Category Archives: Legal Theory

A Summons to Save Democracy | RealClearPolitics

Several misguided beliefs, maintains Riemen, obscure the decay of democracy. Enthrallment with science and technology induces neglect of literature and the arts, history, philosophy, and theology — the true sources of knowledge about morals and politics. The political left fosters a naïve faith in rationality, progress, and the natural goodness of man that blinds adherents to “the impact that the will to power, lust, desire, and self-interest have on the human condition.” And also concealing our precarious condition is the fear that arises from “economic insecurity, and the threat of terror or war,” as well as the “organized stupidity” that has become the “dominant force” of Western society, and which promotes an obsessive preference for the pleasures of the body over care for the soul.  via www.realclearpolitics.com.. To continue reading this legal news please click Read full information...

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Engel on Behavioral Law & Economics

Christoph Engel (Max Planck Institute for Research on Collective Goods) has posted The Proper Scope of Behavioral Law and Economics on SSRN.  Here is the abstract: Behavioral law and economics applies the conceptual tools of behavioral economics to the analysis of legal problems and legal intervention. These models, and the experiments to test them, assume an institution free state of nature. In modern societies, the law’s subjects never see this state of nature. However, a rich arrangement of informal and formal institutions creates generalized trust. If individuals are sufficiently confident that nothing too bad will happen, they are freed up to interact with strangers as if they were in a state of nature. This willingness dramatically reduces transaction cost and enables division of labor. If generalized trust can be assumed, simple economic models are appropriate. But they must be behavioral, since otherwise individuals would not want to run the risk….. To continue reading this legal news please click Read full information...

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Issacharoff, Bursak, Rennie, & Webley on the Status of Puerto Rico

Samuel Issacharoff (New York University School of Law), Alexandra Bursak (New York University School of Law), Russell Rennie (United States Court of Appeals for the Ninth Circuit), & Alec Anthony Webley (Covington & Burling – Washington, D.C. Office) have posted What is Puerto Rico on SSRN.  Here is the abstract: Puerto Rico is suffering through multiple crises. Two are obvious: a financial crisis triggered by the island’s public debts and the humanitarian crisis brought on by Hurricane Maria. One is not: the island’s ongoing crisis of constitutional identity. Like the hurricane, this crisis came from outside the island. Congress, the U.S. Supreme Court, and the Executive Branch have each moved in the last twenty years to undermine the “creative statesmanship” that allowed for Puerto Rico’s self-government with minimal interference from a Federal Government in which the people of Puerto Rico had, and have, no….. To continue reading this legal news please click Read full information...

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Duff on Criminal Law Theory

R. A. Duff (University of Stirling – Department of Philosophy) has posted  Introduction: A Theory of Criminalization? (Forthcoming, The Realm of Criminal Law (Oxford University Press)) on SSRN.  Here is the abstract: This introductory chapter to The Realm of Criminal Law (forthcoming from Oxford University Press) provides the context for the book—the widely held belief that we face a crisis of criminalization (or over-criminalization), and a criminal law that has become chaotic and unprincipled. One useful response to such a crisis is to articulate a normative theory of criminal law, which will help us to see what criminal law ought to be (and thus to identify more clearly the radical defects in our criminal law): that is what this book will do. The Introduction also comments on the book’s method—a process of rational reconstruction that begins from salient features of our existing practices, and aims to make normative sense of them.….. To continue reading this legal news please click Read full information...

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Movsesian on "The Dignity of Commerce" by Oman

Mark L. Movsesian (St. John's University School of Law) has posted Markets and Morals: The Limits of Doux Commerce (William and Mary Business Law Review (Forthcoming)) on SSRN.  Here is the abstract: In this essay for a symposium on Professor Nathan Oman’s new book, "The Dignity of Commerce," I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called "doux commerce" thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from tradition, which suggests we should be careful attributing too much to markets’ ability to promote liberal….. To continue reading this legal news please click Read full information...

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