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Full-Text Articles in Legal History

Argument And The "Moral Impact" Theory Of The Law, Alani Golanski Jan 2019

Argument And The "Moral Impact" Theory Of The Law, Alani Golanski

Washington University Jurisprudence Review

The innovative Moral Impact Theory (“MIT”) of law claims that the

moral impacts of legal institutional actions, rather than the linguistic

content of “rules” or judicial or legislative pronouncements, determine

law’s content. MIT’s corollary is that legal interpretation consists in the

inquiry into what is morally required as a consequence of the lawmaking

actions.

This paper challenges MIT by critiquing its attendant view of the

nature of legal interpretation and argument. Points include the following:

(1) it is not practicable to predicate law’s content on the ability of legal

officials to resolve moral controversies; (2) it would ...


Are We Adopting The Orphans, Or Creating Them? Medical Ethics And Legal Jurisprudential Guidance For Proposed Changes To The Orphan Drug Act, Lydia Raw Jan 2017

Are We Adopting The Orphans, Or Creating Them? Medical Ethics And Legal Jurisprudential Guidance For Proposed Changes To The Orphan Drug Act, Lydia Raw

Washington University Jurisprudence Review

This Note traces the subtle changes in the underlying purposes of the Orphan Drug Act, and evaluates those purposes from the perspectives of medical ethics and legal jurisprudence. Part I begins with the history of the Orphan Drug Act discussed issue by issue, to elucidate the subtle changes in the purpose of the Orphan Drug Act through its history. Part II explores the moral and ethical issues presented by the Orphan Drug Act to identify eleven guiding principles from medical ethics and legal jurisprudence. Lastly, Part III applies these guiding principles to the most common proposed amendments to the Orphan ...


Can Law Be A Source Of Insight For Other Academic Disciplines?, Stephen M. Feldman Jan 2016

Can Law Be A Source Of Insight For Other Academic Disciplines?, Stephen M. Feldman

Washington University Jurisprudence Review

Law has been a borrower but not a supplier. Law schools, in effect, have been located on one-way streets, with ideas flowing in but nothing going out. This essay is intended to begin a dialogue that could change the one-way streets between law schools and other university departments into two-way streets. I want to demonstrate that legal and jurisprudential studies can be a source of ideas for scholars in other fields. In particular, this essay argues that the legal concept of the burden of proof can illuminate disputes between theorists of modernism and postmodernism.


Kant’S Categorical Imperative And Mandatory Minimum Sentencing, Craig Turner Jan 2016

Kant’S Categorical Imperative And Mandatory Minimum Sentencing, Craig Turner

Washington University Jurisprudence Review

Deterrence-based punishment systems are scattered throughout history, and exist in the American legal system today. One such method of deterrence prescribes mandatory punishments for violations of certain crimes, without regarding to underlying circumstances or an assessment of the the individual accused of such crimes. These types of sentencing requirements restrict judicial discretion and are designed to serve as an example for other would-be offenders. While perhaps justifiable under a utilitarian code of ethics, mandatory minimums are morally suspect when assessed through the lens Immanuel Kant’s Categorical Imperative.

The fundamental premise of the second formulation of Kant’s Categorical Imperative ...


Salus Populi Suprema Lex Esto: Balancing Civil Liberties And Public Health Interventions In Modern Vaccination Policy, Phoebe E. Arde-Acquah Jan 2015

Salus Populi Suprema Lex Esto: Balancing Civil Liberties And Public Health Interventions In Modern Vaccination Policy, Phoebe E. Arde-Acquah

Washington University Jurisprudence Review

Vaccine policy still stirs up similar contentions and controversial sentiments today as it did in 1905 due to the enduring tension between public health interventions and individual liberties, between the rights of the individual and the claims of the collective. This Note considers the rationale for granting vaccine exemptions in one case, but withholding them in another; why one court gives substantial deference to state power regarding vaccination, and another demonstrates considerable regard for civil liberties in vaccine policy.

It has been suggested that pragmatism and political acuity, rather than a doctrinal adherence to epidemiological theory or ethical principles has ...


Punishment In The State Of Nature: John Locke And Criminal Punishment In The United States Of America, Matthew K. Suess Jan 2015

Punishment In The State Of Nature: John Locke And Criminal Punishment In The United States Of America, Matthew K. Suess

Washington University Jurisprudence Review

No abstract provided.


Two Dogmas Of Originalism, Ian Bartrum Jan 2015

Two Dogmas Of Originalism, Ian Bartrum

Washington University Jurisprudence Review

In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics.” Quine demonstrated that the positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the ...


The Origins Of The Pursuit Of Happiness, Carli N. Conklin Jan 2015

The Origins Of The Pursuit Of Happiness, Carli N. Conklin

Washington University Jurisprudence Review

Scholars have long struggled to define the meaning of the phrase “the pursuit of happiness” in the Declaration of Independence. The most common understandings suggest either that the phrase is a direct substitution for John Locke’s conception of property or that the phrase is a rhetorical flourish that conveys no substantive meaning. Yet, property and the pursuit of happiness were listed as distinct—not synonymous—rights in eighteenth-century writings. Furthermore, the very inclusion of “the pursuit of happiness” as one of only three unalienable rights enumerated in the Declaration suggests that the drafters must have meant something substantive when ...