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Full-Text Articles in Philosophy

Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse Dec 2015

Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse

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This article is based on the author’s Barrock Lecture in Criminal Law presented at the Marquette University Law School. The central thesis is that the folk psychology that underpins criminal responsibility is correct and that our commonsense understanding of agency and responsibility and the legitimacy of criminal justice generally are not imperiled by contemporary discoveries in the various sciences, including neuroscience and genetics. These sciences will not revolutionize criminal law, at least not anytime soon, and at most they may make modest contributions to legal doctrine, practice, and policy. Until there are conceptual or scientific breakthroughs, this is my story …


Ratification, Reporting, And Rights: Quality Of Participation In The Convention Against Torture, Cossette D. Creamer, Beth A. Simmons Aug 2015

Ratification, Reporting, And Rights: Quality Of Participation In The Convention Against Torture, Cossette D. Creamer, Beth A. Simmons

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The core international human rights treaty bodies play an important role in monitoring implementation of human rights standards through consideration of states parties’ reports. Yet very little research explores how seriously governments take their reporting obligations. This article examines the reporting record of parties to the Convention against Torture, finding that report submission is heavily conditioned by the practices of neighboring countries and by a government’s human rights commitment and institutional capacity. This article also introduces original data on the quality and responsiveness of reports, finding that more democratic—and particularly newly democratic—governments tend to render higher quality reports.


Judge Posner’S Simple Law, Mitchell N. Berman Jan 2015

Judge Posner’S Simple Law, Mitchell N. Berman

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The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range widely—from the Bluebook …


Neuroscience, Free Will, And Criminal Responsibility, Stephen J. Morse Jan 2015

Neuroscience, Free Will, And Criminal Responsibility, Stephen J. Morse

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This chapter argues that the folk-psychological model of the person and responsibility is not challenged by determinism in general or by neurodeterminism in particular. Until science conclusively demonstrates that human beings cannot be guided by reasons and that mental states play no role in explaining behavior, the folk-psychological model of responsibility is justified. This chapter discusses the motivations to turn to science to solve the hard normative problems the law addresses, as well as the law's psychology and its concepts of the person and responsibility. Then it considers the general relation of neuroscience to law, which I characterize as the …


The Moral Vigilante And Her Cousins In The Shadows, Paul H. Robinson Jan 2015

The Moral Vigilante And Her Cousins In The Shadows, Paul H. Robinson

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By definition, vigilantes cannot be legally justified – if they satisfied a justification defense, for example, they would not be law-breakers – but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law …


The Common Sense Of Contract Formation, Tess Wilkinson-Ryan, David A. Hoffman Jan 2015

The Common Sense Of Contract Formation, Tess Wilkinson-Ryan, David A. Hoffman

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What parties know and think they know about contract law affects their obligations under the law and their intuitive obligations toward one another. Drawing on a series of new experimental questionnaire studies, this Article makes two contributions.First, it lays out what information and beliefs ordinary individuals have about how to form contracts with one another. We find that the colloquial understanding of contract law is almost entirely focused on formalization rather than actual assent, though the modern doctrine of contract formation takes the opposite stance. The second Part of the Article tries to get at whether this misunderstanding matters. Is …


The Problem With Consenting To Insider Trading, Leo Katz Jan 2015

The Problem With Consenting To Insider Trading, Leo Katz

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No abstract provided.


Progressive Legal Thought, Herbert J. Hovenkamp Jan 2015

Progressive Legal Thought, Herbert J. Hovenkamp

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A widely accepted model of American legal history is that "classical" legal thought, which dominated much of the nineteenth century, was displaced by "progressive" legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it.

Classical legal thought is generally identified with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not …