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Articles 1 - 11 of 11
Full-Text Articles in Jurisprudence
The Hollowness Of The Harm Principle, Steven D. Smith
The Hollowness Of The Harm Principle, Steven D. Smith
Steven D. Smith
Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …
The Tenuous Case For Conscience, Steven D. Smith
The Tenuous Case For Conscience, Steven D. Smith
Steven D. Smith
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …
Holmes And Dissent, Allen P. Mendenhall
Holmes And Dissent, Allen P. Mendenhall
Allen Mendenhall
Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Holmes’s dissents were sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and …
The Twentieth Century, Daniel R. Coquillette
The Twentieth Century, Daniel R. Coquillette
Daniel R. Coquillette
All self-respecting legal history is supposed to end by the twentieth century. As we approach our own lives, experience and training—and those events that we have actually witnessed—we allegedly lose that "objectivity" which makes the "science" of history itself possible. Certainly, there is no point in burdening the reader with the "original" materials, including cases and statutes, that make up the bulk of any legal education. But there are good reasons to reflect on our own legal century from an "historical perspective."
Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein
Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein
Richard Daniel Klein
No abstract provided.
Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray
Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray
David C. Gray
How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …
Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber
Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber
David C. Gray
In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure …
'Mass Of Madness': Jurisprudence In E.M. Forster's A Passage To India, Allen P. Mendenhall
'Mass Of Madness': Jurisprudence In E.M. Forster's A Passage To India, Allen P. Mendenhall
Allen Mendenhall
Law-and-literature scholars have paid scant attention to E. M. Forster’s oeuvre, which abounds in legal information and which situates itself in a unique jurisprudential context. Of all his novels, A Passage to India (1924) interrogates the law most rigorously, especially as it implicates massive programs of ‘liberal’ imperialism and ‘humanitarian’ intervention, as well as less grand but equally dubious legal apparatuses – jail, bail, discovery, courtrooms – that police and pervert Chandrapore, the fictional Indian city in which the novel is set. The study of law in Anglo-India is particularly telling, if troubling, because India served as ‘a model for …
Transnational Law: An Essay In Definition With A Polemic Addendum, Allen P. Mendenhall
Transnational Law: An Essay In Definition With A Polemic Addendum, Allen P. Mendenhall
Allen Mendenhall
What is transnational law? Various procedures and theories have emanated from this slippery signifier, but in general academics and legal practitioners who use the term have settled on certain common meanings for it. My purpose in this article is not to disrupt but to clarify these meanings by turning to literary theory and criticism that regularly address transnationality. Cultural and postcolonial studies are the particular strains of literary theory and criticism to which I will attend. To review “transnational law,” examining its literary inertia and significations, is the objective of this article, which does not purport to settle the matter …
Shakespeare's Place In Law-And-Literature, Allen P. Mendenhall
Shakespeare's Place In Law-And-Literature, Allen P. Mendenhall
Allen Mendenhall
Nearly every Anglo-American law school offers a course called Law-and-Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow. This …
Book Review - 'The Language Of Statutes' By Lawrence M. Solan, Brian Christopher Jones
Book Review - 'The Language Of Statutes' By Lawrence M. Solan, Brian Christopher Jones
Brian Christopher Jones
No abstract provided.