Law Commons^™

The Conceptual Problems Arising From Legal Pluralism, Jorge Luis Fabra-Zamora

Journal Articles

This paper argues that analytical jurisprudence has been insufficiently attentive to three significant puzzles highlighted by the legal pluralist tradition: the existence of commonalities between different types of law, the possibility of a distinction between law and non-law, and the explanatory centrality of the state. I further argue that the resolution of these questions sets the stage for a renewed agenda of analytical jurisprudence and has to be considered in attempts for reconciliation between the academic traditions of analytical jurisprudence and legal pluralism, often called “pluralist jurisprudence.” I also argue that the resolution of these problems affects the empirical, doctrinal, …

Legal Positivism As A Theory Of Law’S Existence: A Comment On Margaret Martin’S "Judging Positivism", Jorge Luis Fabra-Zamora

Journal Articles

This comment critically examines the conception of legal positivism that informs Margaret Martin’s interesting and multilayered challenge against the substance and method of this intellectual tradition. My central claim is that her characterization of the substantive theory of legal positivism sets aside a more fundamental and explanatory prior dimension concerning the positivist’s theory of the existence of legal systems and legal norms. I also argue that her understanding of the positivist’s descriptive methodology as a nonnormative project is too demanding and overlooks both the relationships between law and morality recognized by contemporary legal positivists and the pivotal distinction between internal …

Legal Pluralism And Analytical Jurisprudence: An Inapposite Contrast, Jorge Luis Fabra-Zamora

Journal Articles

The intellectual tradition of legal pluralism characterizes itself by way of a contrast to legal centralism or monism. Self-styled pluralists typically attribute centralist and monist views to mainstream theories of law, which I call here analytical jurisprudence. This article argues that the pluralist foundational contrast with analytical jurisprudence suffers from three recurrent defects. First, the pluralist opposition to analytical jurisprudence conflates conceptual questions with empirical, doctrinal, and politico-moral inquiries. Second, pluralists misattribute to analytical jurisprudents an equation between law and state that they do not hold and have the resources to reject. Third, pluralists address the conceptual problems of legal …

The Puzzle Of Inciting Suicide, Guyora Binder, Luis E. Chiesa

Journal Articles

In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only 15 months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires us …

The Theory And Practice Of Contestatory Federalism, James A. Gardner

Journal Articles

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …

Mens Rea In Comparative Perspective, Luis E. Chiesa

Journal Articles

This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. …

Wilfrid J. Waluchow: El Positivismo Incluyente Y El Constitucionalismo Del “Árbol Vivo” [Wilfrid J. Waluchow: Inclusive Legal Positivism And The Understanding Of Constitutionalism In The Living Three], Jorge Luis Fabra-Zamora

Journal Articles

Este artículo presenta los dos temas centrales de la filosofía del derecho de Wilfrid J. Waluchow –el positivismo incluyente y el constitucionalismo del “árbol vivo”– con una exposición crítica de sus principales tesis, los contextos en los que surgen y las principales objeciones y desaf íos a los que aún deben responder.

[This paper addresses the two main Wilfred J. Waluchow’s research interests on philosophy of law, namely Inclusive Legal Positivism and the Constitutionalism presented in The Living Tree. The author provides us with a critical exposition of Waluchow’s main theses and a proper background where Waluchow’s philosophy is set, …

How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen

Journal Articles

This Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study of over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers, and legislative debates, this Article argues that early Americans almost never used “prerogative” as …

The Interactive Dynamics Of Transnational Business Governance: A Challenge For Transnational Legal Theory, Stepan Wood, Kenneth W. Abbott, Julia Black, Burkard Eberlein, Errol E. Meidinger

Journal Articles

Conflict, convergence, cooperation, competition and other interactions among governance actors and institutions have long fascinated scholars of transnational law, yet transnational legal theorists’ accounts of such interactions are for the most part tentative, incomplete and unsystematic. Having elsewhere proposed an overarching conceptual framework for the study of transnational business governance interactions (TBGI), in this article we propose criteria for middle-range theory-building. We argue that a portfolio of theoretical perspectives on transnational governance interactions should account for the multiplicity of interacting entities and scales of interaction; the co-evolution of social agency and structure; the multiple components of regulatory governance; the role …

Philosophical Inquiry And Social Practice, John Henry Schlegel

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Three Globalizations: An Essay In Inquiry, John Henry Schlegel

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Structural Overdelegation In Criminal Procedure, Anthony O'Rourke

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In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …

How The "Unintended Consequences" Story Promotes Unjust Intent And Impact., Martha T. Mccluskey

Journal Articles

In the guise of critical analysis of the limits of law reform, the familiar phrase “unintended consequences” serves to rationalize rising inequality and to undermine democratic accountability. This paper examines how the phrase promotes a story of disentitlement, using the recent financial crisis as an example. By naturalizing inequality as power beyond law’s reach, this phrase’s message that benign law is likely to bring unequal consequences dovetails with a seemingly contradictory message that benign intent, rather than harmful impact, is what primarily counts for evaluating inequality.

As part of a LatCrit XV symposium taking a “bottom-up” view of the recent …

Together Again, John Henry Schlegel

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How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources …

American Legal Theory And American Legal Education: A Snake Swallowing Its Tail?, John Henry Schlegel

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The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Journal Articles

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …

Principios, Moral Y Positivismo Jurídico: Respuestas Y Redefinición Del Positivismo Contemporáneo [Principles, Morality And Legal Positivism], Jorge Luis Fabra-Zamora

Journal Articles

El objetivo de este escrito es hacer una esbozar la evolución del positivismo jurídico desde las críticas de Dworkin. La idea principal es servir como una introducción a este importante debate de la Filosofía del Derecho. El autor parte de una elucidación del Problema Original, analiza las respuestas incluyentes y excluyentes del Positivismo y Finaliza con la tesis que fueron los principios los causantes de la redefinición del Positivismo Jurídico.

[This paper seeks to sketch the evolución of Legal Positivism since Dworkin criticism. The main idea is to serve as an introduction of this current debate in Legal Philosophy. The …

For Peter, With Love, John Henry Schlegel

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Why Is It A Crime To Stomp On A Goldfish? - Harm, Victimhood And The Structure Of Anti-Cruelty Offenses, Luis E. Chiesa

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Competitive Supragovernmental Regulation: How Could It Be Democratic?, Errol E. Meidinger

Journal Articles

This paper explores the possibility that a developing form of regulatory governance is also sketching out a new form of anticipatory regulatory democracy. 'Competitive supra-governmental regulation' is largely driven by non-state actors and is therefore commonly viewed as suffering a democracy deficit. However, because it stresses broad participation, intensive deliberative procedures, responsiveness to state law and widely accepted norms, and competition among regulatory programs to achieve effective implementation and widespread public acceptance, this form of regulation appears to stand up relatively well under generally understood criteria for democratic governance. Nonetheless, a more satisfactory evaluation will require a much better understanding …

Drawing Back From The Abyss, Or Lessons Learned From Count Von Count, John Henry Schlegel

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Una Visita Al Debate Hart-Dworkin [Revisiting The Hart–Dworkin Debate], Jorge Luis Fabra-Zamora

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Cls Wasn't Killed By A Question, John Henry Schlegel

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But Pierre, If We Can't Think Normatively, What Are We To Do?, John Henry Schlegel

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Of Duncan, Peter And Thomas Kuhn, John Henry Schlegel

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Langdell's Auto-Da-Fé, John Henry Schlegel

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The Politics Of Virtue: Animals, Theology, And Abortion, Elizabeth B. Boyer, Alan Freeman

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A Republican Agenda For Hobbesian America?, Elizabeth B. Mensch, Alan Freeman

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No abstract provided.

Notes Toward An Intimate, Opinionated, And Affectionate History Of The Conference On Critical Legal Studies, John Henry Schlegel

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No abstract provided.