Legal Theory Bookworm: "Bias: A Philosophical Study" by Kelly
Legal Theory Blog
by Lawrence Solum
2d ago
The Legal Theory Bookworm recommends Bias: A Philosophical Study by Thomas Kelly.  Here is a description: Bias seems to be everywhere. Biased media outlets decisively influence the political opinions and votes of millions of people. Discriminatory policies favor some racial groups over others. We tend to judge ourselves more favorably than our peers, and more favorably than the evidence warrants. But what is it, exactly, for a person or thing to be biased? In Bias: A Philosophical Study, Thomas Kelly explores a number of foundational questions about the nature of bias and our pr ..read more
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Downloads of the Week: (1) "Originalism after Dobbs, Bruen, and Kennedy" by Barnett & Solum, (2) "The Incompatibility of Substantive Canons and Textualism" by Eidelson & Stephenson, & (3) "The Puzzle of Procedural Originalism" by Sohoni
Legal Theory Blog
by Lawrence Solum
2d ago
There are multiple DOTWs this week.  First up is: Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition by Randy E. Barnett & Lawrence B. Solum (Here is the abstract: In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms ..read more
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Geisel on Bruen and Originalism
Legal Theory Blog
by Lawrence Solum
2d ago
A.W. Geisel (University of Pennsylvania Carey Law School) has posted Bruen is Originalish on SSRN.  Here is the abstract: In the wake of New York State Rifle & Pistol Assn., Inc. v. Bruen, commentators have divided over one seemingly simple question: is the case Originalist? This Essay presents a reading of Bruen that splits Justice Thomas’s “text-and-history” test into two distinct outputs: a statement about constitutional meaning, and a test for future litigants. The former is Originalist, but the latter is not, which leaves Bruen somewhere between Originalism and non-Originali ..read more
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Pojanowski on Private Law Theory and Kantian Formalism
Legal Theory Blog
by Lawrence Solum
2d ago
Jeffrey A. Pojanowski (Notre Dame Law School) has posted Private Law Formalism and Jurisprudential Method (Forthcoming in Thilo Kuntz and Paul B. Miller, eds., Methodology in Private Law Theory (Oxford University Press)) on SSRN.  Here is the abstract: This paper, a chapter in a forthcoming volume on methodology and private law theory, explores the connections between Kantian private law formalism and methodology debates in general jurisprudence. Highly recommended ..read more
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Alschuler on Bruen
Legal Theory Blog
by Lawrence Solum
3d ago
Albert W. Alschuler (University of Chicago Law School) has posted Twilight-Zone Originalism: The Supreme Court's Peculiar Reasoning in New York State Pistol & Rifle Association v. Bruen on SSRN.  Here is the abstract: In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court announced: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” After revi ..read more
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Moyn on Animals, Slaves, and Domination
Legal Theory Blog
by Lawrence Solum
3d ago
Samuel Moyn (Yale University) has posted Animals and Slaves: A Legal Analogy between Domination and Reform (Anne Peters et al., eds., Oxford Handbook of Global Animal Law (Oxford University Press), Forthcoming) on SSRN.  Here is the abstract: The analogy between animals and slaves is rooted deep in the Western tradition. This chapter argues that the parallel between animals and slaves has been static neither in its content nor its consequences to date. Originally it revolved around domesticated non-human agricultural labouring animals and their enslaved human counterparts. Over mille ..read more
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Thumfart on Cybersecurity and Legitimacy
Legal Theory Blog
by Lawrence Solum
3d ago
Johannes Thumfart (Vrije Universiteit Brussel (VUB) - LSTS, Interdisciplinary Research Group on Law Science Technology & Society) has posted The (Il)Legitimacy Of Cybersecurity. An Application of Just Securitization Theory to Cybersecurity Based On the Principle of Subsidiarity (Applied Cybersecurity & Internet Governance 1, no. 1 (17 November 2022): 97–120) on SSRN.  Here is the abstract: The application of securitization theory to cybersecurity is useful since it subjects the emotive rhetoric of threat construction to critical scrutiny. Floyd’s just securitization theory (J ..read more
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Kulshreshtha on Consent and Rape in India
Legal Theory Blog
by Lawrence Solum
3d ago
Nikunj Kulshreshtha (O P Jindal Global University- Jindal Global Law School) has posted A Critical Analysis of the Standard of Consent in Rape Law in India (Onati Socio-legal Series (ISSN 2079-5971)) on SSRN.  Here is the abstract: This article critically analyses the standard of consent in rape law in India by engaging in a doctrinal analysis of the current jurisprudence. It also analyses various extraneous circumstances influencing the determination of consent in Indian rape law. The article will then assess the status of consent jurisprudence and related issues in the English and ..read more
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Ohanesian on Deference and the NLRB
Legal Theory Blog
by Lawrence Solum
3d ago
Nicholas Ohanesian (Social Security Administration) has posted Errors and Omissions: Applying Lessons from History to Decide the Future of Administrative Deference with Respect to the National Labor Relations Board on SSRN.  Here is the abstract: A majority of the current members of the Supreme Court have expressed an interest in altering or doing away with entirely deference to administrative agencies. Prior to upending the existing regime, it is useful to understand the what the world would look like without administrative deference and at the same time serve as a cautionary tale a ..read more
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Leib on Fiduciary Constitutionalism
Legal Theory Blog
by Lawrence Solum
3d ago
Ethan J. Leib (Fordham University School of Law) has posted Three Modalities of (Originalist) Fiduciary Constitutionalism (63 American Journal of Legal History (2023 Forthcoming)) on SSRN.  Here is the abstract: There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularl ..read more
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