Law Commons^™

Wrongs, Rights, And Third Parties, Nicholas Cornell

Articles

In philosophical and legal arguments, it is commonly assumed that a person is wronged only if that person has had a right violated. This assumption is often viewed almost as a necessary conceptual truth: to be wronged is to have one's right violated, and to have a right is to be one who stands to be wronged. I will argue that this assumption is incorrect—that having a right and standing to be wronged are distinct and separable moral phenomena.

My argument begins from cases in which third parties are affected by the violation of someone else's rights. I will introduce …

The End Of Jurisprudence, Scott Hershovitz

Articles

For more than forty years, jurisprudence has been dominated by the HartDworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how the content of these rights and obligations is determined. Positivists say that their content is determined ultimately or exclusively by social facts. Anti-positivists say that moral facts must play a part in determining their content. In this Essay, I argue that the debate rests on a mistake. Our legal practices do not generate rights and obligations that are distinctively legal. At best, …

Philosophy And Law: An Interpretation Of Plato's 'Minos', Steven Thomason

Articles

Plato's Minos presents a twofold argument. In part it is a facile defense of law directed at a typical Athenian citizen. On another level, it is a sophisticated teaching that ponders the question what is law for the would-be philosopher or student of Socrates. These arguments are made in three parts. First, it becomes clear that Socrates' interlocutor has been influenced or corrupted by the teachings of sophists. Second, Socrates attempts to reform the interlocutor's opinion of law by suggesting there is a science of law. Finally, Socrates argues that present day Greek laws are derived from the oldest Greek …

Beyond Max Weber: The Need For A Democratic (Not Aristocratic) Theory Of The Modern State, William J. Novak

Articles

We cannot wish (or think) away the modern state any more than the postwar generation could wish away atomic power. And we cannot ignore the state in our efforts to come to terms with modern economy and society any more than we can ignore equally difficult concepts like modern capitalism or modern law. Attempts to try to reckon with modernity in lieu of hard thinking about such abstract concepts will probably end up deploying some overdetermined and cartoonish causation of a mainly biographical or interest-group sort. Or, like libertarianism, neoliberalism, or other popular anti-statist credos, they will leave us with …

Towards An Outcrit Pedagogy Of Anti-Subordination In The Classroom, Sheila I. Velez Martinez

Articles

This article discusses how traditional teaching practices can reinforce systemic discrimination, exclusion, subordination and oppression within the classroom in particular detriment to women and students of color. The article traces the discussions about pedagogy in Outcrit literature and proposes that Outcrit scholars teaching techniques within the classroom should reflect anti-subordination praxis in teaching. Drawing from the work of Freire, Bell and others, the article proposes that teaching from an anti-subordination perspective requires a praxis of collaborative, non-hierarchical teaching that calls for an epistemological shift. A pedagogy that frees the student to think independently and leads to an experience where there …

Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield

Articles

It is now a commonplace among historians that American criminal jurisprudence underwent a dramatic change something like two-thirds to three-quarters into the last century. Roughly, this development is understood as a shift (or drift) from a more-or-less pure consequentialism to a "mixed theory" wherein retributivism played a major-at times, dominant-role. As the new paradigm remains intact, now approaching a half-century, the development qualifies as a significant historical fact. The fact applies not only to the history of justification for punishment but also to conceptions of the underlying principle of (basis for) responsibility. The two are rightly distinguished: for many scholars …

Jack Sammons As Therapist, Jospeh Vining

Articles

Jack Sammons is well known as a pioneer in making the practice of law a field of academic study and teaching. He is also an original and penetrating analyst of law as such. This essay comments on his recent work, especially his putting the way we understand law and the way we understand music side by side and drawing out the parallels between them. Many will find his work a revelation.

Improving The Performance Of The Performance Test: The Key To Meaningful Bar Exam Reform, Ben Bratman

Articles

If there are going to be bar exams in the United States — and there are, for the foreseeable future — then the lingering question is how to improve them to better serve the goal of evaluating minimum competence. The bar exam is roundly and rightly criticized by academics and practitioners as disconnected from the actual functions that lawyers perform. The focus of the exam, critics say, is too much on knowledge and memorization of law. That focus is exacerbated by the recent addition of a seventh substantive subject, Civil Procedure, to the Multistate Bar Examination (MBE).

The path to …