Jurisprudence Commons^™

Rights-Based Theories Of Accident Law, Gregory J. Hall

All Faculty Scholarship

This article shows that extant rights-based theories of accident law contain a gaping hole. They inadequately address the following question: What justifies using community standards to assign accident costs in tort law?

In the United States, the jury determines negligence for accidental harm by asking whether the defendant met the objective reasonable person standard. However, what determines the content of the reasonable person standard is enigmatic. Some tort theorists say that the content is filled out by juries using cost benefit analysis while others say that juries apply community norms and conventions. I demonstrate that what is missing from this …

Socioeconomic Rights And Theories Of Justice, Jeremy Waldron

San Diego Law Review

This Article considers the relation between theories of justice - such as John Rawls's theory - and theories of socioeconomic rights. In different ways, these two kinds of theories address much of the same subject matter. But they are quite strikingly different in format and texture. Theories of socioeconomic rights defend particular line-item requirements: a right to this or that good or opportunity, such as housing, health care, education, and social security. Theories of justice tend to involve a more integrated normative account of a society's basic structure, though they differ considerably among themselves in their structure. So how exactly …

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 …

The Rule Of Law In Global Governance: Its Normative Construction, Function And Import, Gianluigi Palombella

Gianluigi Palombella

What does the Rule of law contribute in the frame of global governance? While addressing metamorphoses of law and the multiple legalities in the global context, this paper shows that the rule of law can consistently be extended externally being cherished internally. It takes seriously the concurrence of different legalities in their diverse ‘formats’, and the challenge of the “global administrative law” theoretical and empirical model. At the meta-level of the relations among legalities, the Rule of law has an essential role to play: it affects interactions and interdependence,and can cause content-dependent assessments to develop, without supporting self-closure or monistic …

On The Connection Between Law And Justice, Anthony D'Amato

Faculty Working Papers

What does it mean to assert that judges should decide cases according to justice and not according to the law? Is there something incoherent in the question itself? That question will serve as our springboard in examining what is—or should be—the connection between justice and law. Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a …

Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Katherine R. Kruse

Scholarly Works

The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality, and justice. Unfortunately, in the process, the field of theoretical legal ethics has mostly lost track of the thing that Freedman insisted was at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. As I will discuss, the field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. I am going …