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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

Arthur on the Core of Antitrust Doctrine

Posted on July 23, 2009
Thomas C. Arthur (Emory University School of Law) has posted The Core of Antitrust and the Slow Death of Dr. Miles (SMU Law Review, Vol. 62, 2009) on SSRN. Here is the abstract: In 1911 the Supreme Court held in...

Boyce on Obscenity in the U.S. & Canada

Posted on July 23, 2009
Bret Boyce (University of Detroit Mercy - School of Law) has posted Obscenity and Community Standards (Yale Journal of International Law, Vol. 33, p. 299, 2008) on SSRN. Here is the abstract: In this article, I present a comparative study...

Dawood on the Antidomination Model

Posted on July 22, 2009
Yasmin Dawood (Faculty of Law, University of Toronto) has posted The Antidomination Model and the Judicial Oversight of Democracy (Georgetown Law Journal, Vol. 96, No. 5, pp. 1411-1485, June 2008) on SSRN. Here is the abstract: The judicial oversight of...

Barnett on the Constitution & Libertarianism

Posted on July 22, 2009
Randy E. Barnett (Georgetown University Law Center) has posted Is the Constitution Libertarian? (Cato Supreme Court Review, 2008-2009) on SSRN. Here is the abstract: Ever since Justice Holmes famously asserted that ?the Constitution does not enact Mr...

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Van Alstyne on Marriage in the Supreme Court's Abortion Decisions

Posted on July 22, 2009
William W. Van Alstyne (William & Mary Law School) has posted The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court: Altered States in Constitutional Law (William & Mary Bill of Rights Journal, Vol. 18, 2009) on...

Brown on Justice Marshall

Posted on July 22, 2009
Rebecca L. Brown (USC Gould School of Law) has posted Deep and Wide: Justice Marshall's Contributions to Constitutional Law (Howard Law Journal, Vol. 52, 2009) on SSRN. Here is the abstract: This essay, a contribution to a symposium marking the...

Hume on State Supreme Courts & Same-Sex Marriage Amendments

Posted on July 22, 2009
Robert J. Hume (Fordham University) has posted Understanding the Impact of State Supreme Courts: An Event History Analysis of Same-Sex Marriage Amendments on SSRN. Here is the abstract: This paper assesses the impact of state supreme courts on controversial public...

Fincham on Lex Originis & Illicit Cultural Property

Posted on July 22, 2009
Derek Fincham (Loyola University New Orleans College of Law) has posted How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property (Columbia Journal of Law and the Arts, Vol. 32, p. 111, 2008) on SSRN. Here...

Zick on Constitutional Displacement

Posted on July 21, 2009
Timothy Zick (William & Mary Law School) has posted Constitutional Displacement (Washington University Law Review, Vol. 86, No. 3, 2009) on SSRN. Here is the abstract: This Article examines the intersection between territory and constitutional liberty...

Yung on Judicial Activism

Posted on July 21, 2009
Corey Rayburn Yung (The John Marshall Law School) has posted Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Courts of Appeals on SSRN. Here is the abstract: Existing empirical scholarship about judicial activism has...

Zellmer on Preemption

Posted on July 21, 2009
Sandra B. Zellmer (University of Nebraska at Lincoln - College of Law) has posted Preemption by Stealth (Houston Law Review, Vol. 45, p. 1569, 2009) on SSRN. Here is the abstract: The Supreme Court's recent preemption decisions give lip service...

Hasen on Constitutional Avoidance

Posted on July 21, 2009
Richard L. Hasen (Loyola Law School - Los Angeles) has posted Constitutional Avoidance and Anti-Avoidance at the Roberts Court on SSRN. Here is the abstract: At the (apparent but not real) end of the October 2008 Supreme Court term, the...

Boyce on Originalism and the Fourteenth Amendment

Posted on July 21, 2009
Bret Boyce (University of Detroit Mercy - School of Law) has posted Originalism and the Fourteenth Amendment on SSRN. Here is the abstract: In recent years, constitutional scholars have deployed originalist arguments both to attack and to defend the vast...

Farganis on Reasoning & Supreme Court Legitimacy

Posted on July 21, 2009
Dion Farganis (Bowling Green State University) has posted Does Reasoning Matter? The Impact of Opinion Content on Supreme Court Legitimacy on SSRN. Here is the abstract: Is Supreme Court legitimacy affected by the way justices explain their decisions to the...

Owens & Black on Policy Preferences of Circuit Judges

Posted on July 20, 2009
Ryan J Owens (Harvard University) & Ryan C. Black (Washington University, St. Louis - Department of Political Science; Washington University, St. Louis - Center for Empirical Research in the Law) have posted Estimating the Policy Preferences of United States Courts...

Chiang on Levels of Abstraction in Patent Law

Posted on July 20, 2009
Tun-Jen Chiang (George Mason University School of Law) has posted The Levels of Abstraction Problem in Patent Law on SSRN. Here is the abstract: The concept of ?invention? is fundamental to patent law. What the patentee creates as the invention,...

Van Alstyne on Religion in the Workplace

Posted on July 20, 2009
William W. Van Alstyne (William & Mary Law School) has posted Religion in the Workplace: A Report on the Layers of Relevant Law in the United States (Comparative Labor Law & Policy Journal, Vol. 30, No. 3, 2009) on SSRN....

Bernstein on Implied Reverse Preemption

Posted on July 20, 2009
Anita Bernstein (Brooklyn Law School) has posted Implied Reverse Preemption (Brooklyn Law Review , Vol. 74, No. 3, 2009) on SSRN. Here is the abstract: When they apply the doctrine of preemption, courts refuse to hear claims for personal injury...

Craig on European Community Directives for Private Parties

Posted on July 20, 2009
Paul P. Craig (University of Oxford - Faculty of Law) has posted The Legal Effect of Directives: Policy, Rules and Exceptions (European Law Review, Vol. 34, No. 3, p. 349, 2009) on SSRN. Here is the abstract: This article reconsiders...

Corley, Sommer, and Ward on Plurality Decisions in the Supreme Court

Posted on July 20, 2009
Pamela C. Corley, Udi Sommer and Artemus Ward (Vanderbilt University , University at Albany: SUNY and Northern Illinois University) have posted Extreme Dissensus: Explaining Plurality Decisions on the United States Supreme Court on SSRN. Here is the abstract: Plurality decisions...

Legal Theory Lexicon: Originalism

Posted on July 19, 2009
Introduction There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism"--actually a loosely-knit family of constitutional theories. The idea that courts would look to evidence from the constitutional convention, the...

Milanovic on Evolutionary Treaty Interpretation

Posted on July 18, 2009
Check out The ICJ and Evolutionary Treaty Interpretation by Marko Milanovic on EJIL:Talk!. Here is a taste: [T]o sum up: because the contracting parties used a generic term, commerce, and created a perpetual regime, the meaning of the term ?commerce?...

Legal Theory Bookworm

Posted on July 18, 2009
The Legal Theory Bookworm recommends We Shall Overcome: A History of Civil Rights and the Law by Alexander Tsesis. Here is a description: Tsesis, a professor of law and author of The Thirteenth Amendment and American Freedom, offers an ambitious...

Download of the Week

Posted on July 18, 2009
The Download of the Week is Distinguishing Judges: An Empirical Ranking of Judicial Quality in the U.S. Court of Appeals by Robert Anderson IV. Here is the abstract: This article presents an empirical quality ranking of 383 federal appellate judges...

Bandes on Empathy & the Rule of Law

Posted on July 17, 2009
Susan A. Bandes (DePaul University - College of Law) has posted Empathetic Judging and the Rule of Law (Cardozo Law Review, p. 133, 2009) on SSRN. Here is the abstract: This short essay addresses the contention that empathy in judging...

Lain on Evolving Standards & Majoritarianism

Posted on July 17, 2009
Corinna Lain (University of Richmond - School of Law) has posted The Unexceptionalism of Evolving Standards (UCLA Law Review, Vol. 57, No. 2, Forthcoming) on SSRN. Here is the abstract: Conventional wisdom is that outside the Eighth Amendment context, the...

Shomade & Hartley on Network Analysis of Trial Courts

Posted on July 17, 2009
Salmon A. shomade and Roger E. Hartley (University of New Orleans and University of Arizona, School of Government and Public Policy) have posted Exploring the Application of Network Analysis to the Study of Trial Courts on SSRN. Here is the...

Alexander on New Governance & Housing Reform

Posted on July 17, 2009
Lisa T. Alexander (University of Wisconsin Law School) has posted Stakeholder Participation in New Governance: Lessons from Chicago's Public Housing Reform Experiment (Georgetown Journal on Poverty Law Policy, Vol. XVI, No. 1, 2009) on SSRN. Here is the abstract: The...

Kapan on Property Division & Household Bargaining

Posted on July 17, 2009
Tumer Kapan (Department of Economics, Columbia University) has posted Property Division Laws: The Effects on Labor Supply and Household Bargaining on SSRN. Here is the abstract: This paper provides a framework for analyzing the impact of a change in property...

Armstrong on Self-Determination & Moral Arbitrariness

Posted on July 17, 2009
Chris Armstrong (University of Southampton - Faculty of Law, Arts and Social Sciences) has posted National Self-Determination, Global Equality and Moral Arbitrariness (Journal of Political Philosophy, Forthcoming) on SSRN. Here is the abstract: Within the debate over global distributive justice,...

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