Category Archives: Legal Philosophy

Almost as Good as ‘No Vehicles in the Park’

Posted on July 3, 2019 by Michael Froomkin

‘No Vehicles in the Park’ is the basis of one of the great teaching texts for jurisprudence. HLA Hart famously asked,

A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say, to be called “vehicles” for the purpose of the rule or not?’

Believe me, any law professor can fill two hours running hypotheticals off this. There us even the occasional real-life case.

Comes now, however, the Nevada Highway Patrol, in the person of Nevada Highway Patrol Trooper Travis Smaka, who pulled over a vehicle in an HOV lane (not a park) that appeared to have only one occupant — only to be told by the driver that there was in fact another “occupant” in the vehicle: the corpse he was transporting. Trooper Smaka was unpersuaded, but he let the driver off with a warning. (See Police: No, a corpse doesn’t count toward the HOV lane passenger minimum for details.)

So, if the HOV rule is “minimum two occupants in the vehicle,” should a corpse count? Or, as my wife says, how about a pregnant woman in Alabama? If a fetus is a ‘person’ for manslaughter purposes, it is a person for HOV occupancy purposes? Or what about a telepresence robot being operated by some third party? Could that count?

Update: ‘Pearls Before Swine’ weighs in.

Posted in Legal Philosophy | Comments Off on Almost as Good as ‘No Vehicles in the Park’

Catnip for (Judicial) Voting Theory Jurisprudes

Posted on November 16, 2015 by Michael Froomkin

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

Posted in Law: Everything Else, Legal Philosophy | Comments Off on Catnip for (Judicial) Voting Theory Jurisprudes

Two Great Essays at Jotwell

Posted on January 14, 2011 by Michael Froomkin

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.

Posted in Law: Internet Law, Legal Philosophy, Readings | Comments Off on Two Great Essays at Jotwell

Catnip for Legisprudes

Posted on June 29, 2010 by Michael Froomkin

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?

Posted in Legal Philosophy | Comments Off on Catnip for Legisprudes

Habermas@twitter.com ?

Posted on January 29, 2010 by Michael Froomkin

Leiter: Habermas on Twitter?

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

Posted in Legal Philosophy | 1 Comment

The Tragedy of ‘The Tragedy of the Commons’

Posted on September 14, 2008 by Michael Froomkin

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