Liberty, 2017 Indiana University School of Law
Liberty, Robert C. Brown
Robert C. Brown
No abstract provided.
For Legal Principles, 2017 University of Pennsylvania Law School
For Legal Principles, Mitchell N. Berman
Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist.
Arguing With Friends, 2017 University of Chicago
Arguing With Friends, William Baude, Ryan D. Doerfler
It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.
Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or ...
Revolutionary Disobedience, 2017 Barry University School of Law
Revolutionary Disobedience, Philip K. Y. Lau
Barry Law Review
Over the past few decades, civil disobedience has become one of the most widely studied subjects in jurisprudence. Scholars such as Rawls and Dworkin have offered their unique reflections on the subject. Whilst many have made great contributions to clarify its purposes and justifications, they have neglected one of the most important and fundamental forms of political disobedience, namely revolutionary disobedience. Unlike an act of civil disobedience, which recognizes governmental authority and legitimacy, revolutionary disobedience explicitly denies and challenges those two principles. Manifested as a rupture between the constituent power (ruled/governed) and constituted power (ruler/governor) in a given ...
I Share, Therefore It's Mine, 2017 Chapman University School of Law
I Share, Therefore It's Mine, Donald J. Kochan
Donald J. Kochan
The Other Preamble: Civic Constitutionalism And The Preamble To The Bill Of Rights, 2017 wesleyan university
The Other Preamble: Civic Constitutionalism And The Preamble To The Bill Of Rights, John E. Finn
Concordia Law Review
This Article considers the civic constitutionalist nature of the Preamble to the Bill of Rights. Civic constitutionalism is a mode of reading constitutional texts that considers power in political, as opposed to legal, terms. Thus, the civic constitution gives citizens, not judges, the primary duty for ensuring a constitutionally compliant society. This Article also presents the underlying reasons, effects, and costs of the obscurity of the civic constitution and, more specifically, the Preamble to the Bill of Rights.
Private Rights And Private Wrongs, 2017 DePaul University College of Law
Private Rights And Private Wrongs, Andrew S. Gold
Michigan Law Review
Review of Private Wrongs by Arthur Ripstein.
Law As Trope: Framing And Evaluating Conceptual Metaphors, 2017 Wake Forest University School of Law
Law As Trope: Framing And Evaluating Conceptual Metaphors, Harold Anthony Lloyd
Pace Law Review
Like others who work with language, many lawyers no doubt appreciate good kennings. However, metaphors also play a much deeper role in thought and law than style, ornament, or verbal virtuosity. As we shall see, metaphors play a necessary role in our categories of thought. As a result, metaphors are a necessary part of thought itself, including legal thought.
Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, 2017 California Western School of Law
Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager
Daniel B. Yeager
Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships ...
Marlowe's Faustus: Contract As Metaphor?, 2017 California Western School of Law
Marlowe's Faustus: Contract As Metaphor?, Daniel B. Yeager
Daniel B. Yeager
No abstract provided.
Our Principled Constitution, 2017 University of Pennsylvania Law School
Our Principled Constitution, Mitchell N. Berman
Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.
Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a ...
Does Hard Incompatibilism Really Abolish ‘Right’ And ‘Wrong’? Some Thoughts In Response To Larry Alexander, 2017 Pace University School of Law
Does Hard Incompatibilism Really Abolish ‘Right’ And ‘Wrong’? Some Thoughts In Response To Larry Alexander, John A. Humbach Mr.
Pace Law Faculty Publications
In a challenge to recent writings of Derk Pereboom and Gregg Caruso,3 Larry Alexander makes the following claim: If one accepts the Pereboom-Caruso “hard incompatibilist” view of choice, which regards blame and retributive punishment as morally unjustified because free will is an illusion, then “normativity completely disappears.” In making this claim, Professor Alexander appears to hold that the moral distinction between right and wrong conduct (“normativity”) cannot effectively exist unless those who do wrong “deserve” to receive blame and punishment in response to their misbehavior. This is not, however, necessarily so.
Bail Reform: New Directions For Pretrial Detention And Release, 2017 University of Pennsylvania
Bail Reform: New Directions For Pretrial Detention And Release, Megan Stevenson, Sandra G. Mayson
Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who ...
High-Stakes Interpretation, 2017 University of Pennsylvania Law School
High-Stakes Interpretation, Ryan D. Doerfler
Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.
This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to ...
Spatial Terrorism, 2017 University of New Mexico School of Law
Spatial Terrorism, Dawinder S. Sidhu
Terrorism, under federal law, generally means an act of politically- or socially-motivated violence perpetrated against innocents. Terrorism within the meaning of federal law, in other words, exists only if a cognizable motive is uncovered. This definition also sees the United States as an undifferentiated landscape—by its own terms, it fails to take into account any geographic nuance in acts of mass violence. This Article suggests that spatial considerations are relevant in determining whether an act of mass violence constitutes an act of terrorism for purposes of federal law. It points to cities—which are characterized by a highly concentrated ...
Emigres: Lost In A Sea Of Ignorance, 2017 Florida Agricultural and Mechanical University
Emigres: Lost In A Sea Of Ignorance, Ronald C. Griffin
Faculty Books and Book Contributions
In EMIGRES: Lost in a Sea of Ignorance, Prof. Griffin states that austerity grips western nations, where governments spend paltry sums on welfare, refugees, and migrants. In his essay, Griffin parses a trove of knowledge about welfare and what's being done for needy people. There is a recounting of an Irish case, a report on spectacles in the US, and a narrative about the troubles in Europe stirred-up by Syrian refugees.
Abductive Reasoning In Wto Law, 2017 University of Western Ontario
Abductive Reasoning In Wto Law, Chios Carmody
Law is about many things, but at base it is about rights and obligations. That jural correlation is established and sustained by means of reasoning. We hold that an actor has a right or obligation by virtue of reasoning that classically occurs in one of two forms. An obligation creates a right by means of inductive logic that rests on the conviction of similar instances in the past and the need for proof. It can also create an obligation by means of deductive logic, that is, the process of reasoning from one or more statements (premises) that are used to ...
The Tragedy Of Justice Scalia, 2017 University of Pennsylvania Law School
The Tragedy Of Justice Scalia, Mitchell N. Berman
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 ...
Are We Adopting The Orphans, Or Creating Them? Medical Ethics And Legal Jurisprudential Guidance For Proposed Changes To The Orphan Drug Act, 2017 Washington University School of Law
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 ...
Comments: When Psychology Answers Constitutional Questions: The Eighth Amendment And Juvenile Sentencing, 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 ...