Lawrence B. Solum

Georgetown University | GU · School of Law

Cambridge Core - Constitutional and Administrative Law - The Invisible Constitution in Comparative Perspective - edited by Rosalind Dixon

This article investigates a virtue-centered approach to normative legal theory in the context of legislation. The core idea of such a theory is that the fundamental aim of law should be the promotion of human flourishing, where a flourishing human life is understood as a life of rational and social activities that express the human excellences. Law...

This Essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rel...

Virtue jurisprudence es una teoría normativa y explica¬tiva del derecho que utiliza los recursos de la ética de las virtudes para responder las cuestiones centrales de la teoría del derecho. El objetivo principal de este trabajo es el desarrollo de una teoría de la decisión judicial centrada en las virtudes. La exposición de la teoría comienza expl...

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims. In this Art...

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials....

The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding...

The entry in the Legal Theory Lexicon series describes the New Originalism. Originalism can be viewed as a family of theories organized around two core ideas: (1) The Fixation Thesis, the factual claim that the linguistic meaning of the constitution is fixed at the time each provision is framed and ratified, and (2) The Constraint Principle, the no...

What is the nature of law? This question has occupied center stage jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic jurisprudence. This entry in the Legal Theory Lexicon aims to give an overview of the "What is Law?" debate.Historically, the answer to the question, "What is law?," i...

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this Article, I argue that con...

This entry in the Legal Theory Lexicon provides a short introduction to the idea of functionalist explanation in legal theory. Functionalist explanations are familiar from biology, where evolutionary theory explains the existence of a trait in an organism by the effect the trait has on the ability of organism to reproduce. Sociologists frequently e...

American law students learn about formalism and instrumentalism early on — although those particular terms may not be introduced explicitly in classroom discussion. Many law students hunger for “black letter law": they are looking for legal rules that can be memorized and applied to the facts in a more or less determinate (or even "mechanical") fas...

The book presents a new focus on the legal philosophical texts of Aristotle, which offers a much richer frame for the understanding of practical thought, legal reasoning and political experience. It allows understanding how human beings interact in a complex world, and how extensive the complexity is which results from humans’ own power of self-con...

This article analyzes legal controls on evidence destruction in more or less six parts. Part I describes the rich variety of authority to control evidence destruction. In civil cases, the spoliation inference, discovery sanctions, tort liability, and criminal obstruction of justice statutes provide sanctions against destruction of evidence. In crim...

Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects...

This entry in the "Legal Theory Lexicon" series examines a powerful move associated with the American legal realists. The move can be called the "realist deconstruction of formal legal categories." This move might be schematized as containing three steps: Step One: Categorization. A given fact situation, F, is categorized as falling into some forma...

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims. In this Art...

Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists,” are confused...

This essay examines the relationship between constitutional narratives, causation, and normativity in the context of Barry Friedman’s book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. In his book, Friedman provides a grand narrative of American constitutional history that e...

This short paper is the Foreword to Brannon P. Denning, Marcia L. McCormick, and Jeffrey M. Lipshaw, Becoming a Law Professor: A Candidate's Guide, American Bar Association, Forthcoming. One of the great virtues of Denning, McCormick and Lipshaw’s guide is that it reflects the changing nature and new realities of the legal academy. Not so many year...

In Constructing Commons in the Cultural Environment, Michael J. Madison, Brett M. Frischmann, and Katherine J. Strandburg offer an innovative and attractive vision of the future of cultural and scientific knowledge through the construction of “cultural commons,” which they define as “environments for developing and distributing cultural and scienti...

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law - a category that mo...

What is interpretation? One can imagine a range of answers to this question. One answer might begin with the observation that the English word “interpretation” is used to refer to a variety of human activities. Translators at the United Nations interpret remarks made in French when they offer an English translation. Literary critics interpret novel...

What Does the Indeterminacy Thesis Mean?Is the Law Radically Indeterminate?Is a Modest Version of the Indeterminacy Thesis Defensible?Conclusion References

On June 26, 2008, the United States Supreme Court handed down its 5-4 decision in District of Columbia v. Heller, striking a District of Columbia statute that prohibits the possession of useable handguns in the home on the ground that it violated the Second Amendment to the United States Constitution. Justice Scalia's majority opinion drew dissents...

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called "incorporation."...

American philosophy of law has begun to make what has been called the aretaic turn. What is the aretaic turn in normative legal theory? This question has both a positive and a negative answer. Begin with the negative – the aretaic turn is a turn away from the domination of normative legal theory by consequentialist and deontological paradigms, incl...

Semantic originalism is a theory of constitutional meaning that aims to disentangle the semantic, legal, and normative strands of debates in constitutional theory about the role of original meaning in constitutional interpretation and construction. This theory affirms four theses: (1) the fixation thesis, (2) the clause meaning thesis, (3) the cont...

This chapter presents a typology of various models of governance forms that impinge, or are assumed to impinge, on the Internet. Five such models are analysed. One model is based on a view of the Internet as a self-governing realm of individual liberty beyond the reach of government control. Another model takes as its point of departure the inheren...

This essay investigates the indeterminacy thesis - roughly the claim that the content of authoritative legal materials (such as the texts of constitutions, statutes, cases, rules, and regulations) does not determine the outcome of particular legal disputes. The indeterminacy thesis can be formulated as either "strong" or weak." The strong version o...

The purpose of this essay is two-fold. The first aim is to introduce the reader to Semantic Originalism - a version of the New Originalism that is fully articulated in a long article of that name. The reader's guide in Part II provides a very short summary and accessible guide to the argument of Semantic Originalism. The second aim is to provide ac...

The thesis of "Freedom of Communicative Action" is that Jurgen Habermas's theory of communicative action illuminated the deep structure of the First Amendment freedom of speech. Haberams's theory takes speech act theory as its point of departure. Communicative action coordinates indivudal behavior through rational understanding. Communicative actio...

Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption...

"Constitutional Texting" introduces an account of constitutional meaning that draws on Paul Grice's distinction between "speaker's meaning" and "sentence meaning." The constitutional equivalent of speaker's meaning is "framer's meaning," the meaning that the author of the constitutional text intended to convey in light of the author's beliefs about...

The debate between originalists and nonoriginalists has begun to suffer a fate similar to these earlier debates in constitutional theory and practice. This essay is one of a growing number of recent attempts to look back at the originalism debate now that both the critics and defenders of originalism have stated their positions and replied to argum...

What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism - liberty of conscience,...

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi) - they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordere...

This Article analyzes the shift of legal scholarship from the old world of law reviews to today's world of peer reviews to tomorrow's world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog po...

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structur...

This Essay deveopes an ideal of public legal reason - a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and...

This essay advances a formalist conception of constitutional stare decisis. I shall argue that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework - a reviv...

In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the nuclear option, by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our appl...

Does blogging have anything to do with legal scholarship? Could blogging transform the legal academy? This paper suggests that these are the wrong questions. Blogs have plenty to do with legal scholarship - that's obvious. But what blogs have to do with legal scholarship isn't driven by anything special about blogs qua weblogs, qua collections of w...

Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems - Napster, Gnutella, KaZaA, Grokster, and Freenet3 - are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. Th...

Larry Kramer has written an awesome book, and we mean awesome in its original and now archaic sense. The People Themselves is a book with the capacity to inspire dread and make the blood run cold. Kramer takes the theory du jour, popular constitutionalism (or popular sovereignty), and pushes its central normative commitments to their limits. The Pe...

How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options a...

The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the p...

Part I of Judicial Selection: Ideology versus Character sets the stage for an argument that character and not political ideology should be the primary factor in the selection of judges. Political ideology has played an important role in judicial selection, from John Adams's entrenchment of federalists as judges after the election of 1800 to the Roo...

Procedural Justice offers a theory of procedural fairness for civil dispute resolution. The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question:...

“Virtue Jurisprudence: Towards an Aretaic Theory of Law” explores the implications of contemporary virtue ethics and virtue epistemology for legal theory. The topics explored include a virtue-centered theory of the function of law and an aretaic account of judging.

This essay addresses the fundamental questions of Internet governance: whether and how the architecture of the Internet should affect the shape and content of legal regulation of the global network of networks. Our answer to these questions is based on the concept of layers, the fundamental architectural feature of the Internet. Our thesis is that...

One of the most important features of the architecture of the Internet is the Domain Name System (DNS), which is administered by the Internet Corporation for Assigned Names and Numbers (ICANN). Logically, the DNS is organized into Top Level Domains (such as .com), Second Level Domains (such as amazon.com), and third, fourth, and higher level domain...

The Internet Corporation for Assigned Names and Numbers (ICANN) is charged with designing and implementing policies for "domain names," which function as address identifiers for computers on the Internet. Domain names can have tremendous economic value, as do the registration services that control the databases that resolve domain names into numeri...

“Virtue jurisprudence” is a normative and explanatory theory of law that utilises the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue–centred theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corrup...

"Virtue jurisprudence" is a normative and explanatory theory of law that utilizes the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue-centered theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corru...

The Intellectual Property Clause of the United States Constitution grants Congress power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This essay investigates the issues raised by Eldred v. Ashcroft, in which the Supreme...

In one of the most influential articles in contemporary practical jurisprudence, Justice Antonin Scalia of the United States Supreme Court advances the thesis that the rule of law requires a law of rules. Scalia argues that rule-of-law values favor general rules over all-of-the-circumstances balancing tests as a tool for the elaboration of legal no...

"Virtue jurisprudence" is a normative and explanatory theory of law that utilizes the resources of virtue ethics to answer the central questions of legal theory. This essay begins by comparing the situation of legal theory today to the condition of ethics a few decades ago when Elizabeth Anscombe wrote her famous essay "Modern Moral Philosophy." Th...

September 27 John Mikhail (Georgetown University) - Unreasonable Risk: A Formal Analysis and Critical History of Common Law Negligence October 11 Nelson Tebbe (Brooklyn Law School) - Nonbelievers October 18 Anita S. Krishnakumar (St. John's University) - The Anti-Messiness Principle in Statutory Interpretation October 27 Lawrence B. Solum (Universi...