Legal Theory Blog

Cserne on Consequentialist Arguments & Law and Economics

Péter Cserne (Tilburg Law and Economics Center) has posted Consequence-Based Arguments in Legal Reasoning: A Jurisprudential Preface to Law and Economics on SSRN. Here is the abstract:

One of the persistent problems surrounding the discipline of law and economics is the role of economic arguments in legal reasoning. The problem has been extensively discussed in the legal literature but has not been ultimately solved. This paper is a contribution to this discussion. The argument goes as follows. First, I argue that insights from law and economics, to the extent that they claim to be directly relevant for legal reasoning, should carry a jurisprudential preface that states that this very relevance is limited and conditional. Second, I introduce the concept of consequencebased reasoning and show that the typical normative claims of law and economics based on economic efficiency can be interpreted as consequence-based arguments of a special kind. Third, in the analytical core of the paper, the conceivability, feasibility and desirability of the judicial appreciation of general social consequences of legal decisions is considered. Referring to the philosophical, jurisprudential and institutional dimensions of the issue I argue that in a modern constitutional democracy the scope of consequence-based judicial reasoning is limited mainly by the expertise of courts. A more general implication of this analysis is that the impact of law and economics scholarship on law can only be understood through a close look at legal reasoning in general and consequence-based arguments in particular.

Taking off from the well-known Patterson-Craswell debate, this is quite interesting & recommended.

Fellowship Announcement: Global Justice Post Doctoral Fellowships at Stanford

Stanford University

The Center for Ethics in Society / Program on Global Justice Post Doctoral Fellowships

This fellowship program is run jointly by The Center for Ethics in Society and the Program on Global Justice. For 2011-2012, we seek up to four post doctoral fellows. We welcome candidates with substantial normative research interests from diverse backgrounds including philosophy, the social sciences, and professional schools. We are especially interested in candidates with research interests in international topics, including human rights, immigration, and environmental justice, but we welcome all applicants with strong normative interests that have some practical implications. Fellows will teach one class, participate in the Political Theory and Global Justice Workshops, interact with undergraduates in the Ethics in Society program and help in developing an inter-disciplinary ethics community across the campus.

Appointment is for one year, but may be renewed for an additional year. Applicants must have their doctoral degree in hand no later than 30 days prior to the appointment start date and be no more than 3 years from the awarding of the degree.

Stanford University is an equal opportunity employer and is committed to increasing the diversity of its faculty. It welcomes applications from women and members of minority groups, as well as others who would bring additional dimensions to the university's research and teaching missions. Salary is competitive.

DEADLINE: We are moving to an online application system and will no longer be accepting hard copy applications. The online system will be ready later this year and as we near the end of the testing phase (towards the end of Fall quarter), we will post specific information about the application process. Please note that the application (i.e., a CV, three references, and a writing sample of no more than 25 pages) deadline is January 12, 2011 (5:00pm Pacific Standard Time).

For inquiries, please contact Joan Berry at joanberry@stanford.edu.

Ginsburg, Melton, & Elkins on Evasion of Executive Term Limits

Tom Ginsburg , James Melton and Zachary Elkins (University of Chicago Law School, IMT Lucca Institute for Advanced Studies, and University of Texas at Austin) have posted On the Evasion of Executive Term Limits (William and Mary Law Review, Forthcoming) on SSRN. Here is the abstract:

Executive term limits are pre-commitments through which the polity restricts its ability to retain a popular executive down the road. In recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This article reviews the normative debate over term limits and identifies the key claims of proponents and opponents. It introduces the idea of characterizing term limits as a variety of default rule to be overcome if sufficient political support is apparent. It then turns to the historical evidence in order to assess the probability of attempts (both successful and unsuccessful) to evade term limits. It finds that, notwithstanding some high profile cases, term limits are observed with remarkable frequency. The final section considers alternative institutional designs that might accomplish some of the goals of term limits, but finds that none is likely to provide a perfect substitute. Term limits have the advantage of clarity, making them relatively easy constitutional rules to enforce, and they should be considered an effective part of the arsenal of democratic institutions.

Highly recommended.

Heymann on Beebe on IP & Sumptuary Laws (Updated: And Collins on Beebe)

Check Laura Heymann's review of Barton Beebe, Intellectual Property and the Sumptuary Code, 123 Harv. L. Rev 810 (2010) is available on Jotwell.

Update: And Kevin Collins also has a Jotwell review.

May on Constitutional Theory & Environmental Protection

James May (Widener University - School of Law) has posted New and Emerging Constitutional Theories and the Future of Environmental Protection (Environmental Law Reporter, Vol. 40, 2010) on SSRN. Here is the abstract:

This paper is adapted from remarks at the Berkeley/Georgetown/Environmental Law Institute-sponsored symposium on Citizens, Courts and the Constitution, February, 2010. The paper outlines the landscape at the intersection of constitutional and environmental law in general and the political question doctrine in particular. It raises questions that challenge constitutional order as it applies to environmental protection along largely structural dimensions of the horizontal (separation of powers), the vertical (federalism), and the elliptical (individual rights). The paper observes that constitutional issues occupy center stage in federal and state efforts to protect land, air, water, species, and habitat, including most often standing, sovereign immunity, takings and due process, and with increasing frequency, preemption and federalism. It then examines new and emerging issues, such as the use of the General Welfare and Treaty Clauses. It then evaluates recent applications of the political question doctrine to stop judicial review in climate cases involving common law.

Conference Announcement: Sandel's "Justice: What's the Right Thing To Do?" at Boston University

Boston University School of Law is pleased to announce the Annual Distinguished Lecture

 

Justice: What’s the Right Thing To Do?

 

A Public Lecture and Symposium on Michael J. Sandel’s Recent Book

 

October 14, 2010

Boston University School of Law

 

Public Lecture: 12:30 to 2:00

Book Symposium: 2:30 to 6:00

 

Professor Michael J. Sandel will give the annual Boston University School of Law Distinguished Lecture concerning his recent book, Justice: What’s the Right Thing To Do?, followed by a symposium on the book. The symposium will feature commentators in law, philosophy, and political science along with a response by Professor Sandel. Boston University Law Review will publish the lecture, commentaries, and response.

 

Michael J. Sandel is the Anne T. and Robert M. Bass Professor of Government at Harvard University, where he also teaches in the Law School. He is widely regarded as our nation’s leading civic republican political and constitutional theorist: his work focuses on citizenship, what we owe one another, and what way(s) of life a good society should promote. He is the author of Liberalism and the Limits of Justice (Cambridge University Press, 1982, 2^nd edition, 1998), Democracy’s Discontent: America in Search of a Public Philosophy (Harvard University Press, 1996), Public Philosophy: Essays on Morality in Politics (Harvard University Press, 2005), and The Case against Perfection: Ethics in the Age of Genetic Engineering (Harvard University Press, 2007). A public philosopher, he also has published articles in The Atlantic Monthly, The New Republic, and The New York Times. A renowned teacher, Professor Sandel’s  famous course at Harvard, Justice, regularly enrolls nearly 1000 students and is now available around the world through webstreaming, podcasting, and a public television series (see http://justiceharvard.org/). In addition, he teaches “Markets, Morals, and the Law,” “Ethics and Biotechnology,” and “Globalization and Its Discontents.” From 2002 to 2005, Sandel served on the President’s Council on Bioethics, a national body appointed by the President to examine the ethical implications of new biomedical technologies.

 

 

Boston University Law Review Lecture (Barristers Hall, 12:30-2:00)

 

            Welcome: Dean Maureen O’Rourke, BU School of Law

 

            Introduction: Associate Dean James Fleming, BU School of Law

 

            Lecture: Professor Michael J. Sandel, Harvard University

 

Book Symposium (Barristers Hall, 2:30-6:00)

 

            Panel 1 (2:30-3:30)

 

                        James Fleming and Linda McClain, BU School of Law

 

                        Gary Lawson, BU School of Law

 

            Panel 2 (3:45-4:45)

 

                        Hugh Baxter, BU School of Law and Department of Philosophy

 

                        Anna di Robilant, BU School of Law

 

            Panel 3 (5:00-6:00)

 

                        David Roochnik, BU Department of Philosophy

 

                        Judith Swanson, BU Department of Political Science

 

            Reception (6:00)

 

All – including not only professors, visiting scholars, law students, graduate students, and undergraduates but also alumni and members of the general public – are welcome to attend. There is no registration fee, but if you plan to attend, please RSVP to Andrea Larsen Rice, ajrice@bu.edu. If you have academic questions about the program, please contact Professor James Fleming, jfleming@bu.edu.

Berman on Legal Pluralism & Normative Legal Theory

Paul Schiff Berman (Sandra Day O'Connor College of Law, Arizona State University) has posted Towards a Jurisprudence of Hybridity (Utah Law Review, No. 1, 2010) on SSRN. Here is the abstract:

Debates about non-state normative communities often devolve into clashes between two polarized positions. On the one hand, we see the desire to eradicate difference through forced obeisance to a single overarching state norm. On the other, we see claims of complete autonomy for non-state lawmaking, as if such non-state communities could plausibly exist in isolation from the communities that both surround and intersect them.

Neither of these positions takes seriously the importance of engagement and dialogue across difference. Navigating difference doesn’t require either assimilation or separation; it requires negotiation. Legal pluralists have long charted this process of negotiation, noting, for example, that colonial legal systems did not eradicate indigenous systems (even when they tried to). Instead, there was a layering and intermingling of systems. And, just as important, actors strategically used the variety of fora to gain leverage and make their voices heard.

But legal pluralists have usually stopped at the descriptive. Thus, while they have catalogued the myriad ways in which state and non-state lawmaking interact, they have not taken the next step and attempted to articulate the normative jurisprudence that might flow from these observations. After all, it is one thing to say that as a descriptive matter interactions among legal and quasi-legal systems operating in the same social field inevitably occur; it is quite another to argue (as I attempt to do here) that such messy interactivity is actually a potentially desirable feature to build into legal and political systems.

I call this messy interactivity a jurisprudence of hybridity, and I argue that such a jurisprudence may actually be preferable to either a hierarchical jurisprudence whereby the hegemonic state imposes a universal norm, or a separatist jurisprudence whereby non-state communities attempt to maintain complete autonomy. First, such a jurisprudence acknowledges the reality that people hold multiple community affiliations, rather than dissolving that multiplicity into either universality or separatism. Second, developing procedural mechanisms, institutions, or discursive practices that acknowledge hybridity helps to ensure that multiple communities are at least taken seriously and given a voice. Third, providing space for multiple communities may result in better substantive decisions because there is more space for variations and experimentation.

In this Essay, I start by referencing work of sociologists and political theorists analyzing interpersonal and societal communication, and I contrast a vision whereby difference is overcome by assuming commonality with one in which “otherness” is seen as an inevitable part of human interaction. I then turn to law and survey three different procedural mechanisms that are or could be examples of a jurisprudence of hybridity with regard to non-state communities. First, I examine the idea of building margins of appreciation into constitutional jurisprudence to allow some scope for local and non-state community variation. Second, I explore the possibility that limited autonomy or participation regimes can help ensure some scope for non-state norms. And third, I suggest that thinking of non-state norms through the prism of conflict of laws doctrines — jurisdiction, choice of law, and recognition of judgments — might be preferable to the more mechanistic ways in which clashes between state and nonstate norms are often judged.

An interesting take on an important topic. Highly recommended.

Book Announcement: Becoming a Law Professor by Denning, McCormick, & Lipshaw

Becoming a Law Professor: A Candidate's Guide by Brannon Denning, Marcia McCormick, & Jeffrey Lipshaw is available for preorder on the ABA website.  My foreword is available for download on SSRN now.

Call for Papers: Batson v. Kentucky at Iowa

CALL FOR PAPERS:  For a proposed symposium  to mark the 25th anniversary of the United States Supreme Court’s landmark opinion in Batson v. Kentucky (1986), the University of Iowa College of Law invites submissions. The symposium is prompted by a need for reflection upon what a quarter-century of experience with the revolutionary constitutional restrictions that Batson and its progeny have imposed on peremptory jury challenges means for the criminal justice system. Submitted work should be prompted by the Batson doctrine (its impact, consequences and implications for the future) or, more broadly, by other concerns regarding the theory and function of the peremptory challenge.

Further details here.

Freeman on Sen on Justice

Samuel Freeman's review of Amartya Sen's The Idea of Justice is available on the New York Review of Book's website--subscription required.  This is a must read if you are interested in distributive justice.