amy Wax, Diverging Destinies: Economics, Behavior, and the Decline of Marriage
University of Texas: Érica Gorga (UT) "Knowledge Resources and Their Implications for the Theory of the Firm and Corporate Governance"
Georgetown Constitutional Law & Theory: Cristina Rodriguez (law, NYU) Language and Participation
University of North Dakota Law: John Washburn, Convener of the American Non-governmental Organizations Coalition of the International Criminal Court (AMICC),
“Genocide and Terrorism Attacked - The International Criminal Court at Work: Darfur, Congo, and Uganda”
Yale Legal History: MICHAEL KLARMAN, University of Virginia School of Law
"Brown and Lawrence (and Goodridge)"
Vanderbilt Law Faculty Workshop: Katherine Franke, Columbia University Law School, "Subjects of Freed-dom"
University of Texas Constitutional Studies Luncheon: Cindy Skach (Harvard)
University of Chicago Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, Crossing the Punitive-Compensatory Divide
University College, London, Faculty of Laws, The Constitutional Law Group: ‘Reforming and Reorganising Tribunals’
Sir Robert Carnwath, Lord Justice of Appeal and Senior President of Tribunals Designate.
Genevra Richardson, Professor of Public Law at Kings College London, Member of the Council on Tribunals.
Cheryl Saunders, Arthur Goodhart Visiting Professor of Legal Science (University of Cambridge), Professor of Law (University of Melbourne), President of the International Association of Constitutional Law, former President of the Administrative Review Council (Australia)
Ohio State Law: Alan C. Michaels, Ohio State, Reasonable Victims
Marquette Law: Laurel Oates, Reading Skills & Law School Performance
University of Houston Law Center, Third Annual Baker Botts Lecture: The Honorable Arthur J Gajarsa
Georgetown Law Faculty Workshop: James Forman
The Politics of Precedent on the U.S. Supreme Court offers an insightful and provocative analysis of the Supreme Court's most important task--shaping the law. Thomas Hansford and James Spriggs analyze a key aspect of legal change: the Court's interpretation or treatment of the precedents it has set in the past. Court decisions do not just resolve immediate disputes; they also set broader precedent. The meaning and scope of a precedent, however, can change significantly as the Court revisits it in future cases. The authors contend that these interpretations are driven by an interaction between policy goals and variations in the legal authoritativeness of precedent. From this premise, they build an explanation of the legal interpretation of precedent that yields novel predictions about the nature and timing of legal change.
After nearly twenty-five years on the bench, Justice Sandra Day O’Connor left the Supreme Court at the end of January 2006. There has been much discussion of Justice O’Connor’s decisions in areas such as federalism, the First Amendment’s Establishment Clause, and affirmative action, among other topics. But very little has been written about her important role in the development of federal constitutional law concerning the “right to die.”
This Essay seeks to fill this gap in the literature by exploring Justice O’Connor’s important concurring opinions in Cruzan and Glucksberg. I argue that these opinions created constitutional promises of a sort that remain unfulfilled as Justice O’Connor retires. I also explain why this need not have been the case while highlighting the real world consequences of the failure to live up to the promises.