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Comments: When Psychology Answers Constitutional Questions: The Eighth Amendment And Juvenile Sentencing, Emily M. Steiner 2017 University of Baltimore School of Law

Comments: When Psychology Answers Constitutional Questions: The Eighth Amendment And Juvenile Sentencing, Emily M. Steiner

University of Baltimore Law Review

While weighing whether or not to turn himself in for murder and surrender to prison, a 23-year-old law student questions the high premium placed on imprisonment as a rehabilitative measure. After finally submitting to imprisonment, however, Rodion Raskolnikov comes to understand the value of atoning for his crimes and how his punishment correlates with societal justice. The balance struck between an appropriate amount of suffering and society’s need for justice is at the heart of Raskolnikov’s character development.

Despite Raskolnikov’s imprisonment and accompanying character transformation, one important question remains unanswered by Fyodor Dostoevsky’s novel: at what ...


Patriarchy, Not Hierarchy: Rethinking The Effect Of Cultural Attitudes In Acquaintance Rape Cases, Eric R. Carpenter 2017 Florida International University College of Law

Patriarchy, Not Hierarchy: Rethinking The Effect Of Cultural Attitudes In Acquaintance Rape Cases, Eric R. Carpenter

Faculty Publications

Do certain people view acquaintance rape cases in ways that favor the man? The answer to that question is important. If certain people do, and those people form a disproportionately large percentage of the people in the institutions that process these cases, then those institutions may process these cases in ways that favor the man. In 2010, Dan Kahan published Culture, Cognition, and Consent, a study on how people evaluate a dorm room rape scenario. He found that those who endorsed a stratified, hierarchical social order were more likely to find that the man should not be found guilty of ...


Callister Freedom Essay 1.22.Repository.Submission.Pdf, Paul D. Callister 2016 University of Missouri-Kansas City

Callister Freedom Essay 1.22.Repository.Submission.Pdf, Paul D. Callister

Paul D. Callister

Freedom is overlooked as a legal and social concept, with few attempts to define it.  Lon Fuller articulated the critical question about freedom:  “How can the freedom of human beings be affected or advanced by social arrangement, that is by laws, customs, institutions, or other forms of social order that can be changed or preserved by purposive human actions?”  Freedom needs to be defined in the context of this question—as an ideal to be advanced by our social institutions, laws, and customs.  The article first begins with a framework for freedom established by Lon Fuller in a neglected article ...


What Is Meant By Freedom?, Paul D. Callister 2016 University of Missouri-Kansas City

What Is Meant By Freedom?, Paul D. Callister

Paul D. Callister

Freedom is overlooked as a legal and social concept, with few attempts to define it.  Lon Fuller articulated the critical question about freedom:  “How can the freedom of human beings be affected or advanced by social arrangement, that is by laws, customs, institutions, or other forms of social order that can be changed or preserved by purposive human actions?”  Freedom needs to be defined in the context of this question—as an ideal to be advanced by our social institutions, laws, and customs.  The article first begins with a framework for freedom established by Lon Fuller in a neglected article ...


Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall 2016 Legal Studies & Business Ethics/Wharton University of Pennsylvania

Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall

Amy J. Sepinwall

There is in the criminal law perhaps no principle more canonical than the fault principle, which holds that one may be punished only where one is blameworthy, and one is blameworthy only where one is at fault. Courts, criminal law scholars, moral philosophers and textbook authors all take the fault principle to be the foundational requirement for a just criminal law. Indeed, perceived threats to the fault principle in the mid-Twentieth Century yielded no less an achievement than the drafting of the Model Penal Code, which had as its guiding purpose an effort to safeguard faultless conduct from criminal condemnation ...


Patriarchy, Not Hierarchy: Rethinking The Effect Of Cultural Attitudes In Acquaintance Rape Cases, Eric Carpenter 2016 Florida International University College of Law

Patriarchy, Not Hierarchy: Rethinking The Effect Of Cultural Attitudes In Acquaintance Rape Cases, Eric Carpenter

Eric R. Carpenter

Do certain people view acquaintance rape cases in ways that favor the man? The answer to that question is important. If certain people do, and those people form a disproportionately large percentage of the people in the institutions that process these cases, then those institutions may process these cases in ways that favor the man.
In 2010, Dan Kahan published Culture, Cognition, and Consent, a study on how people evaluate a dorm room rape scenario. He found that those who endorsed a stratified, hierarchical social order were more likely to find that the man should not be found guilty of ...


A Structural Etiology Of The U.S. Constitution, Charles Lincoln 2016 Notre Dame Law School

A Structural Etiology Of The U.S. Constitution, Charles Lincoln

Journal of Legislation

This article offers an interpretation of the problems addressed by and the eventual purpose of the United States government. Simultaneously, it seeks to analyze and explain the continued three-part structure of the United States federal government as outlined in the Constitution. Subsequently I define the three parts of the federal government—judiciary, executive, and legislative—as explained through the lens of the Platonic paradigm of (logos = word = law), (thymos = external driving spirit = executive), and (eros = general welfare = legislative) extrapolated from Plato’s dialogues.

First, the article establishes Plato’s theory of the three-part Platonic soul as a major premise, as ...


The Question Concerning Technology In Compliance, Sean J. Griffith 2016 Brooklyn Law School

The Question Concerning Technology In Compliance, Sean J. Griffith

Brooklyn Journal of Corporate, Financial & Commercial Law

In this symposium Essay, I apply insights from philosophy and psychology to argue that modes of achieving compliance that focus on technology undermine, and are undermined by, modes of achieving compliance that focus on culture. Insisting on both may mean succeeding at neither. How an organization resolves this apparent contradiction in program design, like the broader question of optimal corporate governance arrangements, is highly idiosyncratic. Firms should therefore be accorded maximum freedom in designing their compliance programs, rather than being forced by enforcement authorities into a set of de facto mandatory compliance structures.


Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen 2016 University of Pennsylvania Law School

Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen

Faculty Scholarship

Big Data is the vast quantities of information amenable to large-scale collection, storage, and analysis. Using such data, companies and researchers can deploy complex algorithms and artificial intelligence technologies to reveal otherwise unascertained patterns, links, behaviors, trends, identities, and practical knowledge. The information that comprises Big Data arises from government and business practices, consumer transactions, and the digital applications sometimes referred to as the “Internet of Things.” Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they shop with a credit card, get treated at a hospital, apply ...


Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan 2016 University of Kentucky College of Law

Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan

Jennifer Bird-Pollan

The one-hundredth anniversary of the estate tax provides an ideal moment to reflect on the role of wealth transfer taxation in the larger scheme of the U.S. tax system. Wealth and income inequality are at historically high levels, and the responses to these issues are often reduced to a simplistic political dichotomy of “right” versus “left.” The multitude of views of the American people cannot be reduced to such simple generalities without losing important nuances. This Article identifies three general categories of political philosophical viewpoints that are commonly endorsed by both politicians and everyday Americans, and then examines the ...


Comparative Urban Governance For Lawyers, Fernanda G. Nicola, Sheila Foster 2016 American University, Washington College of Law

Comparative Urban Governance For Lawyers, Fernanda G. Nicola, Sheila Foster

Fernanda G Nicola

No abstract provided.


Legislative Art As Policy And Pedagogy, Albert Stabler 2016 University of Illinois at Urbana-Champaign

Legislative Art As Policy And Pedagogy, Albert Stabler

Marilyn Zurmuehlen Working Papers in Art Education

The primary medium for artist Laurie Jo Reynolds is that of political lobbying. She refers to her practice as “legislative art,” adapting the term “legislative theater,” a technique for grassroots lawmaking developed and coined by Brazilian director and playwright Augusto Boal, who both founded the Theater of the Oppressed and served as a member of the Rio city government from 1993 to 1997. By linking the discourses of art and law, Reynolds’ practice can be understood as a form of education, highlighting the restrictions required for creativity, and the possibilities afforded by structure. In my essay I bring together European ...


Freedom, Benefit And Understanding: Reflections On Laurence Claus's Critique Of Authority, John Finnis 2016 Notre Dame Law School

Freedom, Benefit And Understanding: Reflections On Laurence Claus's Critique Of Authority, John Finnis

John M. Finnis

Written for a symposium in the University of San Diego Law School in September 2013 on Laurence Claus, Law’s Evolution and Human Understanding (New York: Oxford University Press, 2012), this article appears in the final issue of volume 52 of the San Diego Law Review. With new illustrations and considerations suggested by the book, the article argues for a number of theses: “Because I/we say so” is never a reasonable ground or formulation of authoritative acts such as enactments or parental or other orders. The moral authority of rule makers is never peremptory in a binary (all or ...


Morality In Legal Practice, Rev. William F. Cahill 2016 St. John's University School of Law

Morality In Legal Practice, Rev. William F. Cahill

The Catholic Lawyer

No abstract provided.


Civil Disobedience And Natural Law, Mark R. MacGuigan 2016 St. John's University School of Law

Civil Disobedience And Natural Law, Mark R. Macguigan

The Catholic Lawyer

No abstract provided.


Constitution Day Lectures, Maxwell L. Stearns, Paula A. Monopoli, Larry S. Gibson, Robert Koulish, David J. Maher 2016 University of Maryland Francis King Carey School of Law

Constitution Day Lectures, Maxwell L. Stearns, Paula A. Monopoli, Larry S. Gibson, Robert Koulish, David J. Maher

Endnotes

No abstract provided.


The Tragedy Of Justice Scalia, Mitchell N. Berman 2016 University of Pennsylvania Law School

The Tragedy Of Justice Scalia, Mitchell N. Berman

Faculty Scholarship

Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia ...


Postracial Remedies, Derrick Darby, Richard E. Levy 2016 University of Michigan

Postracial Remedies, Derrick Darby, Richard E. Levy

University of Michigan Journal of Law Reform

The Supreme Court’s equal protection jurisprudence is decidedly postracial. The Court has restricted the Equal Protection Clause to intentional discrimination by the government, concluding that the Constitution does not prohibit private acts of discrimination and rejecting challenges based on disparate impact, even when rigorous statistical analysis indicates that race is likely a factor. It has held that remedying the effects of past societal discrimination is an insufficient basis for race-specific remedies such as affirmative action. It has also ended remedies of this sort designed to combat previous state-sponsored racial discrimination, such as court-ordered desegregation measures in the schools and ...


Neuroethics: Neurolaw, Stephen J. Morse 2016 University of Pennsylvania Law School

Neuroethics: Neurolaw, Stephen J. Morse

Faculty Scholarship

This is a pre-copyedited version of a chapter in the Oxford Handbooks Online (Philosophy) edited by Sandy Goldberg. In altered form, it was published online in February, 2017 and can be found at the Oxford Handbooks Online website. The entry discusses whether the findings of the new neuroscience based largely on functional brain imaging raise new normative questions and entail normative conclusions for ethical and legal theory and practice. After reviewing the source of optimism about neuroscientific contributions and the current scientific status of neuroscience, it addresses a radical challenge neuroscience allegedly presents: whether neuroscience proves persons do not have ...


Shareholder Wealth Maximization As Means To An End, Robert P. Bartlett, III 2016 Selected Works

Shareholder Wealth Maximization As Means To An End, Robert P. Bartlett, Iii

Robert Bartlett

In several recent cases, the Delaware Chancery Court has emphasized that where a conflict of interest exists between holders of a company’s common stock and holders of its preferred stock, the standard of conduct for directors requires that they strive to maximize the value of the corporation for the benefit of its common stockholders rather than for its preferred stockholders. This article interrogates this view of directors’ fiduciary duties from the perspective of incomplete contracting theory. Building on the seminal work of Sanford Grossman and Oliver Hart, incomplete contracting theory examines the critical role of corporate control rights for ...


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