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Monday, May 11, 2020

Welcome to the "Legal Discontinuities" Online Symposium!

On December 29-30, 2019, the "Legal Discontinuities" conference was held at Tel Aviv University's Cegla Center for Interdisciplinary Research of the Law (here's the link to the program). We welcomed papers by Avlana Eisenberg, Lee Anne Fennell, Talia Fisher, Eric Kades, Leo Katz, Saul Levmore,  Julie Roin, Re'em Segev, Mark Spottswood, and me. I was pleased to co-host the conference with Talia Fisher. Over the next two weeks, we'll share blog posts from most of these contributors as well as some of the commentators, such as Ronen Avraham and Omer Pelled. 

What are legal discontinuities? Well, that's part of what the conference is about. They involve all sorts of ways in which small changes to legal inputs lead to dramatic changes to legal outputs. For example, Leo Katz has asked, "Why is the law so all-or-nothing?" and defended the view that the law is and must be so. By contrast, I have focused on the distinction between smooth and bumpy laws and argued that there are probably good opportunities to smooth the law and make it less all-or-nothing. It is truly a cross-disciplinary legal topic, as illustrated most vividly perhaps by Lee Anne Fennell's articles and recent book which address property law, environmental law, business law, and pretty much everything else. For my six-page opening remarks to the conference, click here.

When the topic of legal discontinuities has appeared on Prawfs in the past, Orin Kerr and others have asked how some of these issues differ from rule-standard issues. I tried to answer that in my opening remarks, and I'll post those thoughts later today. Then, we'll get started in earnest tomorrow morning with a blog post by Saul Levmore, former dean of the University of Chicago Law School, on probabilistic disclosures. All of the presenters' papers will be published in a forthcoming issue of Theoretical Inquiries in Law. The journal has kindly allowed us to present this online symposium (and eventually publish the final papers) under generous open access conditions. Many posts will link to their current iterations on SSRN or elsewhere. We look forward to participation from conference authors, their commentators, and Prawfsblawg viewers like you!

Posted by Adam Kolber on May 11, 2020 at 08:12 AM in Adam Kolber, Symposium: Legal Discontinuities | Permalink


Yes Adam , what I meant obviously, is that in the common intuition ( as illustrated with your clever son indeed ) it is perceived as absolutely immoral. That is how , we hear quite often, that saying by laymen, that such or such law or action or conduct, are legal, but, immoral. Like let's say as illustration, prostitution, or gambling and so forth....Such sayings or propositions, are absolutely baseless, yet, heard quite often.


Posted by: El roam | May 11, 2020 12:35:55 PM

You wrote: "Incoherency, and even immorality, and, as absurd as it may sound, is absolutely necessary for maintaining rule of law, and just society." Ahh, now I see.

Well, I don't think it has a lot to do with the symposium, but it's an interesting idea. Of course, if it's "absolutely necessary" to have some immorality to maintain the rule of law and just society and given that the rule of law and a just society seem morally important, it's not obvious that what you're referring to is truly "immoral." It could be that there are certain actions that *seem immoral* but actually are not because they are necessary for other morally important reasons. Like I said, these are interesting ideas and worth working out in more detail someday (though not directly related to the symposium).

Posted by: Adam Kolber | May 11, 2020 11:54:26 AM

Adam, you are right, that notwithstanding, one should try to figure it out, what is going on here. This is Ok. But, what I have claimed, is indeed that:

Incoherency, and even immorality, and, as absurd as it may sound, is absolutely necessary for maintaining rule of law, and just society. There is no other way. And what has been brought here, is only the type of the iceberg.

But, keep on watching and monitoring, this is crucial of course.It can only contribute to better understanding.


P.S.: I have dealt with what is directly dealt in your paper. Just with more general assumption, ignored or missing.I couldn't go down to details, while, I take issue, of the very attitude at first place.


Posted by: El roam | May 11, 2020 11:32:59 AM

Thanks, El Roam. I take your comment to say something like: "We cannot necessarily criticize the law for being incoherent or irrational. Sometimes incoherence and irrationality serve important goals." While I don't think that's what I'm directly discussing in my paper, maybe the following will help:

If I'm understanding you correctly, then I agree with the quoted sentences I made up in the prior paragraph. I do think we should be on guard for incoherence and irrationality. They certainly may indicate that something is going wrong with the law. Or they may indicate that we fail to see the full implications of certain laws or the complex ways they play out in society. Either way, we should try to home in on incoherence and irrationality to try to figure out what's going on. But you're right: we cannot directly infer merely from apparent incoherence that the law should change in some concrete way. Thanks for your comment!

Posted by: Adam Kolber | May 11, 2020 11:09:10 AM

Very interesting issues. It seems, that your paper, is seeking, or rather, criticizing the lack of moral and rational coherency and predictability in laws. But, the law, the legislator, and above all courts, are aware of it. This is a given in fact. One may start with much more simple notion:

Not knowing the law ( at the time of commission of offense ) is not a pretext or defense. Even, and as a given, if the perpetrator, couldn't even know the law and understand it, it wouldn't help. He shall be punished, and only be taken to consideration, in the sentence typically.

So, at the very outset, as presumption, the law itself, recognizes the fact, that it should create victims. It should protect victims, and create victims at the same time. This is a necessity. Why is that ? We wouldn't be able to unfold here so many reasons or issues, but:

Sometimes, by punishing, the law or courts, deter others at the expense of one "innocent perpetrator". Another important one:

Is that the law, deals not only with: attempt, conspiracy, or commission of offenses, but, with closing eyes. Denying. One could in advance, intuitively, avoid slippery slope, but, instead of verifying carefully what lies ahead, one perpetrator, has closed his eyes, and escalated the level of criminality, or, criminal conduct.

So, due to, too many reasons ( maybe later others) searching for moral and rational coherency, is very, very , tricky thing.We haven't even touched procedure and bureaucracy, which is integral and substantial part of justice(contrary to what is perceived typically).


Posted by: El roam | May 11, 2020 10:05:06 AM

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