Lawrence B. Solum

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 action is distinguished from strategic action--the use of communication to manipulate, deceive, or coerce. Part I offers an introduction. Part II outlines a hermeneutic approach to interpretation of the First Amendent. Part III explores and criticizes existing theories of the freedom of speech. Part IV explicates Habermas's theory of communicative action. Part V developes a theory of the freedom of expression based on Habermas's theory of communication. Part VI applies that theory to particular problems in free speech doctrine. Part VII draws some conclusions about the implications of this exercise for the development of doctrine and the theory of communicative action. "Freedom of Communicative Action" was published in 1989, and some of the views expressed in the article are no longer affirmed by the author.

“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 corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgement. A virtue–centred account of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analysing the virtue of justice into constituent elements. These include judicial impartiality (even–handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue–centred theory accounts for the role that virtuous practical judgement plays in the application of rules to particular fact situations. Moreover, it contends that a virtue–centred theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue–centred approach best accounts for the practice of equity, departure from the rules based on the judge’s appreciation of the particular characteristics of individual fact situations. [ABSTRACT FROM AUTHOR].

This essay develops 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 should instead rely on what the author calls public values--values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines. The ideal of public legal reason is then applied to a particular question--whether welfarism (a particular form of normative law and economics) provides the sort of reasons that appropriate for legal practice. The answer to that question is no--to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that fail the test of public reason. The essay also investigates the thesis--advanced by Louis Kaplow and Steven Shavell--that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell's argument, it does not show that welfarism can provide public legal reasons. The essay concludes that law's justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law's deliberations should be shallow and not deep. Law's reason should be public.