Law Commons^™

The Value And Purpose Of Law: Essays In Honor Of M. N. S. Sellers, Colin Starger, Joshua Kassner

Books

This book reveals and discusses the foundations of law and justice. Fifteen leading lawyers and philosophers of law, representing thirteen nations and fifteen different philosophical schools examine the value and purpose of law, and the nature and requirements of law and justice. Some of the world's most learned and provocative legal scholars address the ultimate questions of legal and social philosophy from all angles and the broadest possible perspective, with special reference to the work of Mortimer Newlin Stead Sellers, and the republican, liberal, and analytical schools of legal thought.

The conclusions reached here are not fully unanimous, congruent or …

The Presumptions Of Classical Liberal Constitutionalism, Matthew J. Lindsay

All Faculty Scholarship

Richard A. Epstein’s The Classical Liberal Constitution is an imposing addition to the burgeoning body of legal scholarship that seeks to “restore” a robust conception of economic liberty and limited government to its rightful place at the center of American constitutionalism. Legislators and judges operating within a “classical liberal conception of government,” Epstein explains, would approach skeptically “[a]ll [regulatory] proposals that deviate from the basic common law protections of life, liberty, and property.” Classical liberal constitutional courts would thus renounce the toothless rational basis review of the post-New Deal “progressive mindset,” and instead subject to exacting scrutiny the government’s “purported …

Comments: When Psychology Answers Constitutional Questions: The Eighth Amendment And Juvenile Sentencing, Emily M. Steiner

University of Baltimore Law Review

While weighing whether or not to turn himself in for murder and surrender to prison, a 23-year-old law student questions the high premium placed on imprisonment as a rehabilitative measure. After finally submitting to imprisonment, however, Rodion Raskolnikov comes to understand the value of atoning for his crimes and how his punishment correlates with societal justice. The balance struck between an appropriate amount of suffering and society’s need for justice is at the heart of Raskolnikov’s character development.

Despite Raskolnikov’s imprisonment and accompanying character transformation, one important question remains unanswered by Fyodor Dostoevsky’s novel: at what point does a punishment …

The Privatization Of Law & The Weakening Of Private Right, Jeffrey Kleeger

University of Baltimore Journal of Land and Development

Law promises much but does not always deliver. It promises due process, equal protection, equity, and personal autonomy—but many individuals leave litigation uncured. The trend in recent years has been increasing privatization of law coupled with diminution of private right. This paper explores ways to secure private rights despite privatization of law by enhancing the rigor of judicial review of state action. Law is one of several social systems operating in an environment of limited resources. Access to oil and gas is, today, more controversial, difficult, and expensive than ever before because of increased environmental regulations created under the Obama …

Republicanism: Philosophical Aspects, Mortimer N.S. Sellers

All Faculty Scholarship

Republicanism is the doctrine that public power should always serve the common good of all those subject to its rule. This raises the question how to do so most effectively, either through particular policies or through constitutional structure (‘the republican form of government'). The republican philosophical tradition began with Plato and Aristotle, flowered in the writings of Marcus Tullius Cicero, and reappeared with the revival of learning in such authors as Niccolo Machiavelli, James Harrington, John Adams, and Immanuel Kant. More recently Philip Peuit, Jürgen Habermas, and others have returned to the republican conception of liberty as nondomination, and how …

Exile On Main Street: Competing Traditions And Due Process Dissent, Colin Starger

All Faculty Scholarship

Everybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in case law. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in the empirical approach, this Article proposes an alternative method that permits analysis of contextual and …

What Useful Role (If Any) Could Legal Positivism Play In The Study Or Advancement Of International Law?, Mortimer N.S. Sellers

All Faculty Scholarship

What useful role (if any) could legal positivism play in the study or advancement of international law? For most of those who remember this once fashionable term at all, "international legal positivism" is redolent of the early years of the twentieth century-of Lassa Oppenheim' at best, and at worst of his model, John Austin, who famously denied that international law is or ever could be genuine law at all, "properly so called." 2 "Positive" law in its central and most usual sense is law "set by a sovereign individual or a sovereign body ... to a person or persons in …

The Dna Of An Argument: A Case Study In Legal Logos, Colin Starger

All Faculty Scholarship

This Article develops a framework for analyzing legal argument through an in-depth case study of the debate over federal actions for post-conviction DNA access. Building on the Aristotelian concept of logos, this Article maintains that the persuasive power of legal logic depends in part on the rhetorical characteristics of premises, inferences, and conclusions in legal proofs. After sketching a taxonomy that distinguishes between prototypical argument logo (formal, empirical, narrative, and categorical), the Article applies its framework to parse the rhetorical dynamics at play in litigation over post-conviction access to DNA evidence under 42 U.S.C. § 1983, focusing in particular on …

Mathematics And The Legal Imagination: A Response To Paul Edelman, Michael I. Meyerson

All Faculty Scholarship

This article, a response to a review by Prof. Paul Edelman of Prof. Meyerson's book "Political Numeracy: Mathematical Perspectives on Our Chaotic Constitution," explains how the study of mathematics can spur creative legal thinking.

Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters

All Faculty Scholarship

This article, which has been published in slightly revised form at 96 Nw. U.L. Rev. 1 (2001), is an application and extension of my theory of adjudication as representation, which holds that the procedural elements of litigant participation and interest representation confer democratic legitimacy on court decisions. In the article, I first develop the notion of a "majoritarian difficulty": the often-ignored tension between democratic self-rule and majority domination of the political minority. Second, I offer a model of majoritarianism as a type of adjudication, in which interested parties lobby for favorable decisions by a neutral decisionmaker. Third, I contend that …

Outcomes, Reasons, And Equality, Christopher J. Peters

All Faculty Scholarship

In this article, Christopher Peters responds to arguments made by Kenneth Simons in The Logic of Egalitarian Norms, 80 B.U. L. REV. 693 (2000), in which Professor Simons defends the normative value of equal treatment against Peters’s earlier critiques. Peters first explains and justifies his attack on deontological rather than consequentialist motivations for equal treatment. He then articulates a difference between two distinct conceptions of “treatment”: an outcome-focused and an holistic conception. Peters argues that the holistic conception must be accepted by anyone who defends a deontological theory of equality. Peters then explains how certain of Simons’s arguments in defense …

Slouching Towards Equality, Christopher J. Peters

All Faculty Scholarship

Drawing on his work in two previous articles, Christopher Peters contends that uncertainty about substantive moral norms cannot justify a presumption of equal treatment. Arguments for equal treatment in the face of uncertainty are types of consequentialist claims; they are not claims of what Peters calls prescriptive equality, that is, for treating likes alike merely because they are alike. Peters contends that the consequentialist case for equal treatment as a response to uncertainty fails in two respects. First, it fails to demonstrate that equal treatment is likely to be a more satisfactory response to moral uncertainty than unequal treatment. Second, …

Republican Legal Systems, Mortimer N.S. Sellers

Book Chapters

This paper discusses the basic attributes of republican legal systems. I will suggest that republican principles provide the only sound basis for a just legal order, and conclude that all laws in all jurisdictions deserve public deference only to the extent that they reflect republican structures of government and legislation.

Equality Revisited, Christopher J. Peters

All Faculty Scholarship

In legal, political, and philosophical discourse, and indeed in everyday life, equality often plays the role of a normatively significant prescriptive principle, a principle that provides reasons for action. Professor Peters, however, joins Peter Westen and others who argue that the traditional statement of prescriptive equality-equals are entitled to equal treatment--is normatively empty because it is a tautology. Like Professor Westen, Professor Peters notes that this traditional principle translates into a statement of simple redundancy: people entitled to equal treatment are entitled to equal treatment. Unlike Professor Westen, however, Professor Peters discerns a nontautological principle of equality, which claims that …

Rejecting The Fruits Of Action: The Regeneration Of The Waste Land’S Legal System, Phillip J. Closius

All Faculty Scholarship

In his greatest work, The Waste Land, T. S. Eliot presents a picture of twentieth century Western civilization as a culture which has lost its essential values and has come undone from its historical moorings. Material wealth has become the focal point of society and its inhabitants. In such a value distorted context, human relationships are devoid of meaning. Honest communication and a meaningful life for the soul and intellect are lost in a dehumanizing daily grind. Religious, communal, and even familial values are subverted to a culturally encouraged drive for personal gain. In this respect, modern Western civilization in …

An Ethical Education: Community And Morality In The Multicultural University, Mortimer N.S. Sellers

Books

This book considers the ethical basis of fundamental university policies with special emphasis on how issues of community and diversity influence education. The authors raise four central questions in this volume:

- What should the aims of universities be, given their changed demography?

- How should university curricula reflect multicultural society?

- Does the new environment require special treatment of campus speech?

- What role should affirmative action play in promoting diversity or community in the academy?