Category Archives: Legal Philosophy

Catnip for (Judicial) Voting Theory Jurisprudes

David Post, Wild voting paradox case in the 3rd Circuit. Just. Go. Read. It.

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Two Great Essays at Jotwell

I try not to use this blog to promote my other projects too often for fear of becoming a broken record.  But sometimes I cannot resist.

Over at Jotwell we’ve been publishing a whole lot of interesting reviews of recent scholarship relevant to the law, and I could be bragging about it every week.  But the two most recent essays have been particularly extraordinary, and I recommend them to everyone.

Sex/Power/Law is Robin West‘s review, for our Jurisprudence section, of Marc Spindelman, Essay, Sexuality’s Law,  20 Colum. J. Gender & L. (forthcoming 2011). It begins like this:

Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.

It ends with:

This is writing that matters, that serves truth, that responds to injury, and that restores one’s faith in the legal academy; this is what legal scholarship can be.

And the stuff in between is well worth your time.

Banana Republic.Com is Frank Pasquale‘s review, for our Cyberlaw section, of Jonathan Zittrain, Ubiquitous Human Computing, Phil. Trans. R. Soc. A, vol. 366 no. 1881 3813-3821 (28 October 2008):

Wasn’t the internet supposed to solve these problems? Wouldn’t a “wealth of networks” guarantee opportunity for all, as prediction markets unearthed the “wisdom of crowds?”  It turns out that the net, while mitigating some forms of inequality in the US, is accelerating others.  Jonathan Zittrain’s essay “Ubiquitous Human Computing” examines a future of “minds for sale,” where an atomized mass of knowledge workers bid for bite-sized “human intelligence tasks.”  Zittrain explores some positive aspects of the new digital dispensation, but the larger lesson is clear: without serious legal interventions, an expansive global workforce will be scrambling for these jobs by “racing to the bottom” of privacy and wage standards.  This review explains Zittrain’s perspective, applauds his effort to shift the agenda of internet law, and argues that trends untouched on in Zittrain’s essay make his argument all the more urgent.

This review is a little longer than our usual fare, but it’s a rollicking read about a very important subject.

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Catnip for Legisprudes

Paul Gowder argues that an “amendment” which didn't state the actual language amended, but only the result it sought to accomplish, would be valid. See Uncommon Priors » Lex posterior derogat priori and the elusive performative.. This is in response to an argument saying it would not.

My knee appears to be making a spasmodic movement suggesting that, in the absence of a firm rule to the contrary in the relevant jurisdiction, Gowder is correct.

How, after all, is this different from passage of a law that says (as they so often do), “notwithstanding any prior provision to the contrary…”? Does the difference turn on the use of the term “amendment”? And if so, why should one give the term such weight?

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Leiter: Habermas on Twitter?

Sadly, probably not, but it's still fun.

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The Tragedy of ‘The Tragedy of the Commons’

Trust it to be John Quarterman, who always seems so really smart when I get to be in the same room with him, to be the one to draw my attention to Debunking the Tragedy of the Commons.

When Garrett Hardin published his famous article about the “tragedy of the commons” in Science in December 1968, he cited no evidence whatsoever for his assertion that a commons would always be overgrazed; that community-owned resources would always be mismanaged. Quite a bit of evidence was already available, but he ignored it, because it said quite the opposite: villagers would band together to manage their commons, including setting limits (stints) on how many animals any villager could graze, and they would enforce those limits.

Finding evidence for Hardin's thesis is much harder…

The source is Ian Angus, Links, International Journal of Socialist Renewal, Debunking the `Tragedy of the Commons' (August 24, 2008).

Meanwhile, says John,

So privatization is not, as so many disciples of Hardin have argued, the cure for the non-existant tragedy of the commons. Rather, privatization can be the enemy of the common management of common resources.

This dovetails with some interesting recent legal work, such as Michael Heller's new book, The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives.

In any case, it's interesting to learn that one of the articles I found most influential in college has a slight empirical problem.

Trouble is, I think I may still believe it, since the tragedy of the commons seems to capture something one sees, or thinks one sees, in real life. As a result I still think in many, most, but not all, cases markets, or managed markets, are the way to structure large swaths of large-scale social and economic organization.

Too much economics Kool-Aid?

Posted in Econ & Money, Legal Philosophy | 13 Comments

This Bugs Me

The Cardozo Law Review has a symposium volume, “Law and Event,” on the work of Alan Badiou.

I don't have time to read it.

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