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Unfortunate News

May 24th, 2012

The Matan Women’s Institute for Torah Studies announced that it will be closing its flagship course in Talmudic studies due to a shortfall in funds. You can catch up on why this transpired here.

Waldron on Natural Law

May 24th, 2012

Jeremy Waldron (New York University (NYU) - School of Law) has posted What is Natural Law Like? on SSRN. Here is the abstract:
  • “The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else — like positive law, a set of customs, natural morality, natural ethics, a set of natural inclinations, the truth of certain prudential calculations, a widespread but perhaps false belief in some transcendent law, the voice of God, or just a natural disposition on the part of some pompous people to make sonorous objective-sounding pronouncements? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability form objective from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world.

Schauer on Legal Realism

May 24th, 2012

Frederick Schauer (University of Virginia School of Law) has posted Legal Realism Untamed on SSRN. Here is the abstract:
  • What makes hard cases hard, and what makes easy cases easy? A common response to H.L.A. Hart’s (mis)reading of Legal Realist is that the Realists offered their arguments solely in the context of the hard or indeterminate cases likely to find their way into appellate courts. Llewellyn, for example, made clear that his claims were restricted to “any case doubtful enough to make litigation respectable,” and Max Radin limited his Realist claims to “marginal cases.” Thus, a “tamed” version of Realism limits the Realists’ claims to the self-selected but non-representative group of disputes that are the stuff of reported appellate decisions. And this version is “tamed” because it is compatible with the view that standard legal sources determine the outcome in the cases that are not doubtful and would be futile to litigate. Indeed, the version is so tamed that it is largely compatible with Hart’s own response to the Realists. But although many commentators, including this author, have at times subscribed to this effort to tame Realism, that effort may understate the magnitude of the Realist challenge by understating the effect of the gap between paper rules and real rules, to use Llewellyn’s terminology, on the makeup of the array of cases that are or are not doubtful. If, as Llewellyn and others argued, factors other than the standard (or literal) reading of standard legal sources determine the outcome even when the standard legal sources are clear, then the existence of such non-standard sources will make cases that are not doubtful under the traditional picture doubtful – and thus worth litigating. And if this is so, then the divergence between real rule and paper rule will be relevant not only in doubtful cases, but also in determining which cases are doubtful and which not. Realism would then be a claim not merely about doubtful cases, but a claim pervading the entire operation of a system of legal rules. To the extent that the claim is true, therefore, it represents a serious attack on the traditional picture of law throughout its operation, and not simply in the doubtful cases. To the extent that easy cases are easy not because of the plain meaning of the language of a written-down or black-letter legal rule, and thus to the extent that hard cases are hard not because of the indeterminacy of the language of such rules, the entire array of cases selected for litigation, and deselected from litigation, will be determined by factors not to be found in the paper rules. In this sense, American Legal Realism constitutes a less bounded -- and thus untamed -- attack on the traditional picture of law, although the ultimate soundness of the challenge still depends on empirical facts about the relationship, if any, between the paper rules and the real rules.

Review of Bar Ilan Responsa Project 20

May 24th, 2012

Josh Yuter, guest blogging at The Talmud Blog, posts a review of the newest version of the Bar Ilan responsa project

Shinar on Official Resistance to the Law

May 16th, 2012

Adam Shinar (Harvard Law School) has posted Dissenting from Within: Why and How Public Officials Resist the Law (Florida State University Law Review, Vol. 40, Forthcoming, 2013) on SSRN. Here is the abstract:
  • This Article examines why and how public officials consciously resist the laws and policies they are in charge of implementing. The Article argues that this phenomenon is not an anomaly; it is pervasive and unavoidable, for it occurs in all government institutions and because the structures that are designed to promote compliance are the same structures that facilitate resistance.
 
  • The Article attempts to uncover the causes which render official resistance possible, arguing that resistance can be traced both to the limits inherent in the rule of law and to problems of institutional design. It then explores the strategies officials deploy to effectuate their resistance, ranging from blatant defiance to outsourcing resistance to private actors; from immunizing actions from judicial review to ordinary acts of interpretation and administrative prioritization. The Article then turns to discuss the normative implications official resistance generates. While official resistance is often portrayed as undermining law, and therefore undesirable, such a position is simplistic and ignores the benefits it entails, in particular those for triggering public discourse, unblocking political channels, and policy change. The Article also considers the ways in which official resistance can contribute to more just outcomes and more efficient regulatory arrangements. This counterintuitive conclusion should lead us to reexamine our notions of the rule of law, compliance, and obedience. Consequently, the Article advances a more nuanced approach and suggests how to take resistance into account in the ex ante design of laws and policies and in the ex post application of enforcement and monitoring measures.

The Legal Historian and the Text

May 16th, 2012

Steven Wilf, University of Connecticut School of Law, has published Law/Text/Past at 1 Irvine Law Review 543 (2011). From the abstract:
  • How might legal historians read text? What is particular about their modes of reading as opposed to those employed by readers in other disciplines? This essay will analyze the distinctive features of legal texts such as those stemming from the pervasive reliance upon conventions or boilerplate as part of a bricolage construction, the focus upon legitimizing gestures to official authority, and the normative, almost instrumental nature of many legal texts. While other sorts of texts might be more expressive, statutes, for example, always include a sanction. Drawing upon numerous examples, the paper identifies an expansive array of texts, including extra-official legalism; rituals, procedure, and nonverbal texts; and imagined law. While seeking to provide sharp, analytic definitions of what is a legal text, it will forge a path somewhere between establishing a new dichotomy of text/context and, alternatively, proclaiming that everything is text (il n’y a pas de hors-texte). Without making a fetish of the problem of reading, I underscore the ways text might be chimerical, indeterminate, multivocal, slippery, and generally untrustworthy. Text has come to mean too much and too little.
  • Let me make clear what this paper is not about — it is not a guide to literary techniques for reading, a meandering meditation on the craft of history, or a manifesto for the importance of close readings. But I will situate the problem of text reading in our own historiographic milieu as legal historians. It is not simply the breakdown of the binary construct of law/society that leads to a more self-conscious understanding of how to read a legal historical text. Legal history is particularly subject to a postmodern sensibility, which erodes interdisciplinary borders, jurisdictional boundaries, and divisions between official and extra-official justice, and which contributes to disintermediation and the loss of the interpretive monopolies of professional elites. What is the role of the legal historian in this new world?

New Book by Beth Berkowitz

May 4th, 2012

Beth Berkowitz, has published a new book about this verse, Defining Jewish Difference: From Antiquity to the Present. From the publisher’s web site:
  • This book traces the interpretive career of Leviticus 18:3, a verse that forbids Israel from imitating its neighbors. Beth A. Berkowitz shows that ancient, medieval and modern exegesis of this verse provides an essential backdrop for today’s conversations about Jewish assimilation and minority identity more generally. The story of Jewishness that this book tells may surprise many modern readers for whom religious identity revolves around ritual and worship. In Leviticus 18:3′s story of Jewishness, sexual practice and cultural habits instead loom large. The readings in this book are on a micro-level, but their implications are far-ranging: Berkowitz transforms both our notion of Bible-reading and our sense of how Jews have defined Jewishness.