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Articles 1 - 22 of 22
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 …
Law00520 Philosophy Of Law, 3rd Edition, Anne Schillmoller
Law00520 Philosophy Of Law, 3rd Edition, Anne Schillmoller
Anne Schillmoller
Philosophy, not jurisprudence Note that this is not a ‘jurisprudence’ unit. The reasons why will be discussed in detail in topic 1. Briefly, jurisprudence approaches questions about law from an ‘internal’ or ‘inside’ perspective, that is, one which seeks a conceptual basis for law from within law itself.This unit, however, aims to situate ideas about law and justice within a broader range of philosophical contexts. While traditional jurisprudence provides insights into particular theoretical movements within Anglo-Australian law, it fails to interrogatebroader philosophical frameworks or ‘external’ perspectives which inform thisjurisprudence. It is these broader frameworks which are the central concern of …
Heidegger And The Essence Of Adjudication, George Souri
Heidegger And The Essence Of Adjudication, George Souri
George Souri
This paper presents an account of adjudication based on the philosophy of Martin Heidegger. As this paper argues, we can only hope to better understand adjudication if we recognize that adjudication is a socio-temporally situated activity, and not a theoretical object. Heidegger’s philosophical insights are especially salient to such a project for several reasons. First, Heidegger’s re-conception of ontology, and his notion of being-in-the-world, provide a truer-to-observation account of how human beings come to understand their world and take in the content of experience towards completing projects. Second, Heidegger’s account of context, inter-subjectivity, and common understanding provide a basis upon …
Collective Choice, Justin Schwartz
Collective Choice, Justin Schwartz
Justin Schwartz
This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …
American Legal Realism: Sound And Fury Signifying Nothing?, Wouter H. De Been
American Legal Realism: Sound And Fury Signifying Nothing?, Wouter H. De Been
Wouter H. de Been
No abstract provided.
Children's Oppression, Rights And Liberation, Samantha Godwin
Children's Oppression, Rights And Liberation, Samantha Godwin
Samantha Godwin
This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …
Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd
Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd
Reid G. Fontaine
Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative, that …
The Promise And Paradox Of Max Weber's Legal Sociology: The "Categories Of Legal Thought" As Types Of Meaningful Action And The Persistence Of The Problem Of Judicial Legisaltion, Faisal Chaudhry
Faisal Chaudhry
Unsurpassed in its ambition and historical scope, Max Weber's legal sociology centers around the four "categories of legal thought" that follow from his distinction between formal and substantive modes of rationality and irrationality in the conduct of lawfinding and lawmaking activity. At the same time, Weber's general sociology is built around four ideal types of possible meaningful conduct by individual actors, ranging from the instrumentally rational to the affective. Despite its visibility, the lack of meaningful connection Weber makes between these two categorical schemes has never adequately been remedied or even explained by his inheritors. This article seeks to do …
Law Is Not (Best Considered) An Essentially Contested Concept, Kenneth M. Ehrenberg
Law Is Not (Best Considered) An Essentially Contested Concept, Kenneth M. Ehrenberg
Kenneth M Ehrenberg
I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for …
Thoughts On The Divergence Of Contract And Promise, Ian C. Bartrum
Thoughts On The Divergence Of Contract And Promise, Ian C. Bartrum
Ian C Bartrum
This essay offers some brief thoughts on Seana Shiffrin's recent work regarding the divergence of contractual and promissory norms. I conclude that Shiffrin does not do enough to separate and account for the different consequentalist and deontological justifications underlying each institution, and does not do enough to explain how promises give rise to the "moral" duties she posits. I suggest, instead, that the divergence between contract and promise is justified by the different roles each institution plays in our lives, and that, in fact, keeping strictly promissory duties outside the scope of state coercion actually facilitates a strong culture of …
Why The Demands Of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals, Daniel Hornal
Why The Demands Of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals, Daniel Hornal
Daniel Hornal
Proponents of New Originalism propose that their modifications solve the indeterminacy and predictability problems inherent in early conceptions of originalism. This paper argues that excluding extrinsic evidence and relying only on the formal implications of the text merely switches one indeterminacy and predictability problem for another. Rules inherently carry implications unknown to rule writers. In the case of open-textured rules such as those in the Constitution, a broad reading can occupy whole fields of law, whereas a narrow reading can have almost no real-world effects. Because they must ignore extrinsic evidence, new originalists are almost unbound in their choice of …
'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 …
The Rise Of The Common Law Of Federal Pleading: Iqbal, Twombly And The Application Of Judicial Experience, Henry S. Noyes
The Rise Of The Common Law Of Federal Pleading: Iqbal, Twombly And The Application Of Judicial Experience, Henry S. Noyes
Henry S. Noyes
With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief...will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand …
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.