Archive for the ‘Legal Theory’ Category
Book Review: Daniel Markovits, A Modern Legal Ethics
posted by Stephen Galoob
A Modern Legal Ethics, by Daniel Markovits. Princeton University Press: New York 2008. Pp. 361. $29.95
Daniel Markovits’s A Modern Legal Ethics could change the way we think about legal ethics, although not necessarily far enough or in only the right directions.
The main argument is elegant and provocative. Markovits contends that a central issue in legal ethics should be the “problem of integrity.” Lawyers must be able to integrate their professional commitments into their moral lives. This is the most important insight of the book. Other commentators have noted the problem of integrity, but Markovits offers the most sustained and nuanced discussion. His argument opens up new avenues for thinking about the rules governing lawyers.
On Markovits’s telling, the lawyer’s integrity is directly challenged by her professional obligations. Good lawyering requires what, on ordinary morality, would be considered lying and cheating. These “lawyerly vices” are endemic to the adversarial system, so they can’t be cured by tailoring the rules governing lawyers. Neither is avoiding these vices an option, given their incompatibility with integrity.
For Markovits, there are better and worse ways to solve this problem. Most theories of legal ethics utilize what he calls (after David Luban) the “adversarial system excuse,” or the consequentialist view that the lawyerly vices are justified as part of a legal system that is just overall. Here, if the overall practice is justified, then the integrity issues fall away. Impersonal approaches can only accidentally or incidentally resolve integrity problems.
Interpersonal theories of legal ethics (which he calls “Kantian” approaches) don’t fare any better. On these approaches, principles of legal ethics are acceptable only if they fulfill specified criteria (e.g., that they could be reasonably consented to, that they could not be reasonably rejected, etc.). Yet, Markovits argues, concentrating on fulfilling such criteria raises the same problem as with impersonal approaches: any resolution to the problem of integrity is a byproduct, rather than an important end in itself.
Markovits thinks we must take the “lawyer’s point of view” in order to solve the problem of integrity in the right way, which requires a “first-personal” approach to morality. Markovits calls his version “role-based redescription.” If there were a distinctive, morally worthy role for lawyering, then the lawyer could preserve her integrity by redescribing her professional obligations to lie and cheat as requirements of fulfilling this role.
March 3, 2010 at 11:12 pm
Posted in: Articles and Books, Book Reviews, Jurisprudence, Legal Ethics, Legal Theory
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Dismembered Goats and the Philosophy of Contract Law
posted by Nate Oman
My latest offering is now up on SSRN for your enjoyment. This particular paper began with a simple question: “Why did people in the ancient world formalize their contracts by hacking up a goat?” Here’s the abstract for the paper that resulted:
In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was in effect an enacted penalty clause: “If I breach this contract, let it be done to me as we are doing to the goat.” This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promising or the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the event of breach. In the ancient ritual with the goat, the retaliation consented to consisted of self-help violence against life and limb. The private law in effect domesticates and civilizes retaliation by replacing private warfare with civil recourse through the courts. It thus facilitates the social cooperation made possible by the ancient threats of retaliation while avoiding the danger of escalation and violence that such private violence presented. This civil recourse theory of contractual liability provides an explanation for a number remedial doctrines that have proven difficult for rival interpretations of contract law to explain, including the penalty clause doctrine, limitations on expectation damages, and the basic private law structure of contractual liability. Finally, this Article responds to some of the most powerful objections that might be made against a civil recourse theory of contractual liability.
The article, “Consent to Retaliation: A Civil Recourse Theory of Contractual Liability,” is, to my knowledge, the first full-length article on civil a recourse theory and contract. Civil recourse, of course, has been a much discussed topic in the philosophy of tort law, where it has been championed by John Goldberg and Benjamin Zipursky. My take on the normative foundations of civil recourse, however, is a bit different than theirs. Hence, in addition to illuminating the mystery of the hacked up goats, my hope is that the article will contribute to debates in the philosophy of contract law and the philosophy of private law more generally. Enjoy!
March 1, 2010 at 8:14 am
Posted in: Contract Law & Beyond, Jurisprudence, Law and Humanities, Legal Theory, Uncategorized
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An Overdue Thank You and a Resource for IP Folks
posted by Deven Desai
Mike Madison is a great friend. Don’t take my word for it. Just take a look at one example of his generosity. Mike has always been a wonderful resource for anyone looking to improve their scholarship. I know I have benefited from his time and advice. We have talked a few times about a concern that Mike had raised: “younger IP scholars either have lost the knack of knowing something about the history of the discipline – or never acquired it in the first place.” A month ago Mike took action to help remedy the concern. I, for one, am most grateful to have the resource (and Mike might be happy that I contact him less often about such matters). I hope it helps anyone in the field. In addition, I hope others who perceive similar possible gaps in knowledge take the time to construct and share analogous lists in their fields. Until then, here are links to Mike’s gifts.
Lost Classics of Intellectual Property Law – Background and Introduction
Lost Classics of Intellectual Property Law – Copyright
Lost Classics of Intellectual Property Law – Trademark
Lost Classics of Intellectual Property Law – Patent
February 3, 2010 at 3:49 pm
Posted in: History of Law, Intellectual Property, Law School (Scholarship), Legal Theory
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BRIGHT IDEAS: A Dialogue with Brian Tamanaha
posted by Daniel Solove
Professor Brian Tamanaha (Washington University School of Law) has been publishing a number of must-read works in jurisprudence. His latest book is Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2010). Brian was gracious enough to respond to my request for a brief dialogue about his ideas in the book. I agree with quite a lot of what Brian argues, but I played a bit of a skeptic in my interview questions, as I wanted to push him on some of his arguments. Here’s our exchange:
Solove: You argue in your book that the “formalist-realist divide” is a myth based on a straw-man account of formalism – that formalists were unduly rigid and mechanistic and that realists correctly pointed out that judges weren’t purely objective robots. You spend the first part of your book debunking the traditional view of formalism, noting that formalists were much more balanced and realistic than their critics give them credit for. You argue that dethroning this picture of formalism should lead to an embrace of “balanced realism.” What do you mean by “balanced realism”?
Tamanaha: My argument is not quite that we have bought into a “straw-man [or exaggerated] account of formalism,” but more strongly, that the “formalist age” was a pure invention by progressive critics to paint judges as deluded or deceptive. I provide substantial evidence in the book showing that judges and jurists at the turn of the century did not believe in “formalism.” There were no avowed “formalists” in the U.S. legal culture (although it did exist in German legal science). Indeed, “formalism” was used as an insult at the time; they associated formalism with a primitive stage in law, which they had progressed beyond; “the Zeitgeist and its dislike of formalism,” wrote a jurist in 1893. I show in the book that, contrary to conventional accounts of the so-called formalist age, the jurists now identified as leading “formalists” (Cooley, Carter, Dillon, etc.) all said very realistic things about judging.
“Balanced realism” recognizes that there are gaps in the law, that sometimes judges have discretion and must make choices, that different judges can sometimes interpret the same law in different ways owing to differences in perspective and background, that inconsistent precedents or conflicts in the applicable law can exist, and that sometimes judges manipulate the law to reach desired ends (I called these factors the “skeptical aspects”); but “balanced realism” also recognizes that a substantial bulk of the time the rules and their application are clear and predictable, that surrounding institutional factors constrain judges, that most judges abide by the commitment to follow the law, and that the overwhelming majority of judicial decisions are legally determined (the “rule bound” aspects).
I call this “balanced realism” because it acknowledges the limitations inherent to law and human judges—which cannot be eliminated—yet it also recognizes that law nonetheless works, that judges can and do render rule bound decisions. For at least two centuries, the book shows, judges and jurists have described law and judging in balanced realist terms. The formalist-realist divide that dominates contemporary views of judging tends to obscure this common ground.
Solove: You write that “the greater danger to the legal system today is posed not by excessive formalism but by excessive skepticism about judging” (p. 197). What do you mean by this?
Tamanaha: The rule bound aspect of judging can function reliably within a legal system notwithstanding the challenges attendant to the skepticism-inducing aspects, but this is an achievement that must be earned, is never perfectly accomplished, and is never guaranteed. Excessive skepticism about judging threatens to disrupt the balance. If our legal culture buys into the view that judging is a cover for politics, then judges might well come to think it is naïve or foolish to strive to live up to the commitment to rule in accordance with the law. If this commitment is lost, rule bound judging will diminish.
January 19, 2010 at 2:25 pm
Posted in: Articles and Books, Book Reviews, Bright Ideas, Constitutional Law, Legal Theory
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The Irrelevance of Legal Thought
posted by Nate Oman
I suspect that one of the depressing truths of being a law professor is that much of our thinking on how to solve social problems is irrelevant at best and pernicious at worse.
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January 11, 2010 at 9:44 am
Posted in: Bankruptcy, Consumer Protection Law, Contract Law & Beyond, Corporate Finance, Current Events, Economic Analysis of Law, Legal Theory, Securities Regulation
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An Egalitarian Argument for Punishing Poor People More Harshly
posted by Nate Oman
Consider the following argument: The same punishment for different people is not in fact the same. Thinking of a criminal fine is the easiest example. A $1000 fine levied on an offender who is a millionaire is simply not as serious of a sanction as a $1000 fine leveled against a poor criminal. The millionaire can pay the fine without noticing it, while the poor criminal may be subjected to considerable economic hardship. The result is that the $1000 fine will not have much deterrent effect against the millionaire. To get his attention we require a much harsher punishment. So far so good. Read the rest of this post »
January 10, 2010 at 3:02 pm
Posted in: Economic Analysis of Law, Law and Inequality, Legal Theory
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Understanding Privacy, A Book Review
posted by Danielle Citron
My colleague Leslie Meltzer Henry and I just posted, on SSRN, our piece Visionary Pragmatism and the Value of Privacy in the Twenty-First Century, 108 Michigan Law Review (forthcoming 2010), a book review of Dan Solove’s Understanding Privacy. Although we have a tight timeline for editing, we would love feedback on it.
January 5, 2010 at 1:06 pm
Posted in: Articles and Books, Legal Theory, Privacy, Technology
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PhD/JDs: Fads or Future?
posted by Dave Hoffman
Llewellyn Knew All About Lamposts
My post on the value of having a PhD in the academic hiring market of 2015 has gotten a surprising amount of attention. I thought I’d respond to some of that feedback here.
By email and by blog, I’ve gotten pushback from those who continue to contest that we’re in an empirical “bubble.” I take that to mean a fad – a passing interest –rather than an empirical claim that we are valuing work or candidates at more than their intrinsic worth. (How could we get any handle on either side of that equation!) My point about the economics of supply-side data is that it’s a trend that is only going to get stronger in the future. Larry Ribstein certainly is correct to observe that this creates a “looking-under-the-lampost” problem. But of course, legal academics have been in a century-long crouch under a lamppost of their very own. As Llewellyn said:
“I am a prey, as is every may who tries to work with law, to the apperceptive mass . . . [T]he appellate courts make access to their work convenient. They issue reports, printed, bound, to be had all gathered for me in libraries. The convenient source of information lures.” (Bramble Bush)
Looking at newly cheap data about legal institutions encourages people to run fast regressions without thinking. But reading opinions, which are free, has encouraged thousands of legal articles about a dataset which is biased & shaped by selection. (Irrational behavior in response to a “radical price“? Nah.) Truly sophisticated empirical work doesn’t discount the role of opinions in shaping legal norms, but it does conclude that opinions are skewed and rhetorically hot versions of what judges do, and thus unrepresentative of how practically-grounded lawyers make judgments about how to litigate their cases. Making that insight concrete is but one of the many projects undertaken by the New Legal Realists. Others – law and psychology, law and criminology, cultural cognition, etc. – together convince me that the future of the empirical revolution is pretty bright. And having a PhD/JD is an increasingly important entry credential in the field.
December 9, 2009 at 9:32 am
Posted in: Economic Analysis of Law, Law School (Hiring & Laterals), Law School (Scholarship), Law School (Teaching), Law and Psychology, Legal Theory, Philosophy of Social Science
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A Civil Procedure Curriculum Challenge
posted by Spencer Waller
I read with great interest Jon Siegel’s recent post on curricular reform and the thirty or so comments it generated. I don’t really disagree with his main point that law school is mostly about “acquiring the ability to acquire skills and knowledge.” But at the same time, I don’t spend that much time on personal jurisdiction and Erie in my civil procedure class and wanted to use this post to explain why.
I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part of a general reform of the first year curriculum. So I have now taught the course in just about every possible permutation.
I currently spend the first 2/3 of the course on the litigation process and about the remaining 1/3 on personal jurisdiction and Erie. I am probably in the minority on this and it’s hard to find a casebook that is set up the way I prefer.
I do it this way because of my belief that only a detailed study of the litigation process reflected in the FRCP can convey a deep understanding of the American civil justice system and its strengths and weaknesses. For better or worse, we have a system that (until very recently) has deemphasized pleadings and uses discovery to lay the groundwork for settlement or summary judgment for those cases that make it into the system and is increasing reliant on ADR for those cases that don’t. Of late, the Supreme Court has seemingly raised the bar on pleadings in Twombley and Iqbal and reinvigorated motions to dismiss as a more meaningful part of the litigation process. One cannot understand what we do, how we do it, why the rest of the world thinks we are crazy, what is changing, and what needs to be changed without a large amount of class time, which of necessity limits the amount of time devoted to personal jurisdiction and Erie.
All this is driven by my view of in most litigation the law is easy, but the facts are hard. Discovery is where the facts come in. If you don’t understand how parties marshal, present, and protect facts from their files, from the real world, and from the other side through discovery then the students leave civ pro (and possibly law school) without any real clue how our civil justice system works. Read the rest of this post »
October 12, 2009 at 9:56 am
Tags: ADR, Civil Procedure, discovery, Erie, federal rules of civil procedure, litigation process, personal jurisdiction, pleadings, subject matte jurisdiction, summary judgment, Twombley
Posted in: Civil Procedure, Education, Law Practice, Law School (Teaching), Legal Theory, Teaching
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Voting as Veto
posted by Michael Kang
It’s been great to guest blog at Concurring Opinions, but unfortunately for me, my stint here has come to a close. I’ve enjoyed it. Thanks to Dan Solove, Danielle Citron, and their colleagues for hosting me during the last couple months.
I thought that I would use my last post to introduce a work-in-progress, titled Voting as Veto (forthcoming early next year in the Mich. L. Rev.). The article began long ago with a simple observation: When my wife and I (pre-baby) had to decide where to go out for dinner, I realized that I rarely had an affirmative preference for a particular restaurant or type of food on a given night. Instead, I found myself acting almost exclusively on what I call “negative preferences,” or preferences against certain outcomes. I mainly preferred not to visit a particular restaurant or have a particular type of food on a given night. Besides the desire to reserve a veto against certain outcomes, I was reasonably indifferent most of the time about where to go otherwise. It struck me that this type of negative preference was probably common in more formal, less mundane contexts for voting that I study in my research. Although there are many forms of voting that implicitly account for negative preferences in various ways, I found very little in the legal and political science literature developing the notion of negative preferences, or systematically assessing a conception of voting as veto. Voting as Veto is my attempt at both.
In addition, I am currently working on a related essay that applies the insights of Voting as Veto to corporate shareholder voting, the subject of public attention in recent months. Unfortunately, I haven’t posted a draft of either piece on SSRN quite yet. Voting as Veto is further along and currently in the middle of the citechecking process, but as a result, it is in many pieces at the moment. However, I plan to post drafts as soon as I can, so please feel free to email me if you have any questions or comments. Thanks again.
September 22, 2009 at 5:43 am
Posted in: Corporate Law, Legal Theory, Politics
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Post on Legal Scholarship
posted by Frank Pasquale
Yale announced today that Robert Post will succeed Harold Koh as Dean of its Law School. I am thrilled to hear the news. I read Post’s book Constitutional Domains: Democracy, Management, Community while I was in college, and it helped convince me to go to law school. During my recent visit at Yale, Post struck me as one of the most intellectually interesting and friendly faculty members. Virtually every student I talked to who worked with him described him as an outstanding mentor.
Many of our readers might be interested in Post’s take on legal scholarship.
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June 22, 2009 at 12:50 pm
Posted in: Law and Humanities, Legal Theory, Philosophy of Social Science
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Mirror, Mirror on the Wall, Who is the Most Activist of Them All?
posted by Corey Yung
In my last post, I gave some results based upon collective groupings of appellate judges. In this post, I want to focus on the performance of individual judges. The primary reason that I am working to create a relatively large dataset is to allow for individual judge assessments. That has not been possible with the existing appellate court databases.
So, while I cannot yet tell you who the most activist judge was in 2008 because I have only reviewed data from five circuits, I can share my preliminary results for a few higher profile judges, including the most recent nominee to the United States Supreme Court. Here are the activism scores based upon my preliminary data for some of the highest profile judges in the Second, Third, Fourth, Seventh, and Eighth Circuits ranked from most activist to least activist:
June 4, 2009 at 8:07 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Applying My Measure of Judicial Activism
posted by Corey Yung
In my previous post, I finally got around to explaining my measure of judicial activism. In this post, I will give some of the results based upon my preliminary data.
One of the most remarkable things I have found so far is that, although each of the circuits has a relatively consistent reversal rate, the activism scores vary by significant margins. The chart below shows the reversal rates and activism differentials for each of the five circuits that I have examined:
The activism scores are negative numbers with the higher numbers indicating a higher degree of activism. Thus, the 3rd Circuit is the most activist and the 4th Circuit is, by far, the least activist.
Of course, one thing that is always interesting to look at is which President’s appointees are the most activist. Here are the results I have so far:
This chart should be taken with a very large grain of salt. Although in some senses, I already have a large amount of data, in others I have very limited sample sizes. When I start analyzing data that uses the judge as a unit of measure, I only have 52 judges with adequate sample sizes. So, there are few representatives for some presidents. That is also why I am not including any regression analysis in these posts. I include this chart simply to show one of variables that I will explore in regards to activism. Other examples of variables I will examine include background experience (district court, private practice, prosecutor, law professor, etc.), conditions at the time of the appointment (election year, unified government, etc.), and other assorted factors (law school attended, activism in particular areas of law, ABA ratings, etc.).
As this project is still ongoing, I welcome any comments and/or suggestions. In my next, and probably last, post, I will give some information about some high profile judges including Judge Sotomayor.
Update: Based upon popular demand, I have changed the second graph to a bar chart.
June 2, 2009 at 9:25 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Measuring Judicial Activism by Federal Appellate Judges
posted by Corey Yung
In my last post, I briefly described the major approaches to studying activism. In this post, I will outline my measure for the concept as well as the contours of my dataset.
Since judicial activism at its core is about substituting judgment of other constitutional actors, for federal appellate courts it makes the most sense to study where they do most of their work: reviewing the judgments of district courts. That ensures large sample sizes, wide coverage of different areas of law, and decisions that are still restrained so some non-activist baseline can be derived.
To that end, standards of review offer a powerful tool to understand judicial decision making at the federal appellate level. There are deferential (i.e. clear error) and non-deferential (i.e. de novo) reviews of district court judgments. As you can see from the chart below derived from my dataset, standards of review do affect reversal rates.
May 30, 2009 at 9:15 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Studying Judicial Activism by Federal Appellate Judges
posted by Corey Yung
In my last post, I offered a new definition of judicial activism as applied to federal appellate judges. In this post, I will discuss some of the existing research on the subject.
The existing empirical scholarship is largely focused on two things: activism by the U.S. Supreme Court and judicial review of the other federal branches. While there is a lot of interesting work within those studies, I think the focus on Supreme Court review of other branches offers an extremely narrow view of judicial activism.
The Supreme Court is an unusual body in American courts. It is not subject to any higher review. The Justices are largely free to decide a case however they feel. As a result of the unrestrained nature of the Court, “activism” is a hard concept to measure. There is difficulty in finding a baseline against which to measure the Justices. A Justice who is an outlier on one Court might have regularly been in the majority during a different era. The problem of measuring activism is compounded by the Court’s very small docket. Because there are so few cases, the sample sizes are not large. Further, because the docket is self-selected, the cases are not random and are concentrated in just a few areas of law.
May 30, 2009 at 7:31 am
Posted in: Empirical Analysis of Law, Legal Theory, Uncategorized
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Defining Judicial Activism by Federal Appellate Judges
posted by Corey Yung
First off, I wanted to thank Dan and the rest of the Concurring Opinions bloggers for having me back so soon. My last stint was cut a bit short by some unexpected family issues. As it turns out the subject I wanted to blog about then, judicial activism by federal appellate judges, is more timely now because of the Sotomayor nomination. She is already being attacked as an activist judge as a basis for rejecting her nomination (even if those attacks are just part of some inevitable game we play). For some time, I have been working on a project that attempts to provide an effective measure of judicial activism by federal appellate judges like Sotomayor. Over the next few posts, I will explain my measure and show some preliminary results. However, I need to do a bit of work defining the concept first.
May 29, 2009 at 7:34 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Ethics and Government Lawyers Redux: Jeff Powell’s Happy Constitution
posted by Andrew Taslitz
In an earlier post, I noted that two recent books had important things to say relevant to the ethics of government lawyers. That first post reviewed one of those books. This post reviews the second, H. Jefferson Powell’s beautifully written and spiritually uplifting new book, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008). Despite what the book’s title might suggest, Powell’s lessons concern the ethics that should guide all constitutional decisionmakers, not only government lawyers. Indeed, his lessons explicitly apply to such lawyers as well, including a chapter-length illustration. Here I simply summarize his ethical theory, leaving it to the reader to imagine applications.
I note one preliminary point: while much constitutional law scholarship is depressing, either foolishly pretending law to be a mechanical enterprise divorced from politics or a cynical one masking politics, Jeff Powell offers a third, happier way ignored by fools and cynics alike: that of virtue. Those embracing the first two approaches may see Powell’s way as hopelessly idealistic, but Powell himself sees it as highly realistic, and his extended examples, which I do not have space to recount here, strongly support the pragmatic viability of his suggestions. Read the rest of this post »
May 19, 2009 at 9:16 am
Posted in: Articles and Books, Book Reviews, Constitutional Law, Legal Ethics, Legal Theory, Politics, Supreme Court, Uncategorized
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What Is Empathy? Obama’s Philosophy of Law and the Next Supreme Court Justice
posted by Daniel Solove
There has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court. When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 precent of cases that are truly difficult.” Obama further explained:
In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
Over at the Volokh Conspiracy, Orin Kerr has a very thought-provoking post examining what Obama means by “empathy.” He writes:
What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30″ side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.
Orin’s post reminds me of the debate between H.L.A. Hart and Ronald Dworkin.
In The Concept of Law, H.L.A. Hart famously observed:
May 13, 2009 at 7:50 pm
Posted in: Constitutional Law, Jurisprudence, Law and Humanities, Legal Theory, Politics, Supreme Court, Uncategorized
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UCLA Law Review 56:4 (April 2009)
posted by UCLA Law Review
Volume 56, Issue 4 (April 2009)
Articles
A Constitutional Birthright: The State, Parentage, and the Rights Of Newborn Persons (pdf)
James G. Dwyer
“Which Is To Be Master,” The Judiciary or the Legislature? When Statutory Directives Violate Separation Of Powers (pdf)
Linda D. Jellum
Normative Methods for Lawyers (pdf)
Joseph William Singer
Comment
Sex Outside of the Therapy Hour: Practical and Constitutional Limits on Therapist Sexual Misconduct Regulations (pdf)
S. Wesley Gorman
April 19, 2009 at 5:11 pm
Posted in: Constitutional Law, Family Law, Law Rev (UCLA), Law Rev Forum, Legal Theory, Teaching
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Chicago Cubs and the Curse of Legal Formalism
posted by Howard Wasserman
On Saturday night, Deven’s Los Angeles Dodgers beat the Cubs 3-1, completely a dominating three-game sweep in the National League Division Series in which they outscored the Cubs 20-6. Thus will it be more than 100 years between world championships for the Cubs, who famously last won in 1908. This century of losing has been blamed on everything from billy goats to black cats to twenty-something fans in head phones to the refusal to install lights at Wrigley Field. I want to suggest a new source: legal formalism.
In addition to being the centennial of the Cubs’ last championship, 1908 also was the centennial of one of the game’s most infamous gaffes, by Fred “Bonehead’ Merkle. Some detailed history. On September 23 of that year, the Giants and Cubs, tied for first place, played at New York’s Polo Grounds. Tied 1-1 with two outs and runners at first (Merkle, then a rookie first-baseman) and third, the Giants’ Al Bridwell singled, scoring the runner from third, and apparently winning the game.Giant fans immediately ran onto the field, a common practice in those days, both to celebrate and to head to the stadium exit in right field that was closest to the trains and streetcars home. To get out of the crowd, Merkle turned right and headed for the clubhouse, which was located behind centerfield (the Polo Grounds remains my favorite of the now-deceased ballparks), without touching second base. That left the force at second base in effect. Amid the chaos, Cubs second baseman Johnny Evers got a ball (no one knows for sure whether it was the actual ball that had been hit on the play and that fact never has been established; some stories have a Giants player throwing the actual batted ball into the stands) and tagged second base and umpire Hank O’Day called Merkle out on the force, which nullified the run and ended the inning. The game then was called because of darkness and declared a tie. The teams finished the season tied, so the tie game was replayed; the Cubs won 4-2, winning the pennant and then the World Series–their last.
October 5, 2008 at 3:10 pm
Posted in: Culture, Current Events, Legal Theory
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