Law and Philosophy Commons^™

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Revocation And Retribution, Jacob Schuman

Washington Law Review

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Pluralizing The "Sharing" Economy, Erez Aloni

Washington Law Review

The so-called “sharing” economy presents one of the most important and controversial regulatory dilemmas of our time—yet, surprisingly, it remains undertheorized. This Article supplies needed analysis. Specifically, the Article offers a regulatory model that distinguishes between two separate kinds of transactions: conventional economic transactions and those that rely on temporary access to goods and services that would otherwise go underutilized (what I call “access-to-excess” transactions). The regulatory regime that this Article proposes would distinguish between true access-to-excess transactions and conventional transactions. The model is rooted in a version of pluralist theory that posits that the state is responsible for cultivating …

Pluralizing The "Sharing" Economy, Erez Aloni

Washington Law Review

The so-called “sharing” economy presents one of the most important and controversial regulatory dilemmas of our time—yet, surprisingly, it remains undertheorized. This Article supplies needed analysis. Specifically, the Article offers a regulatory model that distinguishes between two separate kinds of transactions: conventional economic transactions and those that rely on temporary access to goods and services that would otherwise go underutilized (what I call “access-to-excess” transactions). The regulatory regime that this Article proposes would distinguish between true access-to-excess transactions and conventional transactions. The model is rooted in a version of pluralist theory that posits that the state is responsible for cultivating …

Wild Dreamers: Meditations On The Admissibiity Of Dream Talk, Louise Harmon

Washington Law Review

This article presents a mosaic of interrelated meditations on how judges have dealt with the admissibility of dream talk, interspersed with short digressions on the meaning of dreams from a variety of historical and cultural perspectives. In Part I, I begin with theories about dreams from Aristotle, Hobbes, and others. I then tell the story of O.J. Simpson, wild dreamer extraordinaire, interrupted by a Freudian interlude and a speculation about the theories that the jurors may have silently applied to Simpson's dreams of killing his wife. In Part II, I present three wild dreamers from family court: a husband who …

The End Of Technology: A Polemic, Louis E. Wolcher

Washington Law Review

This essay is a philosophical polemic against the essence of modern technology. The piece does not advance a Luddite's agenda, however, since it describes modern technology's essence as technological thinking, rather than as the manifold of technical instruments and processes. Technological thinking is not just careful planning towards well thought-out ends. Rather, it is an entire orientation to life, and as such it is a monstrosity: it relentlessly and heartlessly transforms the world's beings, including human beings, into measurable units of production and consumption that are constantly being judged for their contributions to "productivity." Nature is thus made into a …

Towards A Theory Of Legitimate Access: Morally Legitimate Authority And The Right Of Citizens To Access The Civil Justice System, Kenneth Einar Himma

Washington Law Review

This Article considers the issue of what the state is morally obligated to provide by way of citizen access to the civil justice system. It begins by describing the general problem of morally legitimate authority and how it bears on the problem of access to the civil justice system. It then identifies three different approaches to the general problem of morally legitimate authority and argues that none of these approaches warrants thinking that the state is morally obligated to provide each citizen with perfectly equal access to the civil justice system. The argument concludes that the three approaches to legitimacy …

Posner's Pragmatism And Payton Home Arrests, Matthew A. Edwards

Washington Law Review

In recent years, Richard A. Posner, a respected federal appellate judge and prolific scholar, has been at the vanguard of a resurgence of interest in legal pragmatism. Posner and other scholars have called for judges to expand their horizons beyond conventional legal reasoning and to embrace interdisciplinary methodology and empirical research in the legal decisionmaking process. At the same time, however, prominent jurisprudential scholars have expressed both practical and philosophical objections to Posner's controversial prescription for increased judicial reliance on social science research. This Article seeks to explore the value and limits of Posner's pragmatism and empirical inquiry in the …

Focus On Fairness, Efficiency, And The Law: Response. Efficiency And Equity: What Else Can Be Gained By Combining Coase And Rawls, Russell B. Korobkin, Thomas S. Ulen

Washington Law Review

Professors Swygert and Yanes seek to bring efficiency and equity to bear explicitly on the economic analysis of law by merging Rawlsean social contract philosophy into law and economics' basic premise, the Coase Theorem. We are in complete agreement with Swygert and Yanes that good legal policy should be concerned with both efficiency and equity, and we welcome their attempt to merge the two as a useful step in an important debate. Ultimately, though, we are unconvinced by their argument as it currently stands for two reasons. First, by focusing only on the way in which their approach might affect …

Focus On Fairness, Efficiency, And The Law: Response. An Integration Of Equity And Efficiency, Richard O. Zerbe Jr.

Washington Law Review

Swygert and Yanes, in an article in this issue of the Washington Law Review, suggest a means to achieve this integration. In this Article, I first discuss the shortcomings of the approach suggested by Swygert and Yanes. Next, I suggest a more practical approach for integrating efficiency and equity that relies on benefit cost analysis. Finally, I consider some of the cases to which Swygert and Yanes apply their analysis. The fundamental shortcoming of the Swygert and Yanes approach is that it offers little for deciding practical cases. The authors combine two abstract and heuristic proposals and quite naturally …

Focus On Fairness, Efficiency, And The Law. A Unified Theory Of Justice: The Integration Of Fairness Into Efficiency, Michael I. Swygert, Katherine Earle Yanes

Washington Law Review

An idea generally shared by both economists and philosophers is that a legal rule may either achieve distributive fairness or bring about an efficient outcome, but not both. In this Article, the authors argue that justice requires that legal rules consider both fairness and efficiency. The Article discusses the Coase Theorem, as a tool for determining the most efficient allocation of rights and duties, and the ideas of John Rawls for deriving a fair social contract. The authors then combine aspects of these two hypothetical consensus models into a unified theory of justice that considers the question of what agreements …

Pavčnik's Theory Of Legal Decisionmaking: An Introduction, Louis E. Wolcher

Washington Law Review

Professor Pavčnik is one of the most prolific and interesting of those academics from the formerly communist states of Central and Eastern Europe who are currently writing on topics germane to legal philosophy. I had the privilege of co-teaching two classes with him at the University of Ljubljana in the fall of 1996-one on legal theory and the other on the philosophy of law-and in the course of our collaboration I acquired a great deal of respect for both the man and his work. The editors of the Washington Law Review, having had the excellent judgment to want to publish …

Legal Decisionmaking As A Responsible Intellectual Activity: A Continental Point Of View, Marijan Pavčnik

Washington Law Review

The legal decision in a concrete case is never completely given in advance in the statute. A theory of legal decisionmaking that sees the decider as someone who merely "applies the law" is inadequate to explain what goes on in the process of legal decisionmaking. The legal decision is a value synthesis assessing the normative starting point with regard to the factual starting point, and vice versa. This means that a legal decision can only be made when the normative state of constituent facts of the case has been formed on the basis of the statute, when from the life …

The Many Meanings Of "Wherefore" In Legal History, Louis E. Wolcher

Washington Law Review

This essay describes the strategies that sometimes allow me to make sense of the answers that people give to the question Why? when it comes up in scholarly accounts of legal outcomes from the past. The essay is constructive, not deconstructive; programmatic, not polemical. I mean to sketch and recommend a way of thinking about legal history that I call methodological self-consciousness. "Methodological individualism" would be both inaccurate and accurate as a label for the essay's approach to questions of causality. The label is inaccurate, because it fails to express the heavy emphasis that I place on the dialectical relationship …

A Pragmatic Model Of Law, Daniel C.K. Chow

Washington Law Review

While all of us are pragmatic in an informal or colloquial sense in many instances in daily life, pragmatism as applied to law has a deeper, jurisprudential sense The author suggests that modern legal pragmatism presents a model of law that avoids the serious philosophical errors of the traditional model of law, which is based upon assumptions that are untenable in light of fundamental developments in twentieth century thought. The traditional model justifies law by grounding law in eternal, immutable and transcendental foundations. All modern legal pragmatists reject the notion that transcendental foundations sustain law. Modern legal pragmatism arose in …

Autonomy And The Legal Control Of Self-Regarding Conduct, William C. Powers, Jr.

Washington Law Review

My purpose in this essay is to criticize Mill's principle of liberty as a limit on the legitimate scope of legal coercion. I shall do so not by focusing on previously examined justifications for frustrating individually chosen lifestyles, but rather by examining the arguments in favor of the principle of liberty itself. I shall argue that at least two of its principal bases do not support its conclusion that communally determined elements of lifestyle cannot be legitimately imposed on unwilling individuals except to prevent harm to others. Indeed, these bases are fully consistent with the imposition of communally rather than …

Jurisprudence And The Nature Of Language: Contrasting Views Of Hart And Chomsky, Anon

Washington Law Review

Because much of modern philosophy has been preoccupied with some form of language analysis and because jurists often apply philosophical techniques and insights when attempting to solve jurisprudential problems, theories or views of the nature of language have considerable jurisprudential significance. The point is illustrated by the recent movement toward using the methods of "ordinary language" philosophy in the analysis of legal problems. The pattern is not new; a roughly similar relationship is seen in positivism and its application in jurisprudence. The notion behind this approach is that an understanding of the nature of language contributes to the solution of …

Jurisprudence And The Nature Of Language: Contrasting Views Of Hart And Chomsky, Anon

Washington Law Review

Because much of modern philosophy has been preoccupied with some form of language analysis and because jurists often apply philosophical techniques and insights when attempting to solve jurisprudential problems, theories or views of the nature of language have considerable jurisprudential significance. The point is illustrated by the recent movement toward using the methods of "ordinary language" philosophy in the analysis of legal problems. The pattern is not new; a roughly similar relationship is seen in positivism and its application in jurisprudence. The notion behind this approach is that an understanding of the nature of language contributes to the solution of …

What Is Justice?, By Hans Kelsen (1957), M. Maurice Orona

Washington Law Review

The critic of Kelsen enjoys the unenviable position of crossing swords with the lordly; and so one is tempted to concede value to his works rather than to analyze that work as distinct from the aura of the author.

Moral Obligation As Consideration For A Promise In Washington, Robert L. Palmer

Washington Law Review

Moral obligation has been defined as a duty which one owes and which he ought to perform, but which he is not legally bound to fulfill. In order better to understand this doctrine as applied specifically to the Washington cases and law, let us consider the history and a brief statement of the principle.