Social and Behavioral Sciences Commons^™

Reconstructing World Politics: Norms, Discourse, And Community, Sungjoon Cho

All Faculty Scholarship

This Article argues that the conventional (rationalist) approach to world politics characterized by political bargain cannot fully capture the new social reality under the contemporary global ambience where ideational factors such as ideas, values, culture, and norms have become more salient and influential not only in explaining but also in prescribing state behaviors. After bringing rationalism’s paradigmatic limitations into relief, the Article offers a sociological framework that highlights a reflective, intersubjective communication among states and consequent norm-building process. Under this new paradigm, one can understand an international organization as a “community” (Gemeinschaft), not as a mere contractual instrument of its …

Aspects Of Deconstruction: The Failure Of The Word "Bird", Anthony D'Amato

Faculty Working Papers

Lawyers and judges often become impatient with those who dispute what they regard as the clear meaning of words. The meaning of words derives from the contexts in which they are employed, and we can never be certain of the context because we cannot enter into the minds of other persons to see the contexts to which their minds are adverting.

Aspects Of Deconstruction: Thought Control In Xanadu, Anthony D'Amato

Faculty Working Papers

Nearly every case in nearly every legal system is a case where the factfinder—that is, the judge or jury—must decide what was going on in the minds of the litigants. For example, every criminal case turns on mens rea—a guess that the defendant harbored thoughts amounting to criminal intent. Tort cases involve the intention of the defendant, or at least his reckless indifference to risk. Estate cases require the probate court to assess the intent of the testator. Antitrust cases involve the question whether there was an intent to form a combination in restraint of trade. I can't think of …

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

A Few Steps Toward An Explanatory Theory Of International Law, Anthony D'Amato

Faculty Working Papers

If any one sentence about international law has stood the test of time, it is Louis Henkin's: "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." If this is true, why is this true? What makes it true? How do nations invent rules that then turn around and bind them? Are international rules simply pragmatic and expedient? Or do they embody values such as the need for international cooperation? Is international law a mixed game of conflict and cooperation because of its rules, or do its rules make …

Aspects Of Deconstruction: The "Easy Case" Of The Under-Aged President, Anthony D'Amato

Faculty Working Papers

When the deconstructionist says that all cases are to some degree problematic, the mainstream legal scholar gleefully pulls out a favorite crystal-clear case and asserts "not this one!" Judging from the law review commentary, the most popular of these "easy cases" concerns the constitutional mandate that the President shall be at least thirty-five years of age. Deconstructionists say that all interpretation depends on context. Radical deconstructionists add that, because contexts can change, there can be no such thing as a single interpretation of any text that is absolute and unchanging for all time.

easy case, deconstruction in law, US Constitution …

Aspects Of Deconstruction: Refuting Indeterminacy With One Bold Thought, Anthony D'Amato

Faculty Working Papers

Deconstruction has already happened on the Supreme Court. Not only can no member of the Court really believe that "the law" (self-invented by the very Court it is supposed to govern!) can constrain the result in any individual case, but its members have also convinced themselves that they have no time to be concerned with dispensing justice to the parties. The justificatory legal language used in judicial opinions is not what our law teachers told us it was. The justificatory legal language is not provided to explain—much less constrain—the result in the case. Rather, it is a mode of couching …

Is International Law Part Of Natural Law?, Anthony D'Amato

Faculty Working Papers

The affinity of international law to natural law goes back a long way to the classic writers of international law. "Natural law" is the method of dispute resolution based on a conscious attempt to perpetuate past similarities in dispute resolution. "International law" has a deep affinity to this natural law method, for it consists of those practices that have "worked" in inter-nation conflict resolution.

Can Any Legal Theory Constrain Any Judicial Decision?, Anthony D'Amato

Faculty Working Papers

A growing number of legal scholars have recently revived the American legal realist thesis that legal theory does not dictate the result in any particular case because legal theory itself is indeterminate. A more radical group has added that theory can never constrain judicial practice. I will present a spectrum of types of legal theories to demonstrate that the position of the more radical group of writers is correct—that legal theory is inherently incapable of identifying which party should win any given case.

Pragmatic Indeterminacy, Anthony D'Amato

Faculty Working Papers

If, as a result of taking Indeterminacy seriously, we revolutionize the way we teach law and the way we select judges, then we will also revolutionize the way cases are litigated (because the new judges will expect to hear a different kind of argumentation) and the way people order their lives in anticipation of the way their disputes will be decided by these new judges.

There Is No Norm Of Intervention Or Non-Intervention In International Law, Anthony D'Amato

Faculty Working Papers

Comments on Prof. Jianming Shen's position that humanitarian intervention is unlawful under international law and that there is a principle of non-intervention in international law that is so powerful that it amounts to a jus cogens prohibition.

Legal Realism Explains Nothing, Anthony D'Amato

Faculty Working Papers

I argue that American legal realism as derived from Oliver Wendell Holmes's prediction theory of law was misinterpreted, and that a deeper examination of law-as-prediction might help to reduce the pathology of judicial lawmaking that has been the unfortunate consequence of legal realism.

The Speluncean Explorers--Further Proceedings, Anthony D'Amato

Faculty Working Papers

Lon L. Fuller's The Case of the Speluncean Explorers is a classic in jurisprudence. The case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Fuller are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis".

The Limits Of Legal Realism, Anthony D'Amato

Faculty Working Papers

This article will address some criticisms of legal realism, primarily those of H.L.A. Hart, that have been unanswered in the literature and have appeared to discredit the realist approach to law. The article will also articulate what I believe to be more difficult problems with legal realism.

Legal Uncertainty, Anthony D'Amato

Faculty Working Papers

Legal certainty decreases over time. Rules and principles of law become more and more uncertain in content and in application because legal systems are biased in favor of unravelling those rules and principles. In this article I attempt to show what these biases are, and why commentators who have argued that the law tends toward certainty are wrong, then describe various attempts which have been made at restoring certainty, and why these attempts have generally not worked. My conclusion is that these proposals are at best holding actions, and that the tendency toward increasing uncertainty in the law is inexorable.

Is Equality A Totally Empty Idea?, Anthony D'Amato

Faculty Working Papers

Comments on Westen article The Empty Idea of Equality. The only way we know what direction to move in making reductions and increases in burdens is to have a concept of equality in mind. The only way we can know that one burden is 'great' and another burden is 'considerably lesser,' to use the words in Westen's standard, is to compare the burdens. But comparison presupposes a measure of equality, for we cannot know that one burden is greater than another unless we first have a concept of when the two burdens are equal. Westen's standard, therefore, is logically posterior …

Taking Distribution Seriously, Robert C. Hockett

Cornell Law Faculty Working Papers

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing.

To attend systematically to the inter-translatability of maximization language on …

Paying To Save: Tax Withholding And Asset Allocation Among Low- And Moderate-Income Taxpayers, Michael S. Barr, Jane Dokko

Law & Economics Working Papers Archive: 2003-2009

We analyze the phenomenon that low- and moderate-income (LMI) tax filers exhibit a “preference for over-withholding” their taxes, a measure we derive from a unique set of questions administered in a dataset of 1,003 households, which we collected through the Survey Research Center at the University of Michigan. We argue that the relationship between their withholding preference and portfolio allocation across liquid and illiquid assets is consistent with models with present-biased preferences, and that individuals exhibit self-control problems when making their consumption and saving decisions. Our results support a model in which individuals use commitment devices to constrain their consumption. …

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Cornell Law Faculty Working Papers

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE).

A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

"Anticipatory Self-Defense" And Other Stories, Jeanne M. Woods, James M. Donovan

Law Faculty Scholarly Articles

We argue that the specious justification for the invasion of Iraq -- a war based on a pretext of anticipatory self-defense -- necessarily exacerbates the inherent tendency of war to dehumanize and humiliate the enemy. This tendency is particularly evident in the variant of anticipatory self-defense that we have denominated as "capacity preemption," a type of claim that by definition depends upon characterizations of the opponent as utterly inhuman.

The Bush Doctrine tells a timeless story of self-defense. This story is shaped by an identifiable and predictable narrative structure, one that is able to transform the morally outrageous -- an …

Social Security, Generational Justice, And Long-Term Deficits, Neil H. Buchanan

Rutgers Law School (Newark) Faculty Papers

This paper assesses current methods for evaluating the long-term viability and desirability of government activities, especially Social Security and other big-ticket budget items. I reach four conclusions: (1) There are several simple ways to improve the current debate about fiscal policy by adjusting our crude deficit measures, improvements which ought not to be controversial, (2) Separately measuring Social Security’s long-term balance is inappropriate and misleading, (3) The methods available to measure very long-term government financing (Fiscal Gaps and their cousins, Generational Accounts) are of very limited value in setting public policy today, principally because there is no reliable baseline of …

What Is Fiscal Responsibility? Long-Term Deficits, Generational Accounting, And Capital Budgeting, Neil H. Buchanan

Rutgers Law School (Newark) Faculty Papers

This article assesses three basic approaches to assessing the future effects of the government’s fiscal policies: traditional measures of the deficit, measures associated with Generational Accounting, and measures derived from applying Capital Budgeting to the federal accounts. I conclude that Capital Budgeting is the best of the three approaches and that Generational Accounting is the least helpful. Acknowledging that there might be some value in learning what we can from a variety of approaches to analyzing fiscal policy, I nevertheless conclude that Generational Accounting is actually a misleading or--at best--empty measure of future fiscal developments. The best approach to providing …

The Moral Dilemma Of Positivism, Anthony D'Amato

Faculty Working Papers

I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labelling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have …

The Neo-Positivist Concept Of International Law, Anthony D'Amato

Faculty Working Papers

The question "Is international law really law?" has not proved troublesome, according to Hart, because "a trivial question about the meaning of words has been mistaken for a serious question about the nature of things." Hart defends international law in Bentham's terms as "sufficiently analogous" to municipal law. It is important to see in what way this analogy is viewed by Hart in order to determine whether the reasoning he offers is too high a price to pay for accepting a neo-positivist into the circle of those who hold that international law is really law.