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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

Kochenov on Equality in the EU

Posted on March 28, 2011
Dimitry Kochenov (University of Groningen - Faculty of Law) has posted Citizenship without Respect: The EU's Troubled Equality Ideal on SSRN. Here is the abstract: The European Union suffers from an empty formalistic reading of the principle of equality when...

Penalver & Strahilevitz on Judicial Takings

Posted on March 28, 2011
Eduardo M. Penalver and Lior Strahilevitz (Cornell Law School and University of Chicago Law School) have posted Judicial Takings or Due Process? on SSRN. Here is the abstract: In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130...

Shaffer & Pollack on Hard Law & Soft Law in International Security (Link Fixed)

Posted on March 28, 2011
Gregory Shaffer (University of Minnesota - Twin Cities - School of Law) & Mark A. Pollack (Temple University - Department of Political Science) have posted Hard Versus Soft Law in International Security on SSRN. Here is the abstract: The use...

Buchanan on Health Care Reform

Posted on March 28, 2011
Neil H. Buchanan (Cornell Law School) has posted Medicare Meets Mephistopheles: Health Care, Government Spending, and Economic Prosperity (Mississippi College Law Review, Vol. 29, p. 319, 2010) on SSRN. Here is the abstract: This essay is an edited version of...

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Bambauer on Rules & Standards and the Regulation of Information Technology

Posted on March 28, 2011
Derek E. Bambauer (Brooklyn Law School) has posted Rules, Standards, and Geeks (Brooklyn Journal of Corporate Finance & Commercial Law, Vol. 5, p. 49, 2011) on SSRN. Here is the abstract: Policymakers and scholars generally assume that information technology is...

Legal Theory Lexicon: Functionalist Explanation in Legal Theory

Posted on March 27, 2011
Introduction In a prior installment of the Legal Theory Lexicon, we explored the difference between Positive and Normative Legal Theories. Positive legal theory attempts to explain and predict legal behavior, especially the content of legal rules. Normative legal theory makes...

Smith & Cohen on Graham v. Florida

Posted on March 26, 2011
Robert J. Smith and G. Ben Cohen (The Charles Hamilton Houston Institute for Race and Justice and The Justice Center's Capital Appeals Project) have posted Redemption Song: Graham v. Florida and the Evolving Eighth Amendment Jurisprudence (Michigan Law Review First...

Legal Theory Bookworm

Posted on March 26, 2011
The Legal Theory Bookworm recommends Attempts: In the Philosophy of Action and the Criminal Law by Gideon Yaffe. Here is a description: Gideon Yaffe presents a ground-breaking work which demonstrates the importance of philosophy of action for the law...

Download of the Week

Posted on March 26, 2011
The Download of the Week is Erie's Suppressed Premise by Michael Steven Green. Here is the abstract: The Erie doctrine is usually understood as a limitation on federal courts? power. This Article concerns the unexplored role that the Erie doctrine...

Albert on the Next Constitutional Revolution & Justice Thomas

Posted on March 25, 2011
Richard Albert (Boston College - Law School) has posted The Next Constitutional Revolution (University of Detroit Mercy Law Review, Vol. 88, No. 4, 2011) on SSRN. Here is the abstract: In these brief reflections presented at the University of Detroit...

White on Confederate Legal History

Posted on March 25, 2011
G. Edward White (University of Virginia School of Law) has posted Recovering the Legal History of the Confederacy on SSRN. Here is the abstract: Although the government of the Confederate States of America has been formally treated as a legal...

Waldron on Targeted Killing & Neutral Principles of Jus Bello

Posted on March 25, 2011
Jeremy Waldron (New York University (NYU) - School of Law) has posted Can Targeted Killing Work as a Neutral Principle? on SSRN. Here is the abstract: This paper casts doubt on the prospects for legitimizing what is known as ?targeted...

Grove on Article II & Federal Jurisdiction

Posted on March 25, 2011
Tara Leigh Grove (Florida State University College of Law) has posted The Article II Safeguards of Federal Jurisdiction (Columbia Law Review, Vol. 112, 2012) on SSRN. Here is the abstract: Jurisdiction stripping has long been treated as a battle between...

Scott & Fata on Secrecy & Good Governance

Posted on March 25, 2011
Craig Scott and Daniel P. Fata (York University - Osgoode Hall Law School and The Cohen Group) have posted Secrecy and Good Governance (GlobalBrief.ca, February 2011) on SSRN. Here is the abstract: Co-author Scott debates Daniel Fata (Vice-President of the...

Postema on Jurisprudence

Posted on March 25, 2011
Gerald J. Postema (University of North Carolina - Philosophy and Law) has posted Jurisprudence (ENCYCLOPEDIA OF UTILITARIANISM, James E. Crimmins, ed., New York: Continuum International Publishers, Forthcoming) on SSRN. Here is the abstract: This essay offers a brief history of...

Steinlen on Strauss on a Living Constitution

Posted on March 24, 2011
Matthew Steilen (Covington & Burling) has posted Reason, the Common Law, and the Living Constitution on SSRN. Here is the abstract: This article reviews David Strauss?s recent book, The Living Constitution. The thesis of Strauss?s book is that constitutional law...

Perdue on Administrative Accountability & TARP

Posted on March 24, 2011
William Perdue (Yale University - Law School) has posted Administering Crisis: The Success of Alternative Accountability Mechanisms in the Capital Purchase Program (Yale Law & Policy Review, Vol. 29, No. 1, 2011) on SSRN. Here is the abstract: The popular...

Sawicki on Freedom of Conscience

Posted on March 24, 2011
Nadia N. Sawicki (Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy) has posted The Hollow Promise of Freedom of Conscience on SSRN. Here is the abstract: Two hundred years ago, Thomas Jefferson asserted that no law ?ought...

Legal Theory Blog in Belorusian

Posted on March 24, 2011
At various times, Legal Theory Blog has been translated into Romanian and Portugese and the Legal Theory Lexicon has been published as a monograph in Chinese. Now, the Download of the Week appears in Belorusian!

McKoski on Judge David Davis & Judicial Impartiality

Posted on March 24, 2011
Ray McKoski (The John Marshall Law School) has posted Reestablishing Actual Impartiality as the Fundamental Value of Judicial Ethics: Lessons from ?Big Judge Davis? (Kentucky Law Journal, Vol. 99, No. 2, 2010-2011) on SSRN. Here is the abstract: The legitimacy...

Hadfield & Macedo on Public Reason

Posted on March 24, 2011
Gillian Hadfield and Stephen Macedo have posted Rational Reasonableness: Toward a Positive Theory of Public Reason (Law & Ethics of Human Rights, Forthcoming) on SSRN. Here is the abstract: Why is it important for people to agree on and articulate...

White on Retributivism

Posted on March 24, 2011
Mark D. White (CUNY College of Staten Island) has posted Introduction to ?Retributivism: Essays on Theory and Policy? (RETRIBUTIVISM: ESSAYS ON THEORY AND POLICY, pp. V-XVI, Mark D. White, ed., Oxford University Press, 2011) on SSRN. Here is the abstract:...

Heise & Sisk on Ideology & Establishment Clause Decisions in the Lower Federal Courts

Posted on March 23, 2011
Michael Heise and Gregory C. Sisk (Cornell Law School and University of St. Thomas School of Law (Minnesota)) have posted Ideology 'All the Way Down'? An Empirical Study of Establishment Clause Decisions in the Federal Courts (Michigan Law Review, Vol...

Reis on Intellectual Property in the Supreme Court

Posted on March 23, 2011
Robert I. Reis (University at Buffalo School of Law (SUNY)) has posted Checks, Balance and Judicial Wizardry: Constitutional Delegation and Congressional Legislation (Akron Intellectual Property Journal, Forthcoming) on SSRN. Here is the abstract: The Supreme Court has decided a number...

Virelli on Constitutional Traditionalism & the Roberts Court

Posted on March 23, 2011
Louis J. Virelli III (Stetson University College of Law) has posted Constitutional Traditionalism in the Roberts Court on SSRN. Here is the abstract: The debate over the role of traditionalism in constitutional interpretation has itself become a tradition...

Kaye on Tort Theory

Posted on March 23, 2011
Timothy S. Kaye (Stetson University College of Law) has posted Torts in Three Dimensions: Lessons from Birth on SSRN. Here is the abstract: This article moves beyond the sterile debate about whether torts is really concerned with promoting efficiency or...

Green on Erie (Link Fixed)

Posted on March 23, 2011
Michael Steven Green (William & Mary Law School) has posted Erie's Suppressed Premise (Minnesota Law Review, Vol. 95, 2011) on SSRN. Here is the abstract: The Erie doctrine is usually understood as a limitation on federal courts? power. This Article....

Book Announcement: Rational Decisions by Binmore in Paperback

Posted on March 23, 2011
Rational Decisions Ken Binmore To read the entire book description or a sample chapter, please visit: http://press.princeton.edu/titles/8902.html It is widely held that Bayesian decision theory is the final word on how a rational person should make decisions...

Moller on Dukes v. Walmart & Lochner

Posted on March 23, 2011
Mark Moller (DePaul University - College of Law) has posted Class Action Defendants' New Lochnerism (Utah Law Review, Forthcoming) on SSRN. Here is the abstract: In the much-watched Dukes v. Walmart, Walmart has advanced a deceptively compelling claim: Due process,...

Criddle on Delegation & Due Process

Posted on March 22, 2011
Evan J. Criddle (Syracuse University College of Law) has posted When Delegation Begets Domination: Due Process in the Administrative State (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract: In federal administrative law, the nondelegation doctrine purports to forbid...

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