Law Commons^™

A “Woman’S Best Right”—To A Husband Or The Ballot?: Political And Household Governance In Anthony Trollope’S Palliser Novels, Linda C. Mcclain

Faculty Scholarship

The year 2020 marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the U.S. Constitution. In 2018, the United Kingdom marked the one hundredth anniversary of some women securing the right to vote in parliamentary elections and the ninetieth anniversary of women securing the right to vote on the same terms as men. People observing the Nineteenth Amendment’s centenary may have difficulty understanding why it required such a lengthy campaign. One influential rationale in both the United Kingdom and the United States was domestic gender ideology about men’s and women’s separate spheres and destinies. This ideology …

A ;-) At The Past And Future Of English, Tiffany Li

Faculty Scholarship

It is always with a certain amount of wry, knowing amusement that we turn to the thoughts of people from the past remarking on the future (that is, our present). It is similar to how slightly older children view slightly younger children. They were so innocent then, those thinkers of the past! Look at what they thought computers could do, what language could be! How adorably naïve! Not like us, we who have put away our childish things.

Of course, the science fiction of our present may someday seem as pathetically misconceived as that of the past. So, too, will …

American Trial Films And The Popular Culture Of Law, Jessica Silbey

Faculty Scholarship

The American trial and American cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. And both are preoccupied with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and cinematic form also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film, the continuing popularity of the legal drama centered on a courtroom verdict suggests more than a trend. The inherent affinities between law and film not only produce enduring …

Professed Values, Constructive Interpretation, And Political History: Comments On Sotirios Barber, The Fallacies Of States' Rights, David B. Lyons

Faculty Scholarship

Our barely functioning Congress seems to embody the issues that this conference on constitutional dysfunction is meant to address. At this moment, however, congressional disarray may result less from institutional design than from our lasting heritage of white supremacy. Republican control of the House owes much to the party's Southern Strategy, which has exploited widespread dissatisfaction with the Democrats' official renunciation of racial stratification. That challenge to the American Way is exacerbated by the idea, outrageous to some, of a black President. That context has some bearing on this Symposium's topic of federalism. For, as Professor Larry Yackle reminds us, …

Underneath Her Pantsuit: A Reflection On Hanna Rosin's The End Of Men, Aziza Ahmed

Faculty Scholarship

In her book, The End of Men, ¹ Hanna Rosin argues that women have “surpassed” men. This new reality necessitates a reevaluation of marriage, family, sex, and gender roles.² To further her claim, Rosin dedicates a chapter of her book to the topic of violence committed by women. She argues that women are becoming more violent³ :

The new [trope] taps into a fear that as they gain more power, women will use violence and their new specialized skills to get what they want. Singular and exotic though these cases may be, they raise the broader unsettling possibility …

Constitutional Principles, David B. Lyons

Faculty Scholarship

Principles that are not given by the constitutional text are sometimes attributed to the Constitution. This is done within Professor Balkin’s “framework originalism.”1 The question I wish to consider is how it may properly be done. How can it be shown that the Constitution is committed tacitly to a given principle? I shall discuss Balkin’s theory with that question in mind.

Poverty Tourism, Justice And Policy, Kevin Outterson, Evan Selinger, Kyle Whyte

Faculty Scholarship

Based on moral grounds, should poverty tourism be subject to specific policy constraints? This article responds by testing poverty tourism against the ethical guideposts of compensation justice, participative justice, and recognition justice, and two case descriptions, favela tours in Rocinha and garbage dump tours in Mazatlan. The argument advanced is that the complexity of the social relationships involved those tours requires policy-relevant research and solutions.

Feminism, Power, And Sex Work In The Context Of Hiv/Aids: Consequences For Women's Health, Aziza Ahmed

Faculty Scholarship

This paper examines the involvement of feminists in approaches to sex work in the context of HIV/AIDS. The paper focuses on two moments where feminist disagreement produced results in favor of an "anti-trafficking" approach to addressing the vulnerability of sex workers in the context of HIV. The first is the UNAIDS Guidance Note on Sex Work and the second is the "anti-prostitution pledge" found in the Presidents Emergency Plan for AIDS Relief. This article also examines the anti-sex work position articulated by abolitionist feminists and demonstrates the unintended consequences of the abolitionist position on women's health. By examining the actual …

When Men Are Harmed: Feminism, Queer Theory, And Torture At Abu Ghraib, Aziza Ahmed

Faculty Scholarship

In this Article I explore the assertions of "anti-imperialist" feminist scholars who critique "imperial feminism" for its support of the war on terror (WOT). I bring into this analysis the proposition by queer theorists that feminist reliance on male/ female subordination has the potential to not only obscure harm in times of war but also to perpetuate it. As a case study, I focus on the Abu Ghraib prison photos that depict, in part, female soldiers torturing male Iraqi prisoners. In conducting this analysis, I reveal the analytical limitations of dominance and cultural feminists, particularly with regard to male harm …

Moral Limits Of Dworkin's Theory Of Law And Legal Interpretation, David B. Lyons

Faculty Scholarship

At the foundation of Justice for Hedgehogs is a commitment to moral objectivity – the doctrine that there are right answers to moral questions. This nicely complements Dworkin’s legal theory, which holds that right answers to legal questions depend on right answers to moral questions. Without the doctrine of moral objectivity, Dworkin could not reasonably maintain, as he does, that law provides determinate answers to legal questions.

Protecting Hiv Positive Women’S Human’S Rights: Recommendations For The Obama Administration, Aziza Ahmed, Catherine Hanssens, Brook Kelly

Faculty Scholarship

To bring the United States in line with prevailing human rights standards, its National HIV/AIDS Strategy will need to explicitly commit to a human rights framework when developing programmes and policies that serve the unaddressed needs of women. This paper focuses on two aspects of the institutionalized mistreatment of people with HIV: 1) the criminalization of their consensual sexual conduct; and 2) the elimination of informed and documented consensual participation in their diagnosis through reliance on mandatory and opt-out testing policies. More than half of US states have HIV-specific laws criminalizing the consensual sexual activity of people with HIV, regardless …

Corrective Justice, Equal Opportunity, And The Legacy Of Slavery And Jim Crow, David B. Lyons

Faculty Scholarship

Chattel slavery was a brutally cruel, repressive, and exploitative system of racial subjugation. When it was abolished, the former slaveholders owed the freedmen compensation for the terrible wrongs of enslavement. Ex-slaves sought reparations, especially in the form of land, but few received any sort of recompense. The wrongs they suffered were never repaired.

No one alive today can be held accountable for the wrongs of chattel slavery, and those who might now be called upon to pay reparations were not even born until many decades after slavery ended. For some scholars, the lack of accountable parties makes current reparations claims …

Render Copyright Unto Caesar: On Taking Incentives Seriously, Wendy J. Gordon

Faculty Scholarship

This Essay suggests we bifurcate our thinking. Conventional copyright rules by money, so let it rule the money-bound. Let a different set of rules evolve for more complex uses, particularly when the users have a personal relationship with the utilized text. Much recent scholarship contains dramatic suggestions to secure a freedom to be creative, rewrite, and be imaginative. My work has long sought to defend such freedoms, but I believe we understand imagination and its conditions too little to employ it as a starting point. I suggest instead that we acquire a better conceptual map of the generative process and …

Technology And Learning By Factory Workers: The Stretch-Out At Lowell, 1842, James Bessen

Faculty Scholarship

In 1842 Lowell textile firms increased weaving productivity by assigning three looms per worker instead of two. This marked a turning point. Before, weavers at Lowell were temporary and mostly literate Yankee farm girls; afterwards, firms increasingly hired local residents, including illiterate and Irish workers. An important factor was on-the-job learning. Literate workers learned new technology faster, but local workers stayed longer. These changes were unprofitable before 1842, and the advantages of literacy declined over time. Firm policy and social institutions slowly changed to permit deeper human-capital investment and more productive implementation of technology

Open Texture And The Possibility Of Legal Interpretation, David B. Lyons

Faculty Scholarship

This essay concerns the possibility of interpreting law. It is always possible to interpret law in the weak sense, which assigns meaning it is not assumed the law previously possessed. My concern here is interpretation in the strong sense, which, if successful, reveals meaning that lies hidden in the law. Theories of legal interpretation have recently received much theoretical attention. The received theory of law's open texture suggests that this interest is misplaced.

Radical Resisters, David B. Lyons

Faculty Scholarship

In the early 1840s Henry David Thoreau stopped paying the Massachusetts poll tax. When pressed for payment in 1846, he invited arrest and went to jail. He had wanted to protest his state's complicity in the federal government's support of chattel slavery and its policies towards Native Americans. By the time he delivered his lecture on civil disobedience, in 1848, events had produced another cause. Thoreau also condemned this country's expansionist war against Mexico.

Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon

Faculty Scholarship

Blackmail commentary continues to proliferate. One purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of blackmail literature, and to supply the connecting links that will allow us to see how various normative theories converge in condemning central case blackmail. Admittedly, the law criminalizes more than my central case. But once we recognize that the central case is neither puzzling nor paradoxical, it may be easier to handle the border cases that arise.

Rethinking "Original Intent", David B. Lyons

Faculty Scholarship

Although Dred Scott v. Sandford is one of the Supreme Court's most controversial decisions, it is not often taught or read. But its approach to constitutional interpretation is by no means outdated, and its historical importance has not diminished. So it seems a good example to consider.

Substance, Process And Outcome In Constitutional Theory, David B. Lyons

Faculty Scholarship

Scholarship in philosophy proceeds at a slower pace than in the law. As Tom Lehrer, the poet laureate of a recent generation, might have said, the law biz travels on a faster track. Or so it seems to a philosopher who has recently been treading the tracks of constitutional lawyers.

And so it is with apprehension that I take as my text a book that was published as long ago as 1980. As the title of this lecture might suggest to someone with so long a memory, the book is John Hart Ely's Democracy and Distrust.' That work provoked an …

The Connection Between Law And Morality: Comments On Dworkin, David B. Lyons

Faculty Scholarship

Our discussions yesterday seemed haunted by a contrast--never quite formulated--between Natural Law and Legal Positivism. The standard interpretation turns on the idea of a "necessary connection" between law and morality. Positivism has often been understood to hold, and Natural Law to deny, that there can be unjust laws.

On Justifying Enforced Requirements: A Reply To Baier, David B. Lyons

Faculty Scholarship

There are limits to the possible subjects of justification. Typically, it concerns human behavior and things that human intervention can affect. Failing special circumstances, it makes no sense to speak of justifying the weather. There may be other limits to the class of possible subjects for justification; for example, it is sometimes said that a thing cannot be justified unless it has been indicted, though it is not clear how this claim should be taken. For there simply may be no point in bothering to justify something that is not suspect in some way, and the relevant condition can generally …

The Nature Of The Contract Argument, David B. Lyons

Faculty Scholarship

As truth is the first virtue of belief, so justice is of social institutions. That is John Rawls's view, and it seems true, at any rate, of the law. Official acts, laws, and legal arrangements generally are characterized as just or unjust, while other moral categories are much less frequently invoked. Justice seems inseparable from good law. It is therefore striking and important that justice has recently been regarded by prominent legal theorists as rationally disreputable--as, in Kelsen's words, "an irrational idea." Many divergent conceptions of social justice have been propounded, and it is held that there is no rational …

On Formal Justice, David B. Lyons

Faculty Scholarship

A number of legal and political theorists have suggested that public officials who fail to act within the law that they administer act unjustly. This does not mean that injustice is always likely to be done merely because it often happens to be done when officials depart from the law. Some writers have held that injustice is done whenever an official fails to act within the law, regardless of the circumstances. I shall call this type of view "formal justice."

Logic And Coercion In Bentham's Theory Of Law, David B. Lyons

Faculty Scholarship

Unlike conventional moral standards and other social rules, laws can be deliberately laid down and changed by specified procedures. It therefore seems reasonable to think of laws as issuing from or adopted by lawmakers who are ordinary human beings. Since laws tell us what must or must not be done, and since there is some temptation to understand all laws on the same pattern, it is natural to think of them as either commands or prohibitions. This is indeed a traditional view.