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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

Farber on the EU REACH Directive

Posted on November 18, 2008
Daniel A. Farber (University of California, Berkeley - School of Law) has posted Five Regulatory Lessons from REACH on SSRN. Here is the abstract: The EU REACH directive was enacted at the end of 2006. It contains perhaps the most...

Bagenstos on the Spending Clause

Posted on November 18, 2008
Samuel R. Bagenstos (Washington University School of Law) has posted Spending Clause Litigation in the Roberts Court (Duke Law Journal, Vol. 58, No. 3, 2008) on SSRN. Here is the abstract: Throughout the Rehnquist Court's so-called federalism revolution, as the...

Peerenboom on the Rule of Law & Democracy in China

Posted on November 18, 2008
Randall Peerenboom (La Trobe University - Faculty of Law and Management) has posted Rule of Law and Democracy: Lessons for China from Asian Experiences (DEMOCRACY AND RULE OF LAW IN EAST ASIA, IN EAST ASIAN DEMOCRACIES: DEEPENING, REVERSAL, AND NON...

March on Political Liberalism & Islam

Posted on November 18, 2008
Andrew F. March (Yale University) has posted Reading Tariq Ramadan: Political Liberalism, Islam, and 'Overlapping Consensus' (Ethics & International Affairs, Vol. 21, No. 4, pp. 399-413, Winter 2007) on SSRN. Here is the abstract: In this paper I discuss the...

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Baker on the Harm Principles & Criminalization

Posted on November 18, 2008
Dennis J. Baker (King's College London - School of Law) has posted The Harm Principle vs. Kantian Criteria for Ensuring Fair, Principled and Just Criminalisation (Australian Journal of Legal Philosophy, Vol. 33, No. 66, 2008) on SSRN. Here is the...

Garnett on Tebbe on "Excluding Religion"

Posted on November 17, 2008
Richard W. Garnett (Notre Dame Law School) has posted 'Excluding Religion': A Response (University of Pennsylvania Law Review PENNUMBRA, Forthcoming) on SSRN. Here is the abstract: In a thorough and thoughtful article, Excluding Religion, Prof. Nelson Tebbe asks "whether the...

Baker on Cosntitutionalizing the Harm Principle

Posted on November 17, 2008
Dennis J. Baker (King's College London - School of Law) has posted Constitutionalizing the Harm Principle (Criminal Justice Ethics, Vol. 27, No. 2, p. 3, 2008) on SSRN. Here is the abstract: In this paper, I argue that a constitutionalized...

Pierce on Calabresi & Yoo on the Unitary Executive

Posted on November 17, 2008
Richard J. Pierce Jr. (George Washington University Law School) has posted Saving the Unitary Executive Theory from Those Who Would Distort and Abuse it: A Review of the Unitary Executive, by Steven G. Calabresi and Christopher Yoo (University of Pennsylvania...

Calabresi & Terrell on the Unbundled Executive

Posted on November 17, 2008
Steven G. Calabresi and Nicholas K. Terrell (Northwestern University - School of Law and Northwestern University School of Law) have posted The Fatally Flawed Theory of the Unbundled Executive (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract: This...

Legal Theory Lexicon: Default Rules and Complete Contracts

Posted on November 17, 2008
Introduction At some point in the introductory class in contract law, students are likely to encounter a very powerful idea--the distinction between "default rules" and "mandatory rules." The basic distinction is easy to grasp. Some rules of contract law supply...

Posner & Vermeule on Crisis Government

Posted on November 17, 2008
Eric A. Posner and Adrian Vermeule (University of Chicago - Law School and Harvard University - Harvard Law School) have posted Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008 on SSRN. Here is the abstract:...

Drumbl on Criminalizing Aggression

Posted on November 17, 2008
Mark A. Drumbl (Washington and Lee University School of Law)has posted The Push to Criminalize Aggression: Something Lost Amid the Gains? on SSRN. Here is the abstract: Article 5(1) of the Rome Statute provides the International Criminal Court (ICC) with...

Simons on "Creeping Consequentialism"

Posted on November 17, 2008
Check out Ken Simons's Creeping consequentialism and insidious economics, part I over at Prawfs. Here's a taste: You are teaching or analyzing legal rule A. Suppose rule A seems to express an underlying standard of undesirable or impermissible conduct C...

Legal Theory Bookworm

Posted on November 15, 2008
The Legal Theory Bookworm recommends Law and Judicial Duty by Philip Hamburger. Here is a description: Almost every day, a judge in the United States holds a statute unconstitutional. This power of the judges is known as ?judicial review,? and...

Download of the Week

Posted on November 15, 2008
I am recommending two papers as Downloads of the Week: Framework Originalism and the Living Constitution by Jack Balkin: This article is the third in a series rethinking the relationship between originalism and living constitutionalism, and arguing that the two...

Schragger on Breyer & District of Columbia v. Heller

Posted on November 14, 2008
Richard C. Schragger (University of Virginia - School of Law) has posted The Last Progressive: Justice Breyer, Heller, and 'Judicial Judgment' (Syracuse Law Review, Forthcoming) on SSRN. Here is the abstract: This paper considers Justice Breyer's dissent in District of...

Balkin on Originalism

Posted on November 14, 2008
Jack M. Balkin (Yale University - Law School) has posted Framework Originalism and the Living Constitution (Northwestern University Law Review, 2009) on SSRN. Here is the abstract: This article is the third in a series rethinking the relationship between originalism...

Calabresi & Fine on Balkin & Originalism

Posted on November 14, 2008
Steven G. Calabresi and Livia Fine (Northwestern University - School of Law and Northwestern University - School of Law) hve posted Two Cheers for Professor Balkin's Originalism on SSRN. Here is the abstract: Yale law professor Jack Balkin has recently...

Bamberger & Strauss on Chevron

Posted on November 14, 2008
Kenneth A. Bamberger and Peter L. Strauss (University of California, Berkeley - School of Law and Columbia Law School) have posted Chevron's Two Steps (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract: Contrary to a suggestion by Professors...

Knowles on Clerkish Control of Supreme Court Opinions

Posted on November 14, 2008
Helen J. Knowles (State University of New York - SUNY at Oswego) has posted Clerkish Control of Recent Supreme Court Opinions? A Case Study of Justice Kennedy's Opinion in Gonzales vs. Carhart (Georgetown Journal of Gender and the Law, Vol....

Sklansky on Anti-Inquisitorialism

Posted on November 14, 2008
David Alan Sklansky (University of California, Berkeley - School of Law) has posted Anti-Inquisitorialism (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract: A broad and enduring theme of American jurisprudence treats the Continental, inquisitorial system of criminal procedure...

Crowe on Dworkin on Integrity

Posted on November 13, 2008
Jonathan Crowe (The University of Queensland - T.C. Beirne School of Law) has posted Dworkin on the Value of Integrity (Deakin Law Review, Vol. 12, No. 1, pp.167-180, 2007) on SSRN. Here is the abstract: This article explores and critiques...

Guiora on Military Commissions & National Security Courts

Posted on November 13, 2008
Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Military Commissions and National Security Courts after Guantanamo (Northwestern University Law Review, Colloquy, Vol. 103, p. 199, 2008) on SSRN. Here is the abstract: In the...

Halpin on Methodology in the Philosophy of Law

Posted on November 13, 2008
Andrew Halpin (Swansea University School of Law) has posted Methodology (BLACKWELL COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, Dennis Patterson, ed., 2nd edition, Forthcoming) on SSRN. Here is the abstract: This essay forms a contribution to the forthcoming second...

Nelson on Diversity

Posted on November 13, 2008
Eboni S. Nelson (University of South Carolina - School of Law) has posted Examining the Costs of Diversity (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract: Although the Supreme Court struck down the voluntary race-based student...

Bartow on Record Keeping Requirements for Sexually Explicit Films

Posted on November 13, 2008
Ann Bartow (University of South Carolina - School of Law) has posted Why Hollywood Does Not Require 'Saving' from the Record Keeping Requirements Imposed by 18 U.S.C. Section 2257 (Yale Law Journal Pocket Part, Vol. 118, p. 100, 2008) on...

Primus on Originalism (and a comment on the interpretation-construction distinction)

Posted on November 13, 2008
Richard A. Primus's When Should Originalism Matter? is now available in final form on the Michigan Law Review website. Here is the abstract: Constitutional theory lacks an account of when each of the familiar sources of authority?text, original meaning, precedent,...

Garoupa & Ginsburg on Judicial Councils

Posted on November 12, 2008
Nuno Garoupa and Tom Ginsburg (University of Illinois College of Law and University of Chicago Law School) have posted The Comparative Law and Economics of Judicial Councils (Berkley Journal of International Law (BJIL), 2008) on SSRN. Here is the abstract:In...

Goodman on Spectrum Policy

Posted on November 12, 2008
Ellen P. Goodman (Rutgers University - Law School) has posted Spectrum Policy and the Public Interest on SSRN. Here is the abstract:This chapter for a book on the future of digital television examines how spectrum policy priorities came to shape...

Stern on Originality & the Public Domain in !8th Century England

Posted on November 12, 2008
Simon Stern (Faculty of Law, University of Toronto) has posted Copyright, Originality, and the Public Domain in Eighteenth-Century England (ORIGINALLY AND INTELLECTUAL PROPERTY IN THE FRENCH AND ENGLISH ENLIGHTENMENT, Reginald McGinnis, ed., pp. 69-101, Routledge, 2008) on SSRN...

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