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Articles 31 - 49 of 49
Full-Text Articles in Ethics and Political Philosophy
Law’S Evolution And Law As Custom, William A. Edmundson
Law’S Evolution And Law As Custom, William A. Edmundson
San Diego Law Review
normative, and law works by channeling custom-in-gross into progressively finer and more precise grooves. If there is normative moral value resident in the custom of elevating and following leaders, then that normativity ought to flow downstream into the finer channels officials carve and into the fresh territory they wish us to occupy. In places, that flow is too diluted, and normativity trails off. In places, officials direct the stream over a cliff, and it is no longer normative at all. In places, the stream is overtaken by stronger normative streams and can only make a difference yet farther downslope, where …
Freedom, Benefit And Understanding: Reflections On Laurence Claus’S Critique Of Authority, John Finnis
Freedom, Benefit And Understanding: Reflections On Laurence Claus’S Critique Of Authority, John Finnis
San Diego Law Review
With wide-ranging and illuminating determination, Law’s Evolution and Human Understanding offers a refutation of the illusion of authority. No one, it rightly contends, has the right to be obeyed. Still less, as it correctly says, do any persons have the right that their say so be obeyed because they said so. Given the book’s stipulative definition of “authority,” these truths entail that authority is an illusion, and provide some important premises for a plausible further conclusion or pair of conclusions: it is harmful, both in practice and in theory, to say that some person or body has authority (“the rule …
Do People Obey The Law?, Frederick Schauer
Do People Obey The Law?, Frederick Schauer
San Diego Law Review
It is customary in a symposium honoring a book as valuable as Laurence Claus’s for the commentators to begin by noting their general agreement with the author’s thesis and then explaining that, in the spirit of academic engagement, they will focus on one small but interesting area in which the author and the commentator disagree. On this occasion, however, it seems more appropriate to reverse that approach. For reasons I will make clear, I am in substantial disagreement with Claus’s normative argument against authority. Unlike Claus, I believe that “because I said so” is often, especially when backed by the …
False Speech: Quagmire?, Christopher P. Guzelian
False Speech: Quagmire?, Christopher P. Guzelian
San Diego Law Review
Recently decided cases in several Federal Courts of Appeals and the United States Supreme Court show that First Amendment false speech case law is contradictory and unpredictable. This Article gives examples and concludes that legal liability for false speech will continue to be arbitrary and even susceptible to intentionally unjust decisionmaking if judges and juries individually and collectively disregard or downplay the necessity of an honest search for truth under the guise of tolerance and evenhandedness. If Americans wish to avoid an anything-goes “quagmire” about truth, they must—despite inevitable resistance in a civilization increasingly rife with skeptics—undergo transformations of their …
Should Public Law Accommodate The Claims Of Conscience?, William A. Galston
Should Public Law Accommodate The Claims Of Conscience?, William A. Galston
San Diego Law Review
In the end, it seems to me, the matter boils down to a single issue. Many individuals consider themselves bound by two sources of authority, public law and conscience, whose demands do not always coincide. Is the state prepared to take cognizance of this fact, and if so, how should it respond? Unlike other regimes, liberal democracies should not find these questions unduly challenging. To be a liberal state is to recognize limits on the legitimate scope of public authority; to be a liberal democracy is to recognize limits on the authority of the people and on the writ of …
Does The Existing Human Rights Regime Have Political Authority?, Christopher Heath Wellman
Does The Existing Human Rights Regime Have Political Authority?, Christopher Heath Wellman
San Diego Law Review
In this Article I consider whether the existing international legal human rights regime enjoys political authority over sovereign states. In particular, I explore whether, just as states can cite their role as the primary institutions that protect human rights in order to justify their claim to authority over their citizens, perhaps the current human rights regime might plausibly cite its secondary role in securing human rights in order to ground its authority over these states.
The Morality Of Human Rights, Michael J. Perry
The Morality Of Human Rights, Michael J. Perry
San Diego Law Review
My discussion of the morality of human rights in this Article presupposes that the reader is familiar with the internationalization of human rights: the growing international recognition and protection, in the period since the end of the Second World War, of certain rights as human rights. The Appendix to this Article is for readers not familiar with the internationalization of human rights. I begin, in the first Part of the Article, by explaining what the term human right means in the context of the internationalization of human rights. I also explain both the sense in which some human rights are, …
Price Gouging, Non-Worseness, And Distributive Justice, Matt Zwolinski
Price Gouging, Non-Worseness, And Distributive Justice, Matt Zwolinski
Philosophy: Faculty Scholarship
This paper develops my position on the ethics of price gouging in response to Jeremy Snyder's article, "What's the Matter with Price Gouging." First, it explains how the "nonworseness claim" supports the moral permissibility of price gouging, even if it does not show that price gougers are morally virtuous agents. Second, it argues that questions about price gouging and distributive justice must be answered in light of the relevant possible institutional alternatives, and that Snyder's proposed alternatives to price gouging fare worse on the dimension of justice than a system in which goods are allocated by a system of market …
Respect For Persons And The Authority Of Morality, Matt Zwolinski
Respect For Persons And The Authority Of Morality, Matt Zwolinski
Philosophy: Faculty Scholarship
No abstract provided.
True Blue? Whether Police Should Be Allowed To Use Trickery And Deception To Extract Confessions, Laure Hoffman Roppe
True Blue? Whether Police Should Be Allowed To Use Trickery And Deception To Extract Confessions, Laure Hoffman Roppe
San Diego Law Review
This Comment addresses whether or not, and if so, to what extent, police should be allowed to use trickery and deception to extract confessions from criminal suspects. It surveys the deceitful interrogation tactics included in the term "trickery" and summarizes the psychology of confessions. Major developments in the law regarding coerced confessions are analyzed and the author explores the policy arguments for and against the use of deception in police interrogations. The author recommends the prohibition of specific forms of trickery and offers an analytical approach as to whether a confession is admissible.
An Index And Table Of Contents To The Ali Reporters' Study On Enterprise Responsibility For Personal Injury, Jeffrey O'Connell, Alexander S. Glovsky
An Index And Table Of Contents To The Ali Reporters' Study On Enterprise Responsibility For Personal Injury, Jeffrey O'Connell, Alexander S. Glovsky
San Diego Law Review
In 1986, the American Law Institute (ALI) published a report to analyze and appraise the state of the tort system and to recommend reform. This study lacked crucial aids that could make it more accessible: it was devoid of any index and the table of contents did not contain any subheadings. The authors of this Article created an index and a comprehensive table of contents, in order to make the report more "user friendly." This Article contains a brief description of the 1986 ALI Reporter's Study, followed by an expanded table of contents and an index.
Deference, Tolerance, And Numbers: A Response To Professor Wright's View Of The Sentencing Commission, Kevin Cole
Deference, Tolerance, And Numbers: A Response To Professor Wright's View Of The Sentencing Commission, Kevin Cole
San Diego Law Review
The United States Sentencing Commission promulgates the Federal Sentencing Guidelines, which greatly constrain judicial discretion in choosing the sentence for federal crimes. One commentator, Professor Ronald Wright, has argued that the willingness of the courts and Congress to defer to a guideline promulgated by the Commission should depend on whether the Commission has justified the guideline by reference to empirical evidence. This Article explores the theoretical and practical difficulties of giving such effect to empirical justifications.
The Economics Of Federalism And The Proper Scope Of The Federal Commerce Power, Jacques Leboeuf
The Economics Of Federalism And The Proper Scope Of The Federal Commerce Power, Jacques Leboeuf
San Diego Law Review
The study of the economics of federalism has emerged as a distinct field. While the insights of that study have been applied in understanding the logic behind the dormant commerce clause, they have not been used in analyzing the affirmative scope of the federal commerce power. The author suggests that the economics of federalism can provide both a justification for and a limitation upon the federal commerce power. Specifically, he suggests that the federal government ought to be able to regulate only those areas of commerce where state regulation would be inefficient due to externalities. Furthermore, he argues, this conception …
Grounds For Political Judgment: The Status Of Personal Experience And The Autonomy And Generality Of Principles Of Restraint, Kent Greenawalt
Grounds For Political Judgment: The Status Of Personal Experience And The Autonomy And Generality Of Principles Of Restraint, Kent Greenawalt
San Diego Law Review
This Article addresses three perplexing problems about proposed principles of self-restraint for political decision and advocacy within liberal democracies. It considers the nature of convictions that are based on highly personal experiences and asks what their political status should be. It explores the subtle relationship between proposed principles of restraint and overarching religious and other comprehensive views. It argues that a plausible principle of restraint must appeal to people with various religious and other comprehensive views and must be suited to the particular conditions of a given society.
The Place Of Religious Argument In A Free And Democratic Society, Robert Audi
The Place Of Religious Argument In A Free And Democratic Society, Robert Audi
San Diego Law Review
This Article provides an account of the notion of a religious argument, distinguishes several roles of religious arguments in a liberal democracy, and defends a set of principles for their proper use in such a society. The author argues that it is appropriate that citizens apply a kind of separation of church and state in their public use of religious arguments, especially in advocating laws or public policies that restrict liberty. More specifically, the author contends that whatever religious arguments one may have in such cases, one should also be willing to offer, and be to a certain extent motivated …
Religious Morality And Political Choice: Further Thoughts--And Second Thoughts--On Love And Power, Michael J. Perry
Religious Morality And Political Choice: Further Thoughts--And Second Thoughts--On Love And Power, Michael J. Perry
San Diego Law Review
This is an Article written by the author of the book Love and Power: The Role of Religion and Morality in American Politics. In this Article, he returns to an inquiry already addressed in Love and Power. He asks the question: should Americans accept an ideal of political choice according to which a citizen ought not make a controversial political choice if the choice cannot be defended without relying on a religious belief that at least some opponents of the choice reject? The author responds with a resounding no, arguing that we should not accept such a political ideal. He …
Constructing An Ideal Of Public Reason, Lawrence B. Solum
Constructing An Ideal Of Public Reason, Lawrence B. Solum
San Diego Law Review
In deciding to what ideal citizens should aspire in political debate, some people contend that an ideal of political morality should mirror the freedom of expression. This Article undertakes the construction of an ideal of public reason. It begins with an investigation of the term "public reason." The author considers various possibilities for an ideal or normative standard of public reason. As each option is considered, some possible formulations are discarded and additional specifications are added. He concludes with the ideal that is constructed through this process of elaboration, evaluation, and elimination.
Liberalism, Religion And The Unity Of Epistemology, Larry Alexander
Liberalism, Religion And The Unity Of Epistemology, Larry Alexander
San Diego Law Review
This Article focuses on the relation between liberalism and religion. Professor Alexander argues that liberalism is itself just a sectarian view on the same level as the religious and other views that it purports to be neutral about and to tolerate. The Article shows that liberalism is a rejection of all illiberal religious tenets. It further contends that liberalism cannot make out its case for excluding religious arguments from shaping public policy. It concludes that to the extent liberalism is defined by or rests on the insulation of public policy from religious views, liberalism is undermined by its failure to …
Address By Secretary Of Labor W. Willard Wirtz, W. Willard Wirtz
Address By Secretary Of Labor W. Willard Wirtz, W. Willard Wirtz
San Diego Law Review
The address was delivered by Mr. Wirtz at the annual meeting of the Association of American Law Schools held in Los Angeles on December 29, 1963. Because they were addressed to the particular group assembled and depended for their meaning upon circumstances existing at the time, certain introductory comments have been deleted.