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Articles 271 - 300 of 374
Full-Text Articles in Law
Is Equality A Totally Empty Idea?, Anthony D'Amato
Is Equality A Totally Empty Idea?, Anthony D'Amato
Michigan Law Review
Professor Peter Westen's essay asserting that the concept of equality has no substantive content whatsoever usefully brushes aside much of the equal-protection rhetoric that, as Westen carefully explains, appropriately belongs to substantive due process. However, his absolutist position is open to challenge. I would like to posit one hypothetical case that I used in my classes when I taught Constitutional Law that I think contradicts Professor Westen's thesis. If it does, then there will be other cases as well, and his position cannot stand as the logically tight construct that he repeatedly asserts that it is.
Suicide And The Failure Of Modern Moral Theory, Donald H. Regan
Suicide And The Failure Of Modern Moral Theory, Donald H. Regan
Articles
The question I want to address is when and why suicide is morally wrong. There is something peculiar in my writing on this question at all. It will soon become apparent that although I think suicide involves genuine moral issues. I also think that the moral problem of suicide is a problem which most people answer correctly. That is, I think that in the vast majority of cases where people ought not to commit suicide, they do not. They are not even tempted. Conversely, most people who do commit suicide, or who want to, are either justified or at least …
The Ethics Of Argument: Plato's Gorgias And The Modern Lawyer, James Boyd White
The Ethics Of Argument: Plato's Gorgias And The Modern Lawyer, James Boyd White
Articles
In what follows I shall analyze Plato's text and do my best to suggest a response to it. But I should say at the outset that for the modern lawyer and law teacher this is not merely an academic exercise, for we in fact are rhetoricians very much as Plato defines them. What is at stake for us in reading this dialogue is what it means to have devoted ourselves to the set of social and intellectual practices that define the profession of law. We have a special relation to this text, for we can in the full Platonic sense …
Paternalism, Freedom, Identity, And Commitment, Donald H. Regan
Paternalism, Freedom, Identity, And Commitment, Donald H. Regan
Book Chapters
Some years ago, I wrote an essay entitled "Justifications for Paternalism." That essay is here revised, and expanded by the addition of a new topic. Many readers of the original version did not understand that the two principal sections presented arguments that were quite independent. I would therefore emphasize that in the present version the three principal sections (II, III, and IV) are separable one from another. Not surprisingly, in an essay so disconnected, I reach no general conclusions I have much confidence in. I suspect the reason for the failure is that I have been insufficiently daring in rejecting …
Against Evaluator Relativity: A Response To Sen, Donald H. Regan
Against Evaluator Relativity: A Response To Sen, Donald H. Regan
Articles
In a recent essay in this journal Amartya Sen introduced the notion of an evaluator-relative consequence-based morality. The basic idea can be described very simply. A consequence-based morality is a morality that instructs each agent to maximize some objective function defined over states of affairs. Such a morality is evaluator neutral if it assigns to every agent the same objective function. If different agents have different objective functions, then the morality is evaluator relative. For example, a morality would be evaluator relative if it assigned to Jones an objective function giving greater weight to the welfare of Jones's children than …
In Defense Of Equality: A Reply To Professor Westen, Erwin Chemerinsky
In Defense Of Equality: A Reply To Professor Westen, Erwin Chemerinsky
Michigan Law Review
Part I of this essay analyzes Professor Westen's arguments that the concept of equality is unnecessary. My contention is that Professor Westen never demonstrates that equality is meaningless; his arguments only prove the obvious, that equality by itself is insufficient. Part II argues that equality is a necessary principle: It is the only concept that tells us that different treatment of people does matter. Part III addresses Professor Westen's suggestion that equality is misleading and points out that none of his criticisms of the idea of equality are in any way inherent to that concept. Finally, Part IV demonstrates that …
The Meaning Of Equality In Law, Science, Math, And Morals: A Reply, Peter Westen
The Meaning Of Equality In Law, Science, Math, And Morals: A Reply, Peter Westen
Michigan Law Review
I shall set forth my thesis in Part I, using the Declaration of Independence ("all men are created equal") to illustrate that the emptiness of equality inheres in its very meaning, and that the confusions of equality result from neglecting its meaning. In Part II, I respond to Professors Chemerinsky's and D' Amato's reasons for believing that equality has independent normative content of its own. In Part III, I respond to Professor Chemerinsky's separate reasons for believing that equality is rhetorically useful.
Social Justice In The Liberal State, Michigan Law Review
Social Justice In The Liberal State, Michigan Law Review
Michigan Law Review
A Review of Social Justice in the Liberal State by Bruce A. Ackerman
Reason And Law, George C. Christie
Reason And Law, George C. Christie
Michigan Law Review
A Review of Justice, Law, and Argument: Essays in Moral and Legal Reasoning by Chaim Perelman
Utilitarianism Reformed, L. W. Sumner
Utilitarianism Reformed, L. W. Sumner
Michigan Law Review
A Review of Utilitarianism and Co-operation by Donald H. Regan
On Justifying Democracy, Michigan Law Review
On Justifying Democracy, Michigan Law Review
Michigan Law Review
A Review of On Justifying Democracy by William N. Nelson
Desert And Deterrence: An Assessment Of The Moral Bases Of The Case For Capital Punishment, Richard O. Lempert
Desert And Deterrence: An Assessment Of The Moral Bases Of The Case For Capital Punishment, Richard O. Lempert
Michigan Law Review
The controversy over the death penalty has generated arguments of two types. The first argument appeals to moral intuitions; the second concerns deterrence. Although both types of argument speak to the morality of systems of capital punishment, the first debate has been dominated by moral philosophers and the second by empirical social scientists. For convenience I shall at times refer to the approach of the moral philosophers as the moral case for (or against) capital punishment or as the argument from morality.
A Theory Of The Good And The Right, Michigan Law Review
A Theory Of The Good And The Right, Michigan Law Review
Michigan Law Review
A Review of A Theory of the Good and the Right by Richard B. Brandt
Philosophy And Law: Some Observations On Maccormick's Legal Reasoning And Legal Theory, Patricia D. White
Philosophy And Law: Some Observations On Maccormick's Legal Reasoning And Legal Theory, Patricia D. White
Michigan Law Review
A review of Legal Reasoning and Legal Theory by Neil MacCormick
Desert And Deterrence: An Evaluation Of The Moral Bases For Capital Punishment, Richard O. Lempert
Desert And Deterrence: An Evaluation Of The Moral Bases For Capital Punishment, Richard O. Lempert
Book Chapters
Because the death penalty was so influential in its development, the law of homicide cannot be thoroughly understood without considering the subject of capital punishment. The question of whether or not the State is justified in taking an offender's life has for centuries been fraught with controversy. Moreover, the law on the subject has become enormously complicated as the courts have attempted to assure that the death penalty is fairly administered.
Private Standing And Public Values, Michael Boudin
Private Standing And Public Values, Michael Boudin
Michigan Law Review
A Review of Legal Identity: The Coming of Age of Public Law by Joseph Vining
Philosophical Perspectives On Affirmative Action, Kenneth W. Simons
Philosophical Perspectives On Affirmative Action, Kenneth W. Simons
Michigan Law Review
A Review of Equality and Preferential Treatment: A Philosophy & Public Affairs Reader edited by Marshall Cohen, Thomas Nagel, and Thomas Scanlon
Lying: Moral Choice In Public And Private Life, Michigan Law Review
Lying: Moral Choice In Public And Private Life, Michigan Law Review
Michigan Law Review
A Review of Lying: Moral Choice in Public and Private Life by Sissela Bok
One Philosophy For An American Revolution, Paul K. Conkin
One Philosophy For An American Revolution, Paul K. Conkin
Michigan Law Review
A Review of The Philosophy of the American Revolution by Morton White
Persons And Consequences: Observations On Fried's Right And Wrong, Stephen R. Munzer
Persons And Consequences: Observations On Fried's Right And Wrong, Stephen R. Munzer
Michigan Law Review
A Review of Right and Wrong by charles Fried
A Review Of A Case Against Blaise Pascal And His Heirs, David A. Schum
A Review Of A Case Against Blaise Pascal And His Heirs, David A. Schum
Michigan Law Review
A Review of The Probable and the Provable by L. Jonathan Cohen
Rejoinders To Hart On Rules And Rights, Stanley L. Paulson
Rejoinders To Hart On Rules And Rights, Stanley L. Paulson
Michigan Law Review
A Review of Law, Morality, and Society: Essays in Honour of H.L.A. Hart by P.M.S. Hacker and J. Raz
Law, Legitimacy, And Symbols: An Expanded View Of Law And Society In Transition, Malcolm M. Feeley
Law, Legitimacy, And Symbols: An Expanded View Of Law And Society In Transition, Malcolm M. Feeley
Michigan Law Review
A Review of Law and Society in Transition: Toward Responsive Law by Philippe Nonet and Philip Selznick
On The Relevance Of Philosophy To Law: Reflections On Ackerman's Private Property And The Constitution, Philip E. Soper
On The Relevance Of Philosophy To Law: Reflections On Ackerman's Private Property And The Constitution, Philip E. Soper
Articles
To turn to moral philosophy these days for help in trying to decide "what to do" is a bit like turning to recipe books for help in a famine. One soon discovers that most philosophers avoid ultimate questions about actual choices in actual cases, preferring to concentrate instead on a preliminary problem: how to go about thinking about what to do. One also discovers that philosophers who have written about this preliminary problem of the structure of moral inquiry are neatly divided, as logically they must be, into precisely two camps: those who do and those who do not think …
Glosses On Dworkin: Rights, Principles, And Policies, Donald H. Regan
Glosses On Dworkin: Rights, Principles, And Policies, Donald H. Regan
Articles
A great many people have attempted to explain what is wrong with the views of Ronald Dworkin. So many, indeed, that one who read only the critics might wonder why views so widely rejected have received so much attention. One reason is that, whatever may be wrong in Dworkin's theories, there is a good deal that is right in them. But what is right is not always clear. Important passages in Dworkin can be distressingly obscure, or tantalizingly incomplete. This essay is a set of loosely connected observations on themes from Dworkin. While I shall add some criticisms of my …
Knowledge And Politics, Phillip Soper
Knowledge And Politics, Phillip Soper
Michigan Law Review
A Review of Knowledge and Politics by Roberto Mangabeira Unger
Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute, E. Philip Soper
Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute, E. Philip Soper
Michigan Law Review
This article offers a review of the Hart-Dworkin dispute and a qualified defense of the positivist's model against Dworkin's attack. The defense is cast primarily in the form of the second possible response to a descriptive theory: Dworkin's attack fails, I suggest, because it involves descriptive claims that can be accommodated to the positivist's conceptual theory regardless of one's view about the plausibility of those claims.
Jus Non Scriptum And The Reliance Principle, Stanley L. Paulson
Jus Non Scriptum And The Reliance Principle, Stanley L. Paulson
Michigan Law Review
On the Continent, a general theory of customary law has been developed-what I term the Continental theory; it identifies formation and validity as the central issues in the analysis of custom and customary law. Yet the Continental theory, notwithstanding its longevity and continuing favorable reception among international lawyers, is ridden with problems. In particular, as I argue in the following section, the theory fails for want of a coherent position on the formation issue. In the course of my argument, I suggest a classification of the norms of customary law in terms of a generic category broader in scope than …
Dworkin's "Rights Thesis", Michigan Law Review
Dworkin's "Rights Thesis", Michigan Law Review
Michigan Law Review
This Note argues that the rights thesis is untenable. It shows that Dworkin's distinction between arguments of principle and arguments of policy, upon which the rights thesis is based, cannot withstand close scrutiny. The Note questions whether it is sensible to speak of an objectively soundest theory of law, and argues that, even if such a theory is feasible, Dworkin has failed to prove that it will always dictate a unique result (or, put in different words, that the rights thesis is part of the putative soundest theory). If Dworkin's idea of a soundest theory is oppugned, or if the …
H. L. A. Hart On Legal And Moral Obligation, Michigan Law Review
H. L. A. Hart On Legal And Moral Obligation, Michigan Law Review
Michigan Law Review
One of the central problems in both moral and legal philosophy has been to offer a satisfactory analysis of the concept of obligation. In ordinary language the word "obligation" is used in several different contexts. It may refer to moral obligation (e.g., "I am morally obligated to keep my promise to help my uncle with his knitting"), legal obligation (e.g., "I am legally obligated to report as income on my tax return whatever funds I embezzle from my employer"), political obligation (e.g., "I am politically obligated to vote"), or social obligation (e.g., …