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Full-Text Articles in Legal History
Scottish Common Sense And Nineteenth-Century American Law: A Critical Appraisal, John Mikhail
Scottish Common Sense And Nineteenth-Century American Law: A Critical Appraisal, John Mikhail
Georgetown Law Faculty Publications and Other Works
One overriding concern I have with Susanna Blumenthal's insightful and stimulating article, "The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law," is whether there is anything sufficiently distinctive about Scottish Common Sense philosophy that justifies the role Blumenthal ascribes to it. One could probably replace "Common Sense philosophy" in Blumenthal's formulation with something as diffuse as "The Enlightenment," or even "Western jurisprudence," without significantly altering its import, because the assumption that rational and moral faculties are innate and universal is common to most writers in these traditions. There are subtle differences …
Constitutional Possibilities, Lawrence B. Solum
Constitutional Possibilities, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable--whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans …
After The Reasonable Man: Getting Over The Subjectivity Objectivity Question, Victoria Nourse
After The Reasonable Man: Getting Over The Subjectivity Objectivity Question, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
This article challenges the conventional notion of the “reasonable man.” It argues that we make a category mistake when we adopt the metaphor of a human being as the starting point for analysis of the criminal law and instead offers an alternate approach based on heuristic theory, reconceiving the reasonable man as a heuristic that serves as the site for debate over majoritarian norms. The article posits that the debate over having a purely subjective standard and a purely objective standard obscures the commonsense necessity of having a hybrid standard, one which takes into account the characteristics of a particular …