Legal Theory Blog

Legal Theory Bookworm: "Constitutional Public Reason" by Sadurski

The Legal Theory Bookworm recommends Constitutional Public Reason by Wojciech Sadurski.  Here is a description:

Public reason, which urges that only laws based on principles reasonably agreeable to all those bound by them are legitimate, has rarely been applied to constitutional law, and never in a comparative way. This book aspires to fill that gap, by studying the use of public reason in different constitutional systems. In doing so, it studies public reason both as a normative idea - as a principle postulated for democratic constitutionalism, and as a descriptive account - as helping to understand many important doctrines in constitutional adjudication of some leading constitutional courts around the world, and also in the supranational sphere.

Constitutional Public Reason questions the performance of leading 'exemplars of public reasons', including the top courts of the United States, India, Canada, Australia, Germany, and South Africa, as well as the European Court of Human Rights. It also attempts to show how this performance can be improved in fields such as freedom of expression, non-establishment of religion, and anti-discrimination law. Ultimately, it finds that the best resonance between the ideal of public reason and constitutional interpretation is found in doctrines that locate the illegitimacy of laws in the wrongful motives (or purposes) pursued by legislators. Scrutinising motives is often as important as scrutinising consequences.

Legal Theory Bookworm: "Twilight of the American State by Schlag

The Legal Theory Bookworm recommends Twilight of the American State: An Essay by Pierre Schlag.  Here is the a description:

The sudden emergence of the Trump nation surprised nearly everyone, including journalists, pundits, political consultants, and academics. When Trump won in 2016, his ascendancy was widely viewed as a fluke. Yet time showed it was instead the rise of a movement—angry, militant, revanchist, and unabashedly authoritarian.

How did this happen? Twilight of the American State offers a sweeping exploration of how law and legal institutions helped prepare the grounds for this rebellious movement. The controversial argument is that, viewed as a legal matter, the American state is not just a liberal democracy, as most Americans believe. Rather, the American state is composed of an uneasy and unstable combination of different versions of the state—liberal democratic, administered, neoliberal, and dissociative. Each of these versions arose through its own law and legal institutions. Each emerged at different times historically. Each was prompted by deficits in the prior versions. Each has survived displacement by succeeding versions. All remain active in the contemporary moment—creating the political-legal dysfunction America confronts today.

Pierre Schlag maps out a big picture view of the tribulations of the American state. The book abjures conventional academic frameworks, sets aside prescriptions for quick fixes, dispenses with lamentations about polarization, and bypasses historical celebrations of the American Spirit.

And from the reviews:

“Pierre Schlag’s essay describes the development—or degeneration—of the American state from one animated by the principles of liberal democracy through the administered state to neoliberalism and now what he calls the dissociative state. Each state form generates tensions that it is unable to resolve, leaving us today facing the possibility that the authoritarian impulses that have grown out of frustration with the state’s failures will come to control a new state form. Schlag tells us that understanding how we got to where we are is the precondition for doing something about it, though he forgoes prescribing simple remedies. This is a bracing and—alas—somewhat depressing account of American constitutionalism today.”—Mark Tushnet, Harvard Law School

“This book is intentionally radical, and it makes an exciting and cutting-edge contribution in the fields of legal and political theory and history. It is beautifully written. Its intellectual contributions are major. Its distinctive voice is simultaneously personal, charming, and haunting. In short: it reads like Pierre Schlag.”—Mitchel Lasser, Jack G. Clarke Professor of Law and Director of Graduate Studies, Cornell Law School

Legal Theory Bookworm: "The Oral History of Guido Calabresi" by Silber

The Legal Theory Bookworm recommends Outside In: The Oral History of Guido Calabresi
by Norman I. Silber.  Here is a description:

Guido Calabresi is an extraordinary person. His family, of Jewish heritage, occupied a secure and centuries-old position near the top of Italian society-- until the rise of fascism. Guido's parents fled to America on the eve of the war in Europe, with their children, to avoid political and religious persecution. They arrived without money or social standing. Guido's talents and good fortune helped him to thrive at several elite American institutions and to become a leading legal scholar, teacher, law school dean, and judge. He would receive prizes and awards for his contributions; to legal theory, especially for opening up the area of 'law and economics'; for contributions to the modern transformation of American law schools, as the Dean of Yale Law School; and for advancing the development of law including through progressive decisions as a member of the United States Court of Appeals for the Second Circuit.

Outside In is a unique sort of account spread across two volumes and written in Guido's remarkable voice based on recordings that which took place over a decade. It is a unique amalgam of oral history and biography, with supplementary commentaries to explain, elaborate, validate, and interpret and situate the personal narrative within its larger historical context.

And from the reviews:

"Outside In is a unique sort of account, written in Guido's remarkable voice based on recordings that which took place over a decade. The book is a unique amalgam of oral history and biography, with supplementary commentaries to explain, elaborate, validate, and interpret and situate the personal narrative within its larger historical context." -- Paul Horwitz , PrawfsBlawg

Legal Theory Bookworm: "Reasonableness and Risk" by Keating

The Legal Theory Bookworm recommends Reasonableness and Risk: Right and Responsibility in the Law of Torts by Gregory C. Keating.  Here is a description:

The law of torts is concerned with what we owe to one another in the way of obligations not to interfere with, or impair, each other's urgent interests as we go about our lives in civil society. The most influential contemporary account of tort law treats tort liability rules as shadow prices. Their role is not to vindicate claimants' own rights and interests, but to induce us to injure one another only when it is economically efficient to do so. The chief competitors to the economic view take tort law's importance to lie primarily in the duties of repair that it imposes on wrongdoers, or in the powers of recourse that it confers on the victims of tortious wrongs.

This book argues that tort law's primary obligations address a domain of basic justice and that its rhetoric of reasonableness implies a distinctive morality of mutual right and responsibility. Modern tort law is preoccupied with, and responds to, the special moral significance of harm. That special significance sometimes justifies standards of precaution more stringent than those prescribed by efficiency. This book also examines the regulatory and administrative institutions with which the common law of torts cooperates and competes, treating these as part of a continuum of institutions that instantiate the primary role pursued by modern tort law - that is, to protect our physical integrity and other essential interests from impairment and interference by others, and to do so terms that all those affected might accept as justifiable.

It is a great pleasure to recommend this important book by Keating!

Legal Theory Bookworm: "Fool Proof" by Wilkinson-Ryan

The Legal Theory Bookworm recommends Fool Proof: How Fear of Playing the Sucker Shapes Our Selves and the Social Order―and What We Can Do About It by Tess Wilkinson-Ryan.  Here is a description:

The fear of playing the fool is a universal psychological phenomenon and an underappreciated driver of human behavior; in the spirit of Malcolm Gladwell’s Blink, Dan Ariely’s Predictably Irrational, and Susan Cain’s Quiet, Fool Proof tracks the implications of the sucker construct from personal choices to cultural conflict, ultimately charting an unexpected and empowering path forward.

In the American moral vernacular, we have a whole thesaurus for victims of exploitation. They are suckers (born every minute), fools (not suffered gladly), dupes, marks, chumps, pawns, and losers. Fool me once, shame on you; fool me twice, shame on me. Cultural stories about suckers abound too: the Trojan Horse, the Boy Who Cried Wolf, the Emperor’s New Clothes, even Hansel and Gretel. If you believe that, I have a bridge to sell you. Don’t go out with him; he only wants one thing. The fear of playing the fool is not just a descriptive fact; it is a prescriptive theme: Don’t let that be you.

Most of us are constantly navigating two sets of imperatives: how to be successful and how to be good. The fear of being suckered whispers that you can’t do both, operating as a quiet caution against leaps of faith and acts of altruism. University of Pennsylvania law professor and moral psychologist Tess Wilkinson-Ryan brings evidence from studies in psychology, sociology, and economics to show how the sucker construct shapes, and distorts, human decision-making.

Fool Proof offers the first in-depth analysis of the sucker’s game as implicit worldview, drawing evidence everywhere from grocery shopping to international trade deals, from road rage to #MeToo. Offering real-world puzzles and stories, Wilkinson-Ryan explores what kinds of hustles feel like scams and which ones feel like business as usual, who gets pegged as suckers and who gets lauded as saints. She takes deep dives into areas like the psychology of stereotyping, the history of ethnic slurs, and the economics of the family—and shows how the threat of being suckered is deployed to perpetuate social and economic hierarchies.

Ultimately, Fool Proof argues that the goal is not so much to spot the con as to renegotiate its meaning. The fear of being suckered can be weaponized to disrupt cooperation and trust, but it can also be defused and reframed to make space for moral agency and social progress. Facing the fear of being suckered head-on means deciding for ourselves what risks to take, what relationships to invest in, when to share, and when to protest—drafting a new template for how to live with integrity in a sucker’s world.

And from the reviews:

"Wool is nice. So why do we just hate having it pulled over our eyes? Why would we rather be poor than cheated, mistaken than misled? Why would we rather be corpses than chumps? Smart, beautifully written, and grounded in science, Fool Proof explains how our aversion to being duped can make us the biggest suckers of all time. This book is a gem. Trust me. Would I lie to you?" — Daniel Gilbert, Harvard University, best-selling author of Stumbling on Happiness

“Fascinating, highly original, and terrific. Wilkinson-Ryan gets at the heart of a fundamental problem - and greatly illuminates law, policy, and human life in the process." — Cass R. Sunstein, Harvard University, co-author of The New York Times bestseller Nudge: Improving Decisions About Health, Wealth, and Happiness

"The fear of playing the sucker is so engrained in our psyches that it seems to be instinctual. But, as Fool Proof brilliantly reveals, exploitation narratives are profoundly shaped by racist and sexist stereotypes and frequently weaponized to bolster an inequitable social order. Contracts expert, moral psychologist, and mother of two, Tess Wilkinson-Ryan draws on a fascinating trove of empirical research and familiar experiences to question the tradeoff between avoiding scams and caring for each other—and to illuminate a path to greater moral integrity." — Dorothy Roberts, University of Pennsylvania, author of Killing the Black Body: Race, Reproduction, and the Meaning of Liberty

“Thought-provoking and delightful on every page, Fool Proof is one of those books every curious reader will find themselves in. It reads like a fascinating conversation with someone brilliant you just met at a dinner party. With expertise and enthusiasm to burn, Wilkinson-Ryan has crafted a book I won’t be cooling off from anytime soon.”  — Amanda Montell, author of Cultish and Wordslut

Legal Theory Bookworm: "Climate Liberalism," edited by Adler

The Legal Theory Bookworm recommends Climate Liberalism: Perspectives on Liberty, Property and Pollution, edited by Jonathan H. Adler.  Here is a description:

Climate Liberalism examines the potential and limitations of classical-liberal approaches to pollution control and climate change. Some successful environmental strategies, such as the use of catch-shares for fisheries, instream water rights, and tradable emission permits, draw heavily upon the classical liberal intellectual tradition and its emphasis on property rights and competitive markets. This intellectual tradition has been less helpful, to date, in the development or design of climate change policies.

Climate Liberalism aims to help fill the gap in the academic literature examining the extent to which classical-liberal principles, including an emphasis on property rights, decentralized authority and dynamic markets, can inform the debate over climate-change policies. The contributors in this book approach the topic from a range of perspectives and represent multiple academic disciplines. Chapters consider the role of property rights and common-law legal systems in controlling pollution, the extent to which competitive markets backed by legal rules encourage risk minimization and adaptation, and how to identify the sorts of policy interventions that may help address climate change in ways that are consistent with liberal values.

And from the reviews:

“Political philosophies that put a lot of weight on freedom and property rights have a hard time grappling with the problem of pollution. How can we reconcile the inviolability of the individual with the ubiquity of negative externalities? The essays in this volume represent the most promising and sophisticated effort yet to come to grips with this problem. Climate Liberalism is essential reading on one of the most theoretically interesting and practically important issues of our time.” (Matt Zwolinski,Professor of Philosophy, University of San Diego, Author of The Individualists: Radicals, Reactionaries, and the Struggle for the Soul of Libertarianism)

“Climate Liberalism captures a valuable and overdue conversation about classical liberal thinking and the seemingly intractable problem of climate change. Much of what is written about domestic and international climate policy boils down to nihilist political considerations, and lacks any theoretical or deontological foundation. This volume is a vital step towards filling that void.” (Shi-Ling Hsu, D’Alemberte Professor, Florida State University College of Law, Author of Capitalism and the Environment)

“Classical liberal scholarship has, to some extent, always been a matter of circling the wagons and defending classical liberalism per se. But classical liberalism also is a way of grappling with real practical problems, using the legal and policy tools we actually have. Classical liberal scholars have a history of working with, rather than ignoring, the most basic of all political facts: namely, people decide for themselves, not only how to pursue their own interests but also how to do what they think is right.

“Climate change is a problem of external cost, well-understood by classical liberals. It is also the same basic political issue that classical liberalism has a history of being well-positioned to address. Yet, the scale of the threat that climate change poses seems unprecedented. So, while we cannot afford to ignore the lessons of history, neither can we afford to deny that ‘it might be different this time.’ Time will tell, but this volume furthers the conversation with one remarkable essay after another. (David Schmidtz, Presidential Chair of Moral Science, West Virginia University)

“This valuable collection of essays examines how classical liberal institutional frameworks rooted in property rights, decentralization, and the rule of law can inform climate policy approaches. Reflecting a range of expertise from law, political economy, and philosophy, these thoughtful essays grapple with the challenges that large-scale environmental questions pose to classical liberalism and analyze how classical liberal institutions can play a constructive role in climate policy. Climate Liberalism is a welcome contribution to ongoing climate and energy policy research and debate.” (L. Lynne Kiesling, Director, Institute for Regulatory Law & Economics, Research Professor, College of Engineering, Design & Computing, University of Colorado, Denver)

Legal Theory Bookworm: "Bias: A Philosophical Study" by Kelly

The Legal Theory Bookworm recommends Bias: A Philosophical Study by Thomas Kelly.  Here is a description:

Bias seems to be everywhere. Biased media outlets decisively influence the political opinions and votes of millions of people. Discriminatory policies favor some racial groups over others. We tend to judge ourselves more favorably than our peers, and more favorably than the evidence warrants. But what is it, exactly, for a person or thing to be biased?

In Bias: A Philosophical Study, Thomas Kelly explores a number of foundational questions about the nature of bias and our practices of attributing it. He develops a general framework for thinking about bias, the norm theoretic account, and shows how that framework illuminates much that we say and think about bias in both everyday life and the sciences. He argues provocatively that both morality and rationality sometimes require us to be biased; that groups of people can be biased even if none of their members are; that we are often rationally required to believe that those who disagree with us are biased, even if we know absolutely nothing about why they believe as they do or about their psychologies; and that whether someone counts as biased is often a relative matter. He defends the possibility of what he calls 'biased knowing' and argues that the phenomenon has significant implications for both philosophical methodology and scepticism.

A central aim of the book is to expand the range of issues that have thus far been considered under the heading 'the philosophy of bias' by putting new theoretical questions on the table and proposing bold answers that can serve as starting points for future inquiry.

Legal Theory Bookworm: "Legitimation by Constitution" by Michelman & Ferrara

The Legal Theory Bookworm recommends Legitimation by Constitution: A Dialogue on Political Liberalism by Frank Michelman & Alessandro Ferrara.  Here is a description:

"Legitimation by Constitution" is the phrase, coined by distinguished authors Frank Michelman and Alessandro Ferrara, for a key idea in Rawlsian political liberalism of a reliance on a dualist form of democracy-a subjection of ground-level lawmaking to the constraints of a higher-law constitution that most citizens could find acceptable as a framework for their politics-as a response to the problem of maintaining a liberally just, stable, and oppression-free democratic government in conditions of pluralist visionary conflict.

Legitimation by Constitution recalls, collects, and combines a series of exchanges over the years between Michelman and Ferrara, inspired by Rawls' encapsulation of this conception in his proposed liberal principle of legitimacy. From a shared standpoint of sympathetic identification with the political-liberal statement of the problem, for which legitimation by constitution is proposed as a solution, these exchanges consider the perceived difficulties arguably standing in the way of this proposal's fulfillment on terms consistent with political liberalism's defining ideas about political justification. The authors discuss the mysteries of a democratic constituent power; the tensions between government-by-the-people and government-by-consent; the challenges posed to concretization by judicial authorities of national constitutional law; and the magnification of these tensions and challenges under the lenses of ambition towards transnational legal ordering. These discussions engage with other leading contemporary theorists of liberal-democratic constitutionalism including Bruce Ackerman, Ronald Dworkin, and Jürgen Habermas.

Wow!!!

Legal Theory Bookworm: "The Routledge Handbook of Autonomy," edited by Colburn.

The Legal Theory Bookworm recommends The Routledge Handbook of Autonomy, edited by Ben Colburn.  Here is a description:

The question of autonomy is fundamental to understanding some of the most important questions and debates in contemporary political and moral life, from freedom of the individual, free will and decision-making to controversies surrounding medical ethics, human rights and the justifications for state intervention. It is also a crucial concept for understanding the development of liberalism.

The Routledge Handbook of Autonomy is a comprehensive survey and assessment of the key figures, debates and problems surrounding autonomy. Comprising over forty chapters by an international team of contributors, the Handbook is divided into five clear parts:

• • Autonomy through History
  • Foundations of Autonomy
  • Threats to Autonomy
  • The Significance of Autonomy
  • Autonomy in Application.

Within these sections, all the essential topics are addressed, making The Routledge Handbook of Autonomy an outstanding reference source for those in political philosophy, ethics, applied ethics and philosophy of law. It is also highly recommended reading for those in related subjects, such as politics, social policy and education.

And from the reviews:

'This is an invaluable volume, required reading for anyone interested in autonomy, its history as a concept, its applications, and its implications. Carefully planned and edited, with a set of outstanding contributors, not only is it a superb introduction to the debates surrounding autonomy, but it will shape those debates for a long time to come.' - Roger Crisp, University of Oxford, UK

'The notion of personal autonomy is captivating and perplexing in turn. It has centered discussions of justice, respect, community, and accountability but has been variously interpreted in these debates. Scholars whose work runs the gamut from Kantian moral theory to contemporary feminist analyses of oppression have claimed the ideal, often in ways that run counter to one another. This volume lends welcome precision to these many faces of autonomy, analyzing its meaning and the conditions for its realization in the many dimensions to which it is put to use.' - Marina Oshana, University of California, Davis, USA

'Autonomy is widely regarded as a core moral and political value, but philosophers understand it in bewilderingly different ways, and invoke it in a wide range of different contexts. This comprehensive collection both illustrates the variety and helps us see where people are talking past each other. The perfect place to start for anybody wanting to get a grip on this notoriously elusive ideal.' - Adam Swift, University College London, UK

'This is an invaluable volume, required reading for anyone interested in autonomy, its history as a concept, its applications, and its implications. Carefully planned and edited, with a set of outstanding contributors, not only is it a superb introduction to the debates surrounding autonomy, but it will shape those debates for a long time to come.' - Roger Crisp, University of Oxford, UK

'The notion of personal autonomy is captivating and perplexing in turn. It has centered on discussions of justice, respect, community, and accountability but has been variously interpreted in these debates. Scholars whose work runs the gamut from Kantian moral theory to contemporary feminist analyses of oppression have claimed the ideal, often in ways that run counter to one another. This volume lends welcome precision to these many faces of autonomy, analyzing its meaning and the conditions for its realization in the many dimensions to which it is put to use.' - Marina Oshana, University of California, Davis, USA

'Autonomy is widely regarded as a core moral and political value, but philosophers understand it in bewilderingly different ways, and invoke it in a wide range of different contexts. This comprehensive collection both illustrates the variety and helps us see where people are talking past each other. The perfect place to start for anybody wanting to get a grip on this notoriously elusive ideal.' - Adam Swift, University College London, UK

Legal Theory Bookworm: "Reciprocal Freedom" by Weinrib

The Legal Theory Bookworm recommends Reciprocal Freedom: Private Law and Public Right by Ernest J. Weinrib.  Here is a description:

Reciprocal Freedom elucidates the relationship between private law and the state, presenting reciprocal freedom as the normative idea underlying a legal order in which private law occupies a distinctive place. Weinrib develops a set of interconnected conceptions of private law, corrective justice, rights, ownership, the role of legal institutions, distributive justice, the relationship of constitutional rights to private law, and the rule of law.

The book is explicitly Kantian in inspiration; it presents a non-instrumental account of law that is geared to the juridical character of the modern liberal state. Combining legal and philosophical analysis, it offers a sequenced and legally informed argument for understanding law as necessary to our co-existence as free beings.