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Articles 1 - 21 of 21
Full-Text Articles in Philosophy
Why Aim Law Toward Human Survival, John William Draper
Why Aim Law Toward Human Survival, John William Draper
Librarian Scholarship at Penn Law
Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.
If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.
There is no better choice. You and all your relatives have rights. The …
Our Principled Constitution, Mitchell N. Berman
Our Principled Constitution, Mitchell N. Berman
All 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 …
Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman
Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman
All Faculty Scholarship
No abstract provided.
Alexander's Genius, Mitchell N. Berman
On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman
On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman
All Faculty Scholarship
No abstract provided.
Political Authority And Political Obligation, Stephen R. Perry
Political Authority And Political Obligation, Stephen R. Perry
All Faculty Scholarship
Legitimate political authority is often said to involve a “right to rule,” which is most plausibly understood as a Hohfeldian moral power on the part of the state to impose obligations on its subjects (or otherwise to change their normative situation). Many writers have taken the state’s moral power (if and when it exists) to be a correlate, in some sense, of an obligation on the part of the state’s subjects to obey its directives. Thus legitimate political authority is said to entail a general obligation to obey the law, and a general obligation to obey the law is said …
The Legitimating Role Of Consent In International Law, Matthew J. Lister
The Legitimating Role Of Consent In International Law, Matthew J. Lister
All Faculty Scholarship
According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but …
Provocation Manslaughter As Partial Justification And Partial Excuse, Mitchell N. Berman, Ian Farrell
Provocation Manslaughter As Partial Justification And Partial Excuse, Mitchell N. Berman, Ian Farrell
All Faculty Scholarship
The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. It traces back to the twelfth century, and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law theorists. The dominant scholarly view holds that provocation is best explained and defended …
Citizenship, In The Immigration Context, Matthew J. Lister
Citizenship, In The Immigration Context, Matthew J. Lister
All Faculty Scholarship
Many international law scholars have begun to argue that the modern world is experiencing a “decline of citizenship,” and that citizenship is no longer an important normative category. On the contrary, this paper argues that citizenship remains an important category and, consequently, one that implicates considerations of justice. I articulate and defend a “civic” notion of citizenship, one based explicitly on political values rather than shared demographic features like nationality, race, or culture. I use this premise to argue that a just citizenship policy requires some form of both the jus soli (citizenship based on location of birth) and the …
Originalism Is Bunk, Mitchell N. Berman
Self-Defense And The State, Kimberly Kessler Ferzan
Self-Defense And The State, Kimberly Kessler Ferzan
All Faculty Scholarship
This article is a contribution to a symposium honoring Sandy Kadish. This article seeks to explore whether and to what extent our understanding of self-defense depends upon a citizen's relationship with the state. Part II begins by setting forth Professor Kadish's claim that self-defense is "a right to resist aggression" that is held by a citizen against the state. After contending that such an account is insufficient to justify self-defense, the remainder of the article seeks to explore the relationship between the state and self-defense. Part III argues that self-defense is a pre-political moral right, as opposed to a political …
Aspirational Rights And The Two-Output Thesis, Mitchell N. Berman
Aspirational Rights And The Two-Output Thesis, Mitchell N. Berman
All Faculty Scholarship
No abstract provided.
What Do We Mean By "Judicial Independence"?, Stephen B. Burbank
What Do We Mean By "Judicial Independence"?, Stephen B. Burbank
All Faculty Scholarship
In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of …
Something For Nothing: Liberal Justice And Welfare Work Requirements, Amy L. Wax
Something For Nothing: Liberal Justice And Welfare Work Requirements, Amy L. Wax
All Faculty Scholarship
Welfare reform legislation enacted in 1996, which created the Temporary Assistance for Needy Families (TANF) program, makes entitlement to federal poor relief conditional on fulfilling work requirements. The article addresses the following timely question: whether just liberal societies should require work as a condition of public assistance for the able-bodied, or whether aid should be provided unconditionally through, for example, a basic guaranteed income for all. Drawing on the work of liberal egalitarian theorists, the article investigates whether standard liberal theories of justice can help make sense of arguments commonly voiced in favor of work requirements: that unconditional welfare guarantees, …
State Accountability For Violations Of Intellectual Property Rights: How To "Fix" Florida Prepaid (And How Not To), Mitchell N. Berman
State Accountability For Violations Of Intellectual Property Rights: How To "Fix" Florida Prepaid (And How Not To), Mitchell N. Berman
All Faculty Scholarship
No abstract provided.
A Reciprocal Welfare Program, Amy L. Wax
A Reciprocal Welfare Program, Amy L. Wax
All Faculty Scholarship
This paper examines how social welfare programs should be structured to comport with the principle of conditional reciprocity. A previous paper, Rethinking Welfare Rights, 63 Law & Contemporary Problems 257 (Winter/Spring 2000), drew upon voter survey data to suggest that a powerful cluster of attitudes governs citizens' views on social redistribution. Most people accept collective responsibility for the poor but adhere to a moralistic distinction between deserving and undeserving recipients of public aid. They view entitlement to group resources as conditional on each person's reasonable effort, consistent with ability, to support himself and his family. It was speculated that the …
Social Contract Theory In American Case Law, Anita L. Allen
Social Contract Theory In American Case Law, Anita L. Allen
All Faculty Scholarship
No abstract provided.
Comment On Maccormick, William Ewald
Second-Order Reasons, Uncertainty And Legal Theory, Stephen R. Perry
Second-Order Reasons, Uncertainty And Legal Theory, Stephen R. Perry
All Faculty Scholarship
No abstract provided.
Unger's Philosophy: A Critical Legal Study, William Ewald
Unger's Philosophy: A Critical Legal Study, William Ewald
All Faculty Scholarship
Of all the scholars associated with the Critical Legal Studies movement, none has garnered greater attention or higher praise than Roberto Unger of Harvard Law School. In this Article, William Ewald argues that Professor Unger's reputation as a brilliant philosopher of law is undeserved. Despite the seeming erudition of his books, Professor Unger's work displays little familiarity with the basic philosophical literature, and the philosophical, legal, and political analysis in those works-in particular, the celebrated critique of liberalism in Knowledge and Politics-is so riddled with logical and historical errors as to be unworthy of serious scholarly attention.
Treating Crazy People Less Specially, Stephen J. Morse
Treating Crazy People Less Specially, Stephen J. Morse
All Faculty Scholarship
No abstract provided.