Legal Theory Commons^™

Copyrightx: Harvard University Law School, Sue A. Gardner

Library Conference Presentations and Speeches

Slides of a talk about the 2014 iteration of the CopyrightX course administered by Professor William Fisher of Harvard University Law School.

Can Law Be A Source Of Insight For Other Academic Disciplines?, Stephen M. Feldman

Washington University Jurisprudence Review

Law has been a borrower but not a supplier. Law schools, in effect, have been located on one-way streets, with ideas flowing in but nothing going out. This essay is intended to begin a dialogue that could change the one-way streets between law schools and other university departments into two-way streets. I want to demonstrate that legal and jurisprudential studies can be a source of ideas for scholars in other fields. In particular, this essay argues that the legal concept of the burden of proof can illuminate disputes between theorists of modernism and postmodernism.

Civil Dissent By Obedience And Disobedience: Exploiting The Gap Between Official Rules And Societal Norms And Expectations, Daniel R. Correa

Washington University Jurisprudence Review

Civil dissent comes in many forms, from peaceful protest to open violation of official rules. But strict obedience to official rules may also serve as a dissenting act. Professors Jessica Bulman-Pozen and David E. Pozen examine obedience as dissent in their article, Uncivil Obedience. The term “uncivil obedience” is meant to capture what Bulman-Pozen and Pozen consider the paradox expressed by “insolence toward law” through conformity to law. This inversely mirrors the paradox expressed by a civil disobedient’s fidelity to law through violation of law.

Conceptually, ‘uncivil obedience’ is best understood as a form of civil disobedience. An uncivil ...

Corporate Identity And Group Dignity, Konstantin Tretyakov

Washington University Jurisprudence Review

Every time a decision needs to be made about corporate rights, the theoretical difficulties of corporate identity and personhood have to be overcome. In this article, I analyze these problems from the perspectives of moral philosophy and law, examining how the theories of the former inform and influence legal discourse and practices (including the recent cases of Citizens United and Hobby Lobby); my main point there is that the philosophical and legal understandings of personhood are analytically distinct and should not be confused. Based on my findings, I focus upon one particular teaching about corporate identity—the real entity theory ...

Kant’S Categorical Imperative And Mandatory Minimum Sentencing, Craig Turner

Washington University Jurisprudence Review

Deterrence-based punishment systems are scattered throughout history, and exist in the American legal system today. One such method of deterrence prescribes mandatory punishments for violations of certain crimes, without regarding to underlying circumstances or an assessment of the the individual accused of such crimes. These types of sentencing requirements restrict judicial discretion and are designed to serve as an example for other would-be offenders. While perhaps justifiable under a utilitarian code of ethics, mandatory minimums are morally suspect when assessed through the lens Immanuel Kant’s Categorical Imperative.

The fundamental premise of the second formulation of Kant’s Categorical Imperative ...

Cruel And Unusual What? Toward A Unified Definition Of Punishment, Raff Donelson

Washington University Jurisprudence Review

This Article argues for an expanded understanding of legal punishment for American courts to use. Punishment, on this new view, includes all significant harm caused by state actors’ retributive intent and most significant harm that befalls someone as a result of the state seeking retribution against her. What commends this new definition is not that it tracks lexicographers’ or metaphysicians’ understandings of punishment; rather, this new definition aims to track relevant moral and political considerations. Importantly, the proposed definition results from an attempt to reason from the perspective of someone harmed by state practices, as that perspective has greater moral ...

Criminal Responsibility And Causal Determinism, J. G. Moore

Washington University Jurisprudence Review

In analytical jurisprudence, determinism has long been seen as a threat to free will, and free will has been considered necessary for criminal responsibility. Accordingly, Oliver Wendell Holmes held that if an offender were hereditarily or environmentally determined to offend, then her free will would be reduced, and her responsibility for criminal acts would be correspondingly diminished. In this respect, Holmes followed his father, Dr. Holmes, a physician and man of letters. Similar theories, such as neuropsychological theories of determinism, continue to influence views on criminal responsibility, although such theories do not imply that it is physically impossible for accused ...

Is It Fair To Criminalize Possession Of Firearms By Ex-Felons?, Zack Thompson

Washington University Jurisprudence Review

Steven Gomez was being held in the county jail when he learned that he had been acquitted of the charges against him. Upon hearing that Gomez would be released shortly, Imran Mir, a fellow inmate who had been charged with participating in an international drug conspiracy, offered Gomez $10,000 per person to kill the six witnesses who were going to testify against Mir. Gomez reported Mir’s offer to the jail guards. Eventually, the customs agent working on Mir’s case promised anonymity and protection to Gomez in return for his help in gathering evidence against Mir. Gomez then ...

Table Of Contents

Washington University Jurisprudence Review

No abstract provided.

Faculty List

Washington University Jurisprudence Review

No abstract provided.

Go To Your Room, Fanduel And Draftkings: Daily Fantasy Sports, New York & Paternalism, James E. Havel

Washington University Jurisprudence Review

On October 4, 2015, Ethan Haskell, an employee of DraftKings, the nation’s second-largest Daily Fantasy Sports (DFS) website, won $350,000 in prize money on FanDuel, the nation’s largest DFS website. At the time, the two companies attracted attention with their seemingly incessant national advertising campaigns that blanketed the internet, television and sports-talk radio, which promised exciting entertainment and prize money resulting from playing daily fantasy leagues without season-long commitment. Haskell’s win was newsworthy, because he had access to pertinent and non-public DraftKings information that could have been used for his gain on FanDuel. This potential insider-trading ...

Modest Retributivism, Mitchell N. Berman

Faculty Scholarship

No abstract provided.

Mailing Statement

Washington University Jurisprudence Review

No abstract provided.

Editorial Board

Washington University Jurisprudence Review

No abstract provided.

The Unintended Consequences Of The International Women's Movement: Medicalizing Rape In The Democratic Republic Of Congo, Faye N. Forman

Senior Projects Spring 2016

The legal advancements made by western feminists from the 1960s continuing today mark a distinct shift for both the women's movement and mainstream radical feminist philosophy. This project examines the unintended consequences of the rise of the international women's movement as American feminists brought the law to bear as the primary instrument for reform to eradicate rape and violence against women. As contemporary political scholars demonstrate, legal remediation further codifies gender inequality and protective tropes that sexualize women's injury. Chapter 2 and 3 examines the intensified feminist efforts to criminalize domestic abuse at an international level, first ...

Hate Speech And Double Standards, Thomas M. Keck

Political Science

Many European states ban the public expression of hateful speech directed at racial and religious minorities, and an increasing number do so for anti-gay speech as well. These laws have been subjected to a wide range of legal, philosophical, and empirical investigation, but this paper explores one potential cost that has not received much attention in the literature. Statutory bans on hate speech leave democratic societies with a Hobson’s choice. If those societies ban incitements of hatred against some vulnerable groups, they will inevitably face parallel demands for protection of other such groups. If they accede to those demands ...

"Safer" Harbor: The Impact Of Different Models Of Safe Harbor Laws On The Criminalization Of Commercially Sexually Exploited Children In The United States, Priscila Borges Marques Dos Santos

Theses, Dissertations and Capstones

Commercially sexually exploited children (CSEC) are commonly treated as criminals and punished for offenses committed as a result of being trafficked. Recent state-level legislative efforts have sought to prevent minors from being held criminally liable for being commercially sexually exploited. This study offers an analysis of the effects of such laws on the criminalization of CSEC through the use of ordinary least squares (OLS) regression. Data on the number of child arrests for prostitution (1995-2014) and safe harbor laws were collected from the FBI Uniform Crime Reports, the Polaris Project website, and the 2015 ECPAT report. The findings of the ...

The Political Implications Of Felon Disenfranchisement Laws In The United States, Katharine G. Connaughton

CMC Senior Theses

This empirical study analyzes the political implications for presidential election outcomes that stem from varying felon disenfranchisement laws within the United States. In the past decade incarceration rates have drastically increased, consequently augmenting the disenfranchised population. This paper focuses on presidential election outcomes and state political party majorities in the election years 2000, 2004, 2008, and 2012. I use demographic characteristics to calibrate assumptions for voter turnout and political party choice among the disenfranchised populations within each state. I then apply these voting populations to historical election outcomes and find that three state political party outcomes change, as well as ...

Unintended Lawlessness Of Stand Your Ground: Justitia Fiat Coelum Ruat, Ann Marie Cavazos

Journal Publications

This paper will examine Florida's Stand Your Ground law by analyzing the origins and purpose of the law, vis-a-vis comparative analysis, and by discussing the application of this law. It will compare the stories of victims and further dissect the necessity and benefits of the Stand Your Ground laws, and examine in particular how it has affected the citizens of Florida and the nation. This Article will examine unforeseen outcomes derived from the enactment of a law meant for the common good and will further discuss how the Castle Doctrine evolved into the current Stand Your Ground laws. It ...

Repeating History: The Ineffectiveness Of The 1973 War Powers Resolution, Kaitlyn N. Schiess

Senior Honors Theses

Reluctant students often criticize the study of history as irrelevant to the present day.

In the case of one important and controversial piece of legislation, nothing could be farther from the truth. The 1973 War Powers Resolution (WPR), which places limits on presidential power to deploy troops in combat situations, has ample application to the political functioning of the United States today. Thus, investigating and studying the resolution remains relevant and important today. The WPR became law in 1973, overcoming a predictable veto by President Nixon. The legislation has consistently been a flashpoint for political controversy – eliciting criticism by both ...