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Academic

Legal Theory Blog

Thoughts about current developments in normative legal theory and jurisprudence.
By Larry Solum

Post Frequency: 67.6/day

Last Entry: April 01, 2011 at 13:55:00

LaCroix on Federal Jurisdiction in the Early Supreme Court

Posted on March 02, 2010
Alison L. LaCroix (University of Chicago Law School) has posted Federalists, Federalism, and Federal Jurisdiction on SSRN. Here is the abstract: This Article provides a new interpretation of the origins of three central obsessions of federal-courts and constitutional-law scholarship: the...

Hawkins on Fringe Banking & Financial Distress

Posted on March 02, 2010
Jim Hawkins (University of Houston Law Center) has posted Regulating on the Fringe: Reexamining the Link Between Fringe Banking and Financial Distress (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract: Critics of fringe banking - products like payday...

Oman on Polygamy & Imperialism

Posted on March 02, 2010
Nathan B. Oman (William & Mary Law School) has posted Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism on SSRN. Here is the abstract: In 1879, the U.S. Supreme Court construed the Free Exercise...

Grimmelmann on Freiwald on Grimmelmann on Saving Facebook

Posted on March 02, 2010
James Grimmelmann (New York Law School) has posted Saving Facebook: A Response to Professor Freiwald (Iowa Law Review Bulletin, Vol. 95, No. 13) on SSRN. Here is the abstract: In this brief response to Professor Susan Freiwald's thoughtful comments on...

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Oral Argument in McDonald (with Updates)

Posted on March 02, 2010
The transcript is now available here. The first reaction from Lyle Dennison is up on ScotusBlog: The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment?s guarantee of ?due process,?...

Two Important Papers on the Privileges or Immunities Clause: Hamburger & Lash

Posted on March 01, 2010
On the eve of oral argument in McDonald v. City of Chicago (the case before the United States Supreme Court that raises the question whether the Second Amendment right to keep and bear arms applies to the states under either...

Oman on Contract Theory

Posted on March 01, 2010
Nathan B. Oman (William & Mary Law School) has posted Consent to Retaliation: A Civil Recourse Theory of Contractual Liability on SSRN. Here is the abstract: In the ancient Near East, contracts were often solemnized by hacking up a goat....

Balkin on Congressional Power to Enforce the Reconstruction Amendments

Posted on March 01, 2010
Jack M. Balkin (Yale University - Law School) has posted The Reconstruction Power on SSRN. Here is the abstract: This essay argues that modern doctrine has not been faithful to the text, history and structure of the Thirteenth, Fourteenth, and...

Dane on Constitutional Law & Religion

Posted on March 01, 2010
Perry Dane (Rutgers School of Law - Camden) has posted Constitutional Law and Religion (BLACKWELL COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, Dennis Patterson, ed., Blackwell, 2010) on SSRN. Here is the abstract: This essay on law and religion...

DeCoste on Bruker v. Marcovitz

Posted on March 01, 2010
Frederick C. DeCoste (Faculty of Law, University of Alberta) has posted Caesar's Faith: Limited Government and Freedom of Religion in Bruker v. Marcovitz (Dalhousie Law Journal, Vol. 32, No. 1, pp. 153-176, 2009) on SSRN. Here is the abstract: The...

Legal Theory Lexicon: Vagueness and Ambiguity

Posted on February 28, 2010
Introduction This week the Legal Theory Lexicon entry focuses on "ambiguity" and "vagueness"--two important concepts for the theory of interpretation. Some legal texts are ambiguous--they can have two or more distinct meanings. And some legal texts are vague--they use concepts...

Legal Theory Bookworm

Posted on February 27, 2010
The Legal Theory Bookworm recommends The Public Domain: Enclosing the Commons of the Mind by James Boyle. Here is a description: In this enlightening book James Boyle describes what he calls the range wars of the information age?today?s heated battles...

Download of the Week

Posted on February 27, 2010
The Download of the Week is Judicial Review and the Athenian 'Constitution' by Adriaan Lanni. Here is the abstract: This paper examines the judicial procedures for reviewing legislation in classical Athens and argues that we can discern from these sources...

Rothman on Copyright, Due Process, and Liberty

Posted on February 26, 2010
Jennifer E. Rothman (Loyola Law School Los Angeles) has posted Liberating Copyright: Thinking Beyond Free Speech (Cornell Law Review, Vol. 95, 2010) on SSRN. Here is the abstract: Scholars have often turned to the First Amendment to limit the scope...

Carlson on Coleman & Legal Realsim

Posted on February 26, 2010
David Gray Carlson (Yeshiva University - Benjamin N. Cardozo School of Law) has posted The Collapse of Positivist Jurisprudence Into Legal Realism After Dworkin on SSRN. Here is the abstract: After Dworkin's critiques of the work of H.L.A. Hart, positivism...

Glencross on the Lisbon Treaty & the Global Role of the EU

Posted on February 26, 2010
Andrew R. Glencross (University of Pennsylvania) has posted The Grand Illusion Continues: What the Lisbon Treaty Means for the European Union and Its Global Role (Foreign Policy Research Institute E-Note, Forthcoming) on SSRN. Here is the abstract: While the EU...

Orgad on Cultural Restrictions on Migration & Citizenship

Posted on February 26, 2010
Liav Orgad (Interdisciplinary Center Herzliyah) has posted Illiberal Liberalism: Cultural Restrictions on Migration and Access to Citizenship in Europe (American Journal of Comparative Law, Vol. 58, No. 1, 2009) on SSRN. Here is the abstract: This article addresses a simple...

Brink on Temporal Neutrality

Posted on February 26, 2010
David O. Brink (University of California, San Diego) has posted Prospects for Temporal Neutrality (The Oxford Handbook of Time, Craig Callender, ed., Clarnedon Press, 2010) on SSRN. Here is the abstract: This paper focuses on normative questions about intertemporal distribution...

Cravens on Judicial Discretion

Posted on February 26, 2010
Sarah Cravens (University of Akron School of Law) has posted Judging Discretion: Contexts for Understanding the Role of Judgment (University of Miami Law Review, Vol. 64, 2010) on SSRN. Here is the abstract: This article approaches from a new angle...

Schlag on Constitutional Interpretation

Posted on February 26, 2010
Pierre Schlag (University of Colorado Law School) has posted Hiding the Ball (New York University Law Review, Vol. 71) on SSRN. Here is the abstract: In the work of constitutional theorists such as Jack Balkin, Randy Barnett, Cass Sunstein, (and...

Shugerman on Judicial Elections & Judicial Power

Posted on February 25, 2010
Jed Handelsman Shugerman (Harvard University - Harvard Law School) has posted "Economic Crisis and the Rise of Judicial Elections and Judicial Review" (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract: Almost ninety percent of state judges today face...

Ellis on Voter Identification Laws

Posted on February 25, 2010
Atiba R. Ellis (West Virginia University - College of Law) has posted The Cost of the Vote: Poll Taxes, Voter Identification Laws, and the Price of Democracy (Denver University Law Review, Vol. 86, No. 3, 2009) on SSRN. Here is...

Stone on Positivism & Utilitarianism

Posted on February 25, 2010
Martin J. Stone (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Positivism as Opposed to What? Law and the Moral Idea of Right on SSRN. Here is the abstract: I ask what a proper critical target for...

Field on Explicit Elections & Tax System Design

Posted on February 25, 2010
Heather M. Field (University of California, Hastings College of the Law) has posted Choosing Tax: Explicit Elections as an Element of Design in the Federal Income Tax System (Harvard Journal on Legislation, Vol. 47, p. 21, 2010) on SSRN. Here...

Weiss on Transgender & Transsexual Identity and Lawrence v. Texas

Posted on February 25, 2010
Jillian Todd Weiss (Ramapo College) has posted Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence V. Texas (Touro Journal of Race, Gender and Ethnicity, Vol. 5, No. 1, February 2010) on SSRN. Here is...

Doorey on Transnational Domestic Labor Regulations

Posted on February 25, 2010
David J. Doorey (York University) has posted In Defence of Transnational Domestic Labor Regulations on SSRN. Here is the abstract: ?Transnational domestic labor regulation? (TDLR) is unilateral regulation introduced by a national government that is designed to influence labor practices...

Knowles on Justice Jackson & the London Charter for the Nuremberg Tribunal

Posted on February 25, 2010
Helen J. Knowles (State University of New York - SUNY at Oswego) has posted 'Judgment of the Law': Justice Robert H. Jackson and the Foundations of the London Charter on SSRN. Here is the abstract: By the spring of 1945,...

Hemphill on Appellate Jurisdiction in Patent Cases

Posted on February 24, 2010
C. Scott Hemphill (Columbia University - Law School) has posted Deciding Who Decides Intellectual Property Appeals on SSRN. Here is the abstract: In Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., the Supreme Court narrowed the Federal Circuit?s appellate...

Reitze on Biofuels

Posted on February 24, 2010
Arnold W. Reitze Jr. (University of Utah, S.J. Quinney College of Law) has posted Biofuels ? Snake Oil for the Twenty-First Century (Oregon Law Review, Vol. 87, p. 1183, 2009) on SSRN. Here is the abstract: Biofuels made from corn...

Crane on "Direct Tax"

Posted on February 24, 2010
Charlotte Crane (Northwestern University - School of Law) has posted Reclaiming the Meaning of 'Direct Tax' on SSRN. Here is the abstract: The history of the litigation in the carriage tax case, Hylton v. United States (1796), including the extraordinary...

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