Law & Society Blog

The discussion whether law reviews deserve cheers or raspberries continues. Dan Solove thinks that student-edited law reviews aren’t that bad after all, and even have their virtues. What I am particularly interested in is the relationship between the law-review piece and legal scholarship. There are two aspects to this.
The first aspect is whether overall, law-review […]

Rosa Brooks, over on the new and enjoyable LawCulture blog, has started—perhaps I should say, rekindled—a discussion on the sense and nonsense of law-review articles. There are responses on PrawfsBlawg by Ethan Leib and Paul Horwitz, and another one back at LawCulture by Jessica Silbey. (I am sure the debate will go on, […]

I am reading Gonzales v. Oregon today, like everyone else, and I am reading what people have to say about the decision. I came across a post by Robert Tsai on Concurring Opinions, in which Tsai is counting justices:
But I have to think that Oregon is very, very lucky regarding the timing of the case.
Justice […]

Alexy captures the connection in four theses: All problems of general philosophy can arise in the context of legal philosophy (”general nature thesis”) There are problems specific to legal philosophy, due to the nature of its object (”special character thesisǃ?)… The “restrictive maxim” holdsfirst, that legal philosophy should never get involved in any genuinely philosophical problem, second, that legal philosophy should concentrate its efforts on the institutional or authoritative character of law, and, third, that legal philosophy should delegate critical normative questions to moral and political philosophy.

This note proceeds from the assumptions that most, if not all, constitutional guarantees are, in fact, optimization principles as explained by Dworkin and Alexy; andthat balancing, while it may ultimately involve an existential, pre-rational commitment, can at least approximate a satisfactory level of discursive rationality.The case of MacWade v. Kelly may serve as an example of where the court weighed the intrusion imposed upon subway riders against the government interest in preventing a terrorist attack…. Any change that will result in a bundle of rights (P1/P2) below the indifference curve will almost always be unacceptable and therefore unconstitutional.For example, in my analysis of the subway case, I (somewhat charitably) assume a relatively high degree of privacy in the subway system and a low degree of safety.

In Law and Formalism, Lawrence Alexander explains that law is essentially formalistic, because it addresses the problem of information, not of immoral motivation, or, as he puts it, “that men are not gods, rather than that men are not angels.” To solve the problem of information, “law must consist of determinate rules,” which are abstract […]

One of the key findings of cultural cognition theory is that cultural world-views not only influence our evaluation of (agreed upon) facts but also, and more fundamentally, that world-views influence our perception and thus the creation of the factual universe available to us. Hence the term “cultural cognition.”… These findings provide the first biological evidence for the involvement of perceptual and emotional processes during social conformity.In other words, test subjects who went against the group showed brain activity in a region associated with emotions from social conflict, which was to be expected.

It is well understood today that the legal enterprise is marked by indeterminacy. This indeterminacy exists in several respects. No lawgiver in history has managed to create rules that were comprehensive: there is a limit to how helpful abstract language is in answering unforeseen questions. Conversely, courts have never managed to completely satisfy their audiences […]

Is there a tension between the theory of cultural cognition and the effects on our moral actions from seemingly insubstantial situational differences? And if so, what kind of experiments could help us resolve that tension?
Recent empirical research has provided us with important insights into the connection of cultural values and the perception of risks. Not […]

In this great new paper, Joshua Knobe and Brian Leiter subject three philosophical approaches to moral psychology to empirical testing, in the sense that they evaluate the fit of each of the three philosophical models with what we currently know about how moral behavior really works…. (Not just the owl of Minerva first takes flight with twilight closing in.) That, of course, has been one of Nietzsche’s recurring criticisms of traditional morals, and so it comes as no surprise that Nietzsche’s account fits more comfortably with the empirical evidence of how moral behavior really works.