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Law As Trope: Framing And Evaluating Conceptual Metaphors, Harold Anthony Lloyd 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, Daniel B. Yeager 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?, Daniel B. Yeager 2017 California Western School of Law

Marlowe's Faustus: Contract As Metaphor?, Daniel B. Yeager

Daniel B. Yeager

No abstract provided.


Our Principled Constitution, Mitchell N. Berman 2017 University of Pennsylvania Law School

Our Principled Constitution, Mitchell N. Berman

Faculty Scholarship

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, John A. Humbach Mr. 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, Megan Stevenson, Sandra G. Mayson 2017 University of Pennsylvania

Bail Reform: New Directions For Pretrial Detention And Release, Megan Stevenson, Sandra G. Mayson

Faculty Scholarship

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, Ryan D. Doerfler 2017 University of Pennsylvania Law School

High-Stakes Interpretation, Ryan D. Doerfler

Faculty Scholarship

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 ...


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 ...


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 ...


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 ...


The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana 2016 Chapman University

The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana

Deepa Badrinarayana

The evolution of tort law in former British colonies is not only fascinating; it also holds clues into the age old question of whether law or any discrete area of law can be universal. The exploration into doctrinal divergences and convergences is part of a larger quest: to capture the theoretical underpinnings of tort law and, in that process, discover the universal core of tort law, if there is one. For example, is the central purpose of tort law efficient resource allocation, corrective justice, or simply a compensatory system for wrongs? To answer these questions, theorists have generally considered tort ...


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 ...


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