Law Commons^™

Revitalizing The Right, David Azerrad

The Journal of Contemporary Legal Issues

Debating the nature of conservatism may well be the favorite hobby of American conservatives. While the question will never be resolved to anyone’s satisfaction, it is a pleasant enough pastime to detract from the failures of the American conservative movement to conserve much anything of worth (unless you count the movement itself, in all its sinecurial grifting splendor, as something of worth).

V.24-1, 2023 Masthead

The Journal of Contemporary Legal Issues

No abstract provided.

A Bloodless, Crownless, Hydroponic Conservatism: America In The 21st Century, Rachel Lu

The Journal of Contemporary Legal Issues

Defining conservatism feels audacious. The mere attempt seems to place us in company with Lincoln, Kirk, Buckley, Hayek, Oakeshott, Scruton, Reagan and Thatcher, and many more illustrious personalities. One can hardly aspire to offer the definitive take; at best, we might hope to draw meaningful connections between a long-running conversation about conservatism, and the cultural or political struggles of our own time. That less-ambitious goal may still be very worthwhile, however. There is a reason why conservatives love to debate conservatism. It helps us to identify worthwhile goals, and remind ourselves why they matter. Looking at the political right today, …

Nature, Tradition, And Virtue: Restoring The Conservative Good Life, Bruce P. Frohnen

The Journal of Contemporary Legal Issues

Conservatism, always a contested term, has become the subject of major confusion in the post-Cold War era. As it emerged after the Second World War in the writings of Russell Kirk and the pages of William F. Buckley’s National Review, the conservative movement already was more coalition than single program or philosophy. The notion of conservative “fusionism” was a convenient but superficial means of holding together libertarians, politically under-defined anti-communists, and traditional conservatives in pursuit of their common public policy goals. As the Cold War wound down and the Republican Party devolved into neoliberal globalism, the movement dissolved into mutually …

Traditionalism Rising, Marc O. Degirolami

The Journal of Contemporary Legal Issues

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples …

Return To Deliberation, Richard M. Reinsch Ii

The Journal of Contemporary Legal Issues

American conservatism finds itself facing an array of difficult if not intractable challenges and problems. Progressive elements dictate revolutionary claims about gender, race, economics, policing, alongside their dismissal of American history as just racism, sexism, and homophobia. Moreover, progressives sit atop the commanding heights of culture, education, social media, influential corporations, and the federal bureaucracy. Conservatives still win elections about half the time, but face incredible problems in governing because of this political, cultural, and educational imbalance of power.

The Forgotten Path Of Liberal Conservatism: What Yoram Hazony Ignores, Daniel J. Mahoney

The Journal of Contemporary Legal Issues

Today, in academic and intellectuals circles it is a besieged minority that affirms that the freest, most prosperous, most self-critical societies in the history of the world have been bequeathed a patrimony worth preserving. We have lost a meaningful and robust sense of what constitutes the West as the West (in fact, the term itself has no real resonance with the younger generations). The “Other” in faraway places, to use a fashionable abstraction, is beyond criticism since cultural and moral criticism are in those cases de rigueur; but the appropriate response to the faults of rule-of-law societies in the …

Conservatives Divide On Matters Of Principle, Maimon Schwarzschild

The Journal of Contemporary Legal Issues

The conservative phenomenon in the United States in the years since the Second World War has entailed—I hesitate to say “embraced”—a variety of diverging views, preoccupations, and commitments, some of them at least in tension with, if not actually opposed to, one another. This has been true for conservative writers, thinkers, and publicists; it has also been true for America’s conservative voting constituencies. For many decades, conservatives were often said to be subdivided between traditionalists and libertarians. There were (and are) diverging tendencies even among the traditionalists: these tendencies can be religious or secular, with styles and emphases that diverge …

The Social Clerisy: Conservative Political Philosophy As A Philosophy Of Pluralism And The Social Group, Luke C. Sheahan

The Journal of Contemporary Legal Issues

Conservative political philosophers should be counted among, as Nisbet writes, “those thinkers who have resisted the appeal of the One, the unitary and monistic, and have found not merely reality but freedom and justice and equity to lie in plurality.” They should take as their starting point Nisbet’s tradition of the plural community. Given our place in history, following the increasing alienation and decline of social groups chronicled by Putnam and others, conservatives should feel free to pillage the ideas of pluralist thinkers outside the conservative tradition. Nisbet admits repeatedly throughout the decades of his long career that there seems …

Progressivism, Conservatism, And Democracy, William Voegeli

The Journal of Contemporary Legal Issues

“Conserve” is a transitive verb, one that conveys little unless followed by a direct object. The meaning of conservatism then, depends on what conservatives want to conserve: why it’s valuable, therefore meriting conservation; and why it’s vulnerable, therefore requiring conservation.

The answer to that question will vary from one time and place to another. During the Cold War, American conservatives bristled when newspapers referred to the most inflexible, doctrinaire Soviet leaders as the Kremlin’s “conservatives.” But this journalistic shorthand wasn’t absurd: it’s hard to identify a conservative essence discernible in all political settings. A skeptical, wary attitude regarding change …

The Use And Abuse Of Tradition: A Comment On Degirolami’S Traditionalism Rising, Andrew Koppelman

The Journal of Contemporary Legal Issues

Marc DeGirolami’s essay, Traditionalism Rising, argues that the Supreme Court is now deploying what he calls “traditionalist methodology” to decide cases, and that when it cites tradition it is following a “larger, longstanding interpretive method.”

The paper is a valuable contribution that documents an important trend. The Court is in fact invoking tradition with remarkable frequency. But it is a mistake to call what the Court is doing a single “methodology.” Tradition is relevant in different ways in different contexts. It is confusing to conflate them.

Contemporary Conservative Thought: The View From San Diego, William A. Galston

The Journal of Contemporary Legal Issues

At the conference on “Modern Conservative Political Philosophy” convened at the University of San Diego on September 16–17, 2022, eleven authors presented papers. They fall into four broad categories.

Three of the papers offer broad defenses of conservatism as it has been theorized and practiced in the United States since the 1950s. William Voegeli observes—accurately—that “by following their own premises, an increasingly postmodern Left and an increasingly premodern Right have ended up questioning the worth and feasibility of republican self-government.” This leaves the beleaguered Center, long the common ground between traditional liberals and traditional conservatives. According to Voegeli, this “increasingly …

On Preserving A Political Community In Revolutionary Times, Scott Yenor

The Journal of Contemporary Legal Issues

Among the hardest things to do in politics is to understand the current situation. Partisan loyalties cloud perspective. Political actors make overwrought charges in order to rile up their partisans. Things that seem important often are not, while small changes can lead to political revolutions. Revolutions often come without countries or political communities knowing, until it is too late.

Conservatism, Ideology, Skepticism, Brandon Turner

The Journal of Contemporary Legal Issues

The occasion for this essay concerns the prospects of modern conservative political philosophy; more directly, it calls for the provision of “a systematic and comprehensive account of conservatism.” Given our present moment, at which the political parties and institutions of the political right seem increasingly unmoored from any philosophical anchor, such an occasion appears altogether appropriate. Yet there is good reason to think that accounts of conservatism will not be systematic in the way desired and will in fact tend to rule out entirely systematic approaches—at least according to the commonplace understanding of “systematic”—to government or political philosophy. The belief—often …

Meanings, Speech Acts, And Legal Contents Produced By Plural Lawmaking Bodies, Scott Soames

The Journal of Contemporary Legal Issues

Language is both our most powerful cognitive tool and our most basic social institution, without which neither law, government, nor science would be possible. Because it is so central to nearly everything we do, its familiarity tempts us to overestimate how much we understand about the way it functions in different domains. My task is to illuminate (i) how to extract legal content from linguistic acts of lawmakers in the United States, and (ii) how this linguistically expressed content is sometimes modified by legal interpretation, when law is applied to particular cases. Although (i-ii) are grounded in facts about ordinary …

Deontology In Graphs: An Elucidation, Alec Walen

The Journal of Contemporary Legal Issues

Representing conceptual relationships in graphic form can be clarifying. The exercise can make the graph composer and the graph reader ask questions they otherwise might not have asked. Of course, graphs also require the composer to make choices: what do you put in, what do you merely approximate, what do you try to make precise, what might look more precise than you mean to be? These choices need to be explained and defended to make the graphs meaningful representational tools. But if explained and defended, graphs can provide a distinctively helpful tool, especially to those like moral philosophers who tend …

V.23-2, 2022 Masthead

The Journal of Contemporary Legal Issues

No abstract provided.

Which Inequalities Matter?, Richard J. Arneson

The Journal of Contemporary Legal Issues

Why does equality across persons matter morally? An equal split can be instrumentally useful, for example, when a parent is dividing treats among hawk-eyed children, who will squawk at unequal distribution. Does equality of some sort matter morally and noninstrumentally, for its own sake? If so, which sort? If so, on what grounds?

The claim this essay shall explore is that the equality that matters morally in itself or for its own sake is equality in the lifetime well-being enjoyed by persons. Every term in this seemingly bland formulation contains a land mine that can explode into controversy. Stepping carefully …

The Pedagogy Of "Equality", Sanford Levinson

The Journal of Contemporary Legal Issues

I was very grateful to receive an invitation to participate in the San Diego symposium on equality. The gratitude was tempered, however, by my realization that I had nothing of true value to contribute in terms of the deep theoretical problems surrounding the use (or critique) of the term “equality.” After all, “equality” has been the topic of systematic examination for roughly 2,500 years. More to the point, perhaps, is that I am scarcely an expert myself in the vast, and ever-growing, literature on the subject. As true of many other law professors, that has not kept me from writing …

Inequality Of Deservingness, Ariel Jurow Kleiman

The Journal of Contemporary Legal Issues

This Essay explores how the U.S. tax system—the primary mechanism for distributing antipoverty cash benefits—is poorly suited to evaluating recipients’ deservingness. In doing so, it defines and formalizes the concept of inequality of deservingness, which is dyadic in nature. The first form of such inequality is that of “true deservingness.” True deservingness is somewhat abstract, arising from the distributive justice frameworks that underlie antipoverty program design in the United States. In Part II, the Essay briefly describes the major federal U.S. antipoverty programs, which mostly target support to families with children, people with disabilities, and workers. Working backwards, I then …

Michael Perry, Prophet Of Progressive Collapse, Steven D. Smith

The Journal of Contemporary Legal Issues

In this essay, I will discuss these implications, and will reflect on how Michael Perry’s seemingly upbeat book can today be viewed as a harbinger of darker developments that were to come, and that are now upon us.

"Under Color Of Law"? Rogue Officials And The Real State Action Problem, Larry Alexander

The Journal of Contemporary Legal Issues

It is black letter law that violations of section one of the Fourteenth Amendment can only be committed by “the state.” For it is “the state” that the amendment commands not to abridge privileges or immunities of citizens, deprive persons of life, liberty, and property without due process of law, or deny persons equal protection of the law. And this prompts the question, how do we know when the state has acted?

One way the state acts is by legislating, by enacting rules of conduct. Lawmaking is a paradigmatically state action.

This state also acts by enforcing or implementing the …

"Hang The Kaiser:" Philosophically Mediated Explanations Of World War I By The Decisions And Actions Of Those Responsible For The War, Michael S. Moore

The Journal of Contemporary Legal Issues

There has been a long-standing curiosity about why Europe destroyed itself in 1914 by starting the catastrophe known as World War I. In the past decade some of this interest was no doubt due to the coincidental fact that one hundred years had passed since the events in question took place. But the origins of the War hold a much deeper interest than that. Part of that deeper interest stems from the perceived impact that War had on the subsequent history not only in Europe, but in the rest of the world—the Russian Revolution, the end of colonial empires, World …

What Is It For Us To Be Moral Equals? And Does It Matter Much If We're Not?, Kasper Lippert-Rasmussen

The Journal of Contemporary Legal Issues

The main concern here will be to clarify what it means for us to be moral equals (and thus what it means for us not to be so). Specifically, I want to address two questions about the nature and significance of basic moral equality. First, what is the difference between what I shall call epiphenomenal moral equality and non-epiphenomenal moral equality? This distinction is often ignored, or overlooked, and this is unfortunate because it hides from view a decision that many will seem a dilemma. If, in affirming the moral equality of all persons, we mean the non-epiphenomenal kind, moral …

Michael Perry And Disproportionate Racial Impact, Larry Alexander

The Journal of Contemporary Legal Issues

I am delighted to be contributing to this festschrift honoring Michael Perry. He and I go back a long way. He may not remember how far back, but I do. In 1980, when Michael was a faculty member at Ohio State’s law school, he organized a symposium on John Ely’s recent Democracy and Distrust, and he invited me to contribute to it, which I did. (The contributions were published in the 1981 volume of the Ohio State Law Journal.) I am not sure Michael knew me then, or why he invited me, but we have known each other and …

Relevance And Equality: An Analytical Account, Pedro Moniz Lopes

The Journal of Contemporary Legal Issues

In day-to-day life, one is compelled to compare. In replying to a question on one’s favorite things, one will group them together based on the satisfaction one is provided with, leaving out the rest. In discussing the issue of spiteful people, one is promptly reminded of some common features of individuals whose actions typically meet the required criteria (or the criteria one sets for such category). In metaphorical speech—for instance, by descriptively asserting that “no man is an island”—one grounds the assertion on past knowledge of the prototypical isolation of islands to, then, negate the transfer of such features to …

Morey And Les, George Sher

The Journal of Contemporary Legal Issues

In my book Equality for Inegalitarians, I combined a sufficientarian approach to the distribution of resources and opportunities with an egalitarian approach to the distribution of a more abstract good that I called “the ability to live one’s life effectively.” As I defined living effectively, it requires a degree of success in the pursuit of one’s rational aims, so there is an obvious danger that even if two people both have sufficient resources and opportunities, the difference in the amount by which they exceed the threshold will cause them to differ in their ability to live effectively. However, to …

Goodbye To All That: Three No-Longer-Quite-Contemporary Theories Of Equality And Something More Up-To-Date (And Worse), Maimon Schwarzschild

The Journal of Contemporary Legal Issues

The idea of equality, and even the word equality, exercises great moral and political force, but it is a notoriously protean idea. Equality can mean many things, many of them in tension with one another or utterly contradictory to each other. Nonetheless, a Lockean idea of equality has predominated in American political thought, and—imperfectly, like any ideal put into human practice—in American life throughout most of American history. The Lockean idea of equality is roughly that human beings have equal natural rights to life, liberty, and property: with the implication that political society should ensure these rights through the impartial …

Money As A Currency Of Justice, Aaron James

The Journal of Contemporary Legal Issues

Is money a “currency of justice”? That is, insofar as justice requires us to distribute something among people, is money one of those things, fundamentally speaking?

It isn’t according to many philosophers in the “currency debate,” who either assign money no fundamental importance, or at least do not unequivocally affirm its non-instrumental significance, as I’ll explain. Theory, in this respect, stands apart from ordinary opinion. Not only does money matter greatly to most of us, who has it, and who should have more or less of it—whether in dollars, euros, or renminbi—is ordinarily one of the main ways we evaluate …

Michael Perry And Human Rights, Andrew Koppelman

The Journal of Contemporary Legal Issues

Michael Perry’s lifelong project has been to give a philosophical account of human rights, beginning with its foundational basis and ending with specific prescriptions for controversial cases. His writing is notable for the moral urgency he brings to the task—an urgency that is often underscored by his conscientious willingness to engage with objections and to rethink his arguments. For most scholars, such willingness is the only opportunity we have in our work to display the virtue of courage. It is an opportunity too often declined, but never by Perry. All this makes him admirable, not only as a scholar, but …