Law & Society Blog

Hanno has taken issue with my post, which posits a semantic nexus between first-order and second-order observation:
I don’t think that a decision must necessarily be unlawful from an internal point of view in order to be considered activist from an external point of view.
All right, then. Here is a system showing the claims of defective […]

We’ve made the point before that the distinction which systems theory draws between the observer’s perspective and the participant’s perspective relates to the distinction between realists and formalists. In system’s theory, the observer [or second-order observer] of a social system (such as law) understand the system by observing the participants [or first-order observers] as they […]

David Law and Larry Solum ( of Legal Theory Blog fame) have posted an excellent paper on judical selection on SSRN, entitled Pivotal Politics, Appointments Gridlock, and the Nuclear Option. Here is the abstract:
In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal […]

Robert Justin Lipkin in his working paper entitled The Harm of Same-Sex Marriage: Real or Imagined? argues that yes, same-sex marriage causes harm to those who deprecate it. He is quick to add that “this sense of harm cannot be the basis for law or social policy in a democracy.” But why?
Lipkin, while at […]

I am remiss in pointing out that Jeffrey Lipshaw has posted a new draft of his Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise. I offered some thoughts on this interesting piece, which have been rendered moot in part. In particular, Lipshaw’s conception of compliance seems less at […]

Following one of Larry Solum’s links, I came across an interesting article, by Jeffrey M. Lipshaw entitled Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise. The article undertakes to draw an arc from contract theory to Kelsen, Kant, and Dworkin. Lipshaw asks this question: Is there, in some circumstances, […]

Does the following sentence strike you as odd? “It’s a fact that the law says: you should pay damages to anyone whom you harm by negligently violating a legal duty.” If you are like me, you will answer: yes and no.
First, there is nothing odd about that sentence if you are reading a guidebook for […]

There have been two previous posts here discussing Brian Tamanaha’s article on the Pervasive Perils of Legal Instrumentalism. The first dealt with the transition from hidden to explicit instrumentalism, and the second dealt with the historical development of instrumentalist views of the law. I’d like to add a third post to make two quick observations: […]

In response to a recent post by Hanno Kaiser, in which Hanno argued that the Supreme Court overpowers the law (see also this follow-up), Daniel Solove over at Balkanization has this to say:
In reality, the Supreme Court doesn’t wield a lot of power. Its bark is far louder than its bite has ever been. […]

In response to my thoughts on the historical context of Formalism and Instrumentalism, I received the following interesting question about Karl Friedrich von Savigny (1779 - 1861) and Rudolph von Jhering (1818 - 1892): Can Savigny be seen as a formalist and Jhering as an instrumentalist? Jhering’s famous work Der Zweck im Recht (1877 - […]