Law & Society Blog

With the French 55-45% “no” vote to the European constitution, one of the great experiments in post WWII history has come to an end, the idea that economic integration could overcome a past defined by political division. Much of the vote was driven by the fear of losing characteristic national political entitlements (benefitting some, disadvantaging […]

Commenting on Larry Solum’s Legal Theory Lexicon entry on Formalism and Instrumentalism, drhfk recommends recasting the debate as the distinction between first and second order oberservation. This distinction derives from systems theory (particularly Luhmann), and rests on the concept that a social system (such as law) is marked by a fundamental dichotomy (such as “lawful/unlawful”) […]

Following up on a post by Larry Solum and other posts in this blog (for example here and here), I would like to explore what I consider to be a sensible theory of legal formalism.
In order to understand legal formalism, it is helpful to begin with a rough sketch of the core features of legal […]

Larry Solum posted an entry on Formalism and Instrumentalism in his excellent Legal Theory Lexicon. Here is a taste:
The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not). … [In contrast:] […]

He could be killed, mutilated, maimed, brandished, locked up, sent into exile, etc.The collapse of Aristotelian substantive ontology in the late 17th Century (brought about by Galileo, Newton, Leibnitz, and others), also led to a collapse of the corresponding social ontology and its theory of punishment…. Freedom (that is, negative freedom or freedom from), replaced justice as the central criterion of legitimacy.As the new monistic ontology was unable to account for qualitative differences between individuals, the exclusion of the criminal on ontological grounds was no longer plausible.

Along the ceiling of the long walkway connecting the Port Authority and the Times Square subway stations runs a poem: “Overslept, so tired. If late, get fired. Why bother? Why the pain? Just go home. Do it again.”

Who put this exquisitely depressing statement of alienation on M.T.A. property? Given the official looks of the signs, […]

I have previously developed the thought the experience of the Frontier and the duel in particular, show that in America law and society as cultural phenomena are understood in terms of inclusion and exclusion. I called this the edge of the law, refering to the sense that there is an area outside the law and […]

Drhfk writes:
I am not sure that framing the justification debate in terms of rights against the state for protection is particularly helpful. Those rights, I would argue, are derivative of the state’s right to punish criminals. And whether such rights are morally defensible is the issue. … I do agree with Bloomfield’s observation that the […]

While I greatly appreciate Bloomfield’s addition of the bears that shoot laser beams out of their eyes to the cast of characters that appear in the discourse about the justification of punishment (such as the ubiquitous small-town Sheriff who, in order to prevent a murderous riot, sacrifices an innocent person to the mob), I am […]

[Law & Economics] In 1956 the Supreme Court concluded that DuPont, accused by the government of having monopolized the market for cellophane, did not have sufficient market power, because, in a properly defined product market, it was unable to raise prices profitably, that is, so many customers would have stopped buying the firm’s products (or would have bought less) that the higher prices extracted from the loyal customers would not have made up for the loss…. Moreover, my choices of the least unappealing alternatives will, if others share my preferences, provide incentives for producers to supply more of what I want, and to expand or shift the set of available options in a direction that will provide greater value to me, given my set of preferences.Which brings me to an important point about the goals of antitrust policy.