Law Commons^™

The Questioning Attitude: Questions About Derrida, Martin J. Stone

Articles

No abstract provided.

For A New Order In The Court, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Herbert Hart Elucidated, A. W. Brian Simpson

Michigan Law Review

There are a number of good biographies of judges, but very few of individual legal academics; indeed, so far as American legal academics are concerned, the only one of note that comes to mind is William Twining's life of Karl Llewellyn. Llewellyn was, of course, a major figure in the evolution of American law, and his unusual life was a further advantage for his biographer. In this biography, Nicola Lace has taken as her subject an English academic who also had an unusual career, one whose contribution was principally not to the evolution of the English legal system but to …

Science, Humanity, And Atrocity: A Lawyerly Examination, Steven D. Smith

Michigan Law Review

Joseph Vining's reflection on (as the subtitle indicates) the claims of science and humanity begins with a terse but disturbing recitation of these and similar scientific experiments conducted on human beings during the twentieth century in Manchuria, Nazi Germany, and Pol Pot's Cambodia. The incidents are conveyed through quotations, sometimes of the coldly clinical prose that the researchers themselves chose as most suitable for their purposes. These quotations are juxtaposed against others from an array of distinguished scientists and philosophers explaining the naturalistic cosmology that, in the view of these thinkers, modern science has given us: it is a stark, …

What Nobody Knows, John C. P. Goldberg

Michigan Law Review

By meditating on displays of cunning in literature, history, and current events, Don Herzog in his new book isolates and probes difficult puzzles concerning how to understand and evaluate human conduct. The point of the exercise is not to offer a system or framework for resolving these puzzles. Quite the opposite, Cunning aims to discomfit its academic audience in two ways. First, it sets out to show that some of the central dichotomies of modem thought-those between means and ends, reason and desire, self-interest and morality, fact and value, virtue and vice, knowledge and politics, authenticity and artifice, and appearance …

Tom Morawetz’S “Robust Enterprise”: Jurisprudence After Wittgenstein, Thomas D. Eisele

Faculty Articles and Other Publications

Book review of "Robust Enterprise" by Tom Morawetz.

The Gathering Twilight? Information Privacy On The Internet In The Post-Enlightenment Era, Mark F. Kightlinger

Law Faculty Scholarly Articles

The steady stream of news reports about violations of privacy on the Internet has spawned a growing body of literature discussing the legal protections available for personally identifiable information—i.e., information about identified or identifiable persons—collected via the Internet. This Article takes the discussion of Internet privacy protection in a new and very different direction by reexamining the U.S. Internet privacy regime from the perspective of a broader cultural/historical analysis and critique. The perspective adopted is that of Alasdair MacIntyre's account of the disarray in Enlightenment and post-Enlightenment discourse about morality and human nature and the accompanying disappearance of rational justifications …

Keep These Branches Untangled, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Should Coercive Interrogation Be Legal?, Eric A. Posner, Adrian Vermeule

Michigan Law Review

Most academics who have written on coercive interrogation believe that its use is justified in extreme or catastrophic scenarios but that nonetheless it should be illegal. They argue that formal illegality will not prevent justified use of coercive interrogation because government agents will be willing to risk criminal liability and are likely to be pardoned, acquitted, or otherwise forgiven if their behavior is morally justified. This outlaw and forgive approach to coercive interrogation is supposed to prevent coercive interrogation from being applied in inappropriate settings, to be symbolically important, and nonetheless to permit justified coercive interrogation. We argue that the …

Peril Invites Rescue: An Evolutionary Perspective, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Protecting Posterity: Economics, Abortion, Politics, And The Law, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

“The Inalienable Rights Of The Beasts”: Organized Animal Protection And The Language Of Rights In America, 1865-1900, Susan Pearson

Studio for Law and Culture

Contemporary animal rights activists and legal scholars routinely charge that state animal protection statutes were enacted, not to serve the interests of animals, but rather to serve the interests of human beings in preventing immoral behavior. In this telling, laws preventing cruelty to animals are neither based on, nor do they establish, anything like rights for animals. Their raison d’etre, rather, is social control of human actions, and their function is to efficiently regulate the use of property in animals. The (critical) contemporary interpretation of the intent and function of animal cruelty laws is based on the accretion of …

Liberalism And Republicanism: In Federal Indian Law, Bethany Berger

Faculty Articles and Papers

This essay shows the ways that, despite apparent contradictions, tribal claims fit within the liberal and republican strands of American democratic theory. Critics of tribal sovereignty and, I believe, the modern Supreme Court, are influenced by the seeming conflict between tribal interests and a liberal philosophical framework. I argue that properly understood, most tribal claims do fit within classical liberal theory, with its emphasis on equality and freedom. It is true that some tribal claims are distinctly those of groups or peoples, and so cannot be adequately captured by an individualist liberal framework. Drawing on the later work of John …

A Psychology Of Emotional Legal Decision Making: Revulsion And Saving Face In Legal Theory And Practice, Peter H. Huang, Christopher J. Anderson

Publications

Professor Martha C. Nussbaum is an accomplished scholar in an impressive variety of fields. Drawing on her diverse academic backgrounds, Nussbaum has written extensively about emotions and their importance for law from the perspective of her primary specialty, philosophy. Her book Hiding from Humanity criticizes the roles that two particular emotions, disgust and shame, play in the law. Its central thesis is that, as legal actors, we should be wary of disgust and shame because indulging in those emotions allows us to hide from our humanity - both our humanity in the general sense and also those specific features of …

Re-Embodying Law, Steven L. Winter

Law Faculty Research Publications

No abstract provided.

The Rhetoric Of Innovation, Matthew Herder

LLM Theses

Innovation has been lauded over centuries but the emergence of an "innovation policy paradigm" is a new phenomenon, producing profound changes in the realm of scientific research. Whether these changes stand to benefit 'all' Canadians remains to be seen. Therein lies a problem: The present "innovation policy paradigm" trades on society's deeply entrenched view of innovation (however it occurs) as a public good, while simultaneously encoding for specific a 'brand' of innovation that privileges capital over all other interests. This thesis (1) demonstrates that this paradigm is the product of historically complex contests of power; (2) argues that the paradigm …

Cognitive Dissonance Revisited: Roper V. Simmons And The Issue Of Adolescent Decision-Making Competence, 52 Wayne L. Rev. 1 (2006), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

On Justitia, Race, Gender, And Blindness, I. Bennett Capers

Michigan Journal of Race and Law

This Essay focuses on Justitia's more problematic attributes. Like Justitia's blindfold, which has been described as "the most enigmatic" of her traits. Is the blindfold merely emblematic of Justitia's purported impartiality, her claim to algorithmic justice? As law professor Costas Douzinas and art historian Lynda Nead have asked, does the blindfold enable Justitia "to avoid the temptation to see the face that comes to the law and put the unique characteristics of the concrete person before the abstract logic of the institution"? Or does the blindfold signify something more, a second sight of sorts? Maybe that Justitia, unable to see, …

Reconceptualizing The Boundaries Of "Humanitarian" Assistance: "What's In A Name" Or "The Importance Of Being 'Earnest'"?, 40 J. Marshall L. Rev. 195 (2006), Surabhi Ranganathan

UIC Law Review

No abstract provided.

Dostoyevsky And The Therapeutic Jurisprudence Confession, 40 J. Marshall L. Rev. 41 (2006), Amy D. Ronner

UIC Law Review

No abstract provided.

Legal Pluralism And Human Agency, Jeremy Webber

Osgoode Hall Law Journal

Much legal-pluralist scholarship tends to naturalize "the law of the context," treating that law as though it were inherent in social interaction, emerging spontaneously, without conscious human decision. This view overstates the role of agreement in human societies and mischaracterizes the nature of law, including non-state law. All law is concerned with establishing a collective set of norms against a backdrop of normative disagreement, not agreement. It necessarily contains mechanisms for bringing contention to a provisional close, imposing a collective solution. This article presents a theory of legal pluralism that takes human disagreement seriously. The theory retains four themes crucial …

Feminists, Angels, Poets, And Revolutionaries: What I'Ve Learned From Ruthann Robson And Nicole Brossard On What It Means To Be A Law Teacher, Kim Brooks

Articles, Book Chapters, & Popular Press

This short piece was written as a tribute to the contributions Ruthann Robson has made to legal pedagogy, and was presented at a Symposium in her honor held at CUNY.

Pluralism, Disagreement, And Globalization: A Comment On Webber's "Legal Pluralism And Human Agency", David Schneiderman

Osgoode Hall Law Journal

No abstract provided.

Legal Positivism: Still Descriptive And Morally Neutral, Andrei Marmor

Cornell Law Faculty Publications

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not at odds with Hart’s thesis about the nature of jurisprudence, while the others are wrong, both as expositions of …

The Morality Of Evolutionarily Self-Interested Rescues, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Probability Misestimates In Medical Care, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Race, Religion And Law: The Tension Between Spirit And Its Institutionalization, George H. Taylor

Articles

My reflections flow from some recent writings by the critical race scholar Derrick Bell. Bell acknowledges that in prior work he has focused on the "the economic, political, and cultural dimensions of racism" but now suggests the possibility of a "deeper foundation" arising from the conjunction that "[m]ost racists are also Christians." This statement is Bell at his best: at once both extremely provocative and extremely unsettling. I want to explore and develop two aspects of Bell's argument.

First, if we want to examine and understand the many dimensions of racism, it is not enough to employ economic, political, or …

Cisg Article 31: When Substantive Law Rules Affect Jurisdictional Results, Ronald A. Brand

Articles

No abstract provided.

A Reckless Response To Rape: A Reply To Ayres And Baker, Kimberly Kessler Ferzan

All Faculty Scholarship

In a recent article in the University of Chicago Law Review, Professors Ian Ayres and Katharine Baker propose the crime of "reckless sexual conduct," criminalizing unprotected first-encounter sexual intercourse. The goals of this proposal are to combat the epidemic of sexually transmitted diseases by requiring condom use and to reduce acquaintance rape by "forcing" communication. While the goals are admirable, the proposal is deeply flawed. As public health legislation, it is overinclusive, thereby punishing the morally innocent, and its conception of consent as an affirmative defense fundamentally misunderstands criminal responsibility. As rape reform, which is arguably the true aim of …

The Limits Of Courage And Principle, Jedediah Purdy

Michigan Law Review

Michael Ignatieff, the director of the Carr Center for Human Rights at Harvard's Kennedy School of Government, is not a lawyer. His work, however, treats issues of core concern to lawyers: nation-building, human rights, the ethics of warfare, and now, in his latest book, the proper relationship between liberty and security. The Lesser Evil is, in part, a book a legal scholar might have written: a normative framework for lawmaking in the face of the terror threat. It is also something more unusual: an exercise in an older type of jurisprudence. Ignatieff discusses law in the light of moral psychology …