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Full-Text Articles in Law

Ecological And Holistic Analysis Of The Epistemic Value Of Law Libraries, Paul D. Callister, Dana Neacsu Jan 2021

Ecological And Holistic Analysis Of The Epistemic Value Of Law Libraries, Paul D. Callister, Dana Neacsu

Law Faculty Publications

We examine the libraries' roles within the "epistemic foundation of society.” Our analysis is in response to the omission of Yale Law Dean Gerken of the role of libraries in her recent article about legal education's new focus and to remarks by AALS President Vicki Jackson that suggest an uncertain role for libraries. We have adapted holistic ecological media theory, as developed by Ronald Deibert, to reject a technologically deterministic view of libraries as having no future. We have considered the role of law libraries in the social epistemology or cognitive authority of the legal community, the role of ...


Non-Indian Reservations, Joshua Matthew Rosenau Jan 2021

Non-Indian Reservations, Joshua Matthew Rosenau

Graduate Student Theses, Dissertations, & Professional Papers

This thesis is a skeptical treatment of the logical distinctions presumed to exist between “Indian” and “non-Indian” people. Despite representing 99 percent of the U.S. population, “non-Indians” represent a legal identity which has no explicit definition. The basis for the U.S. Supreme Court’s decisions regarding non-Indians and Indians rests not on any objective, empirical or logical criterion or proof, but rather on the “assumption of a ‘guardian-ward’ status. This thesis investigates this assumption, and recommends that we suspend judgment on whether the difference between “Indians” and “non-Indians” can be determined either by logical argument or by legal ...


“Identity-Based” And “Diversity-Based” Evidence Between Linear And Fractal Rationality, Maurizio Manzin Jun 2020

“Identity-Based” And “Diversity-Based” Evidence Between Linear And Fractal Rationality, Maurizio Manzin

OSSA Conference Archive

I identify two types of evidence: one based on “linear” rationality (LR) and the other based on “fractal” rationality (FR). For LR, evidence depends only on systematic coherence, and all other sources of knowledge (intuitive, perceptive, symbolic, poetic, moral, etc.) are marginalized. For FR, evidence requires an approach more adherent to the “irregularities” of life. LR philosophically entails a Neoplatonist and Cartesian account on identity, whereas FR entails Plato’s account on identity and diversity as coessential.


Functional Corporate Knowledge, Mihailis Diamantis Nov 2019

Functional Corporate Knowledge, Mihailis Diamantis

William & Mary Law Review

The line between guilt and innocence often turns on what a defendant knew. Although the law’s approach to knowledge may be relatively straightforward for individuals, its doctrines for corporate defendants are fraught with ambiguity and opportunities for gamesmanship. Corporations can spread information thinly across employees so that it is never “known.” And prosecutors can exploit legal uncertainties to bring knowledge-based charges where corporations were merely negligent in how they handled information. Whereas knowledge as a mens rea has unique practical and normative properties that vary with a corporation’s size and industry, corporate law treats knowledge just like any ...


Feeling As Knowing: Trans Phenomenology And Epistemic Justice, B. Lee Aultman Sep 2018

Feeling As Knowing: Trans Phenomenology And Epistemic Justice, B. Lee Aultman

Dissertations, Theses, and Capstone Projects

This dissertation is a critical intervention into the literatures on epistemic and phenomenological claims about trans experiences, and embodied knowledge more generally. It also addresses the conception of ordinary affects, or feelings of self-adjustment in everyday life, and their political implications for trans people. Traditional literatures on the political tend to avoid questions of embodiment and the experiences of everyday life in favor of institutional interpretations of courts, elections, and protest movements. This has become particularly true of scholarship on trans politics and theories of ordinary life. These literatures often reduce political movements to their presumed universal intentions for constitutional ...


The Politics Of Wounds, Jonathan Nash Aug 2018

The Politics Of Wounds, Jonathan Nash

Electronic Thesis and Dissertation Repository

What configuration of strategies and discourses enable the white male and settler body politic to render itself as simultaneously wounded and invulnerable? I contextualize this question by reading the discursive continuities between Euro-America’s War on Terror post-9/11 and Algeria’s War for Independence. By interrogating political-philosophical responses to September 11, 2001 beside American rhetoric of a wounded nation, I argue that white nationalism, as a mode of settler colonialism, appropriates the discourses of political wounding to imagine and legitimize a narrative of white hurt and white victimhood; in effect, reproducing and hardening the borders of the nation-state. Additionally ...


Radical Social Ecology As Deep Pragmatism: A Call To The Abolition Of Systemic Dissonance And The Minimization Of Entropic Chaos, Arielle Brender May 2018

Radical Social Ecology As Deep Pragmatism: A Call To The Abolition Of Systemic Dissonance And The Minimization Of Entropic Chaos, Arielle Brender

Student Theses 2015-Present

This paper aims to shed light on the dissonance caused by the superimposition of Dominant Human Systems on Natural Systems. I highlight the synthetic nature of Dominant Human Systems as egoic and linguistic phenomenon manufactured by a mere portion of the human population, which renders them inherently oppressive unto peoples and landscapes whose wisdom were barred from the design process. In pursuing a radical pragmatic approach to mending the simultaneous oppression and destruction of the human being and the earth, I highlight the necessity of minimizing entropic chaos caused by excess energy expenditure, an essential feature of systems that aim ...


Arguing With Friends, William Baude, Ryan D. Doerfler Jan 2018

Arguing With Friends, William Baude, Ryan D. Doerfler

Faculty Scholarship at Penn Carey Law

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or ...


High-Stakes Interpretation, Ryan D. Doerfler Mar 2017

High-Stakes Interpretation, Ryan D. Doerfler

Faculty Scholarship at Penn Carey Law

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to ...


An Unjust Dogma: Why A Special Right To Religion Wrongly Discriminates Against Non-Religious Worldviews, Kenneth Einar Himma Mar 2017

An Unjust Dogma: Why A Special Right To Religion Wrongly Discriminates Against Non-Religious Worldviews, Kenneth Einar Himma

San Diego Law Review

In this Article, I will argue that a special right to religious freedom is not morally warranted, and that hence such a right illicitly discriminates against non-religious worldviews. The principal argument here is that there is no adequate reason to think that religious worldviews implicate any interests distinct from those implicated by non-religious worldviews. While it is certainly true that religious worldviews warrant, as a matter of political morality, all the protections that non-religious worldviews receive, there is good reason to question what seems to have become a dogma among Western nations—namely, that religious worldviews deserve special protection....


Common Knowledge: Epistemology And The Beginnings Of Copyright Law, Jonathan Scott Enderle Mar 2016

Common Knowledge: Epistemology And The Beginnings Of Copyright Law, Jonathan Scott Enderle

Scholarship at Penn Libraries

Literary critics’ engagement with copyright law has often emphasized ontological questions about the relation between idealized texts and their material embodiments. This essay turns toward a different set of questions—about the role of texts in the communication of knowledge. Developing an alternative intellectual genealogy of copyright law grounded in the eighteenth-century contest between innatism and empiricism, I argue that jurists like William Blackstone and poets like Edward Young drew on Locke’s theories of ideas to articulate a new understanding of writing as uncommunicative expression. Innatists understood texts as tools that could enable transparent communication through a shared stock ...


Everyone Knew He Did It, But He Was Not Condemned! Knowledge And Knowledge Attributions In Legal Contexts, Danny Marrero Avendano Aug 2014

Everyone Knew He Did It, But He Was Not Condemned! Knowledge And Knowledge Attributions In Legal Contexts, Danny Marrero Avendano

Graduate Theses and Dissertations

Theorizing about knowledge attributions has revolved almost exclusively around the problem of skepticism and knowledge attributions in everyday conversations. Sutton (2007), however, points out that Epistemic Contextualism seems to settle another field: "[i]t is sometimes suggested that courtroom proceedings provide a context that shows the context-sensitivity of knowledge ascription truth-conditions" (p. 87). This dissertation is devoted to the evaluation of this contextualist suggestion (CS). Epistemic Contextualism claims that the correctness of knowledge attributions depends on the salience of error possibilities or the practical states of a knowledge attributor's context of utterance. I interpret CS implies that the context ...


Poverty Knowledge, Coercion, And Social Rights: A Discourse Ethical Contribution To Social Epistemology, David Ingram Jan 2014

Poverty Knowledge, Coercion, And Social Rights: A Discourse Ethical Contribution To Social Epistemology, David Ingram

Philosophy: Faculty Publications and Other Works

In today’s America the persistence of crushing poverty in the midst of staggering affluence no longer incites the righteous jeremiads it once did. Resigned acceptance of this paradox is fueled by a sense that poverty lies beyond the moral and technical scope of government remediation. The failure of experts to reach agreement on the causes of poverty merely exacerbates our despair. Are the causes internal to the poor – reflecting their more or less voluntary choices? Or do they emanate from structures beyond their control (but perhaps amenable to government remediation)? If both of these explanations are true (as I ...


Poverty Knowledge, Coercion, And Social Rights: A Discourse Ethical Contribution To Social Epistemology, David Ingram Oct 2013

Poverty Knowledge, Coercion, And Social Rights: A Discourse Ethical Contribution To Social Epistemology, David Ingram

David Ingram

In today’s America the persistence of crushing poverty in the midst of staggering affluence no longer incites the righteous jeremiads it once did. Resigned acceptance of this paradox is fueled by a sense that poverty lies beyond the moral and technical scope of government remediation. The failure of experts to reach agreement on the causes of poverty merely exacerbates our despair. Are the causes internal to the poor – reflecting their more or less voluntary choices? Or do they emanate from structures beyond their control (but perhaps amenable to government remediation)? If both of these explanations are true (as I ...


Liquid Assets: A Coasian Economic Analysis Of Oregon's Allocation Of Conserved Water Program, Richard A. Grisel Apr 2013

Liquid Assets: A Coasian Economic Analysis Of Oregon's Allocation Of Conserved Water Program, Richard A. Grisel

Richard A Grisel

Diversions for residential, agricultural, recreational, commercial, industrial, and other beneficial uses have had the effect of removing water from rivers and tributaries throughout the western U.S. Another, more recent, competing use is ecological, demonstrated by the legal recognition of instream beneficial uses in some jurisdictions. As awareness of the progressively acute need for reallocation has increased in the arid West, so has interest in water markets and other mechanisms to facilitate transfers across beneficial uses. However, governments and water users face a legacy prior appropriation system that prohibits instream beneficial uses, encourages maximal diversion, stifles water right fungibility, and ...


Gaming The System: Bio-Economics, Game Theory, & Fisheries Management, Richard A. Grisel Dec 2012

Gaming The System: Bio-Economics, Game Theory, & Fisheries Management, Richard A. Grisel

Richard A Grisel

This paper argues that game theory provides powerful, effective new tools to analyze externalities that occur in the context of strategic, multi-party, interactive decision-making. I will attempt to treat this as a non-technical paper and avoid the complex mathematics better left to economists and mathematicians. Instead, a more achievable goal is to illustrate how high-seas open-access fishing is virtually identical to a game situation, treat the fundamentals of game theory, and demonstrate that game theoretic analyses are well-suited and fruitful for designing effective policy responses to fisheries management, particularly with respect to the straddling stocks problem. Indeed, one seminal fisheries ...


What’S Right About The Medical Model In Human Subjects Research Regulation, Heidi Li Feldman Oct 2012

What’S Right About The Medical Model In Human Subjects Research Regulation, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Critics of Institutional Review Board (IRB) practices often base their charges on the claim that IRB review began with and is premised upon a "medical model" of research, and hence a "medical model" of risk. Based on this claim, they charge that IRB review, especially in the social and behavioral sciences, has experienced "mission creep". This paper argues that this line of critique is fundamentally misguided. While it remains unclear what critics mean by "medical model", the point of contemporary human research subjects regulation remains the same across all domains of research. That point is to protect the autonomy of ...


Webs Of Faith As A Source Of Reasonable Disagreement, Gregory Brazeal Jan 2012

Webs Of Faith As A Source Of Reasonable Disagreement, Gregory Brazeal

Gregory Brazeal

Contemporary political theorists and philosophers of epistemology and religion have often drawn attention to the problem of reasonable disagreement. The idea that deliberators may reasonably persist in a disagreement even under ideal deliberative conditions and even over the long term poses a challenge to the common assumption that rationality should lead to consensus. This essay proposes a previously unrecognized source of reasonable disagreement, based on the notion that an individual's beliefs are rationally related to one another in a fabric of sentences or web of beliefs. The essay argues that an individual's beliefs may not form a single ...


Geothermal Resources Under The Mining Law Regime--Problems & Possibilities, Richard A. Grisel Dec 2011

Geothermal Resources Under The Mining Law Regime--Problems & Possibilities, Richard A. Grisel

Richard A Grisel

The development of geothermal resources has been greatly hampered by the legal and institutional framework governing geothermal energy resources. This framework has been plagued by conflicting mining and water laws, anachronistic common law systems of property rights, problematic legal classifications of geothermal resources, and jurisdictional variances from state to state and between states and the Federal government. These issues have combined to significantly hinder the development of what will be a vital resource for our nation’s future energy needs.

This thesis concerns one way to address the suboptimal development of geothermal energy resources. Using the Federal acquisition of exclusive ...


Cognitive Agendas And Legal Epistemology, Danny Marrero Dec 2011

Cognitive Agendas And Legal Epistemology, Danny Marrero

Graduate Theses and Dissertations

The domain of legal epistemology is defined from two alternative perspectives: individual epistemology and Social epistemology. Since these perspectives have different objects of evaluation, their judgments privilege and exclude different sets of information. While methodological individualism is concerned with justified beliefs of individual knowers, the Social angle focuses on the institutional conditions of knowledge. I will show that the information that is respectively excluded by both the individual and the Social concepts of legal epistemology weaken their respective evaluations. With this in mind, I will explore one new option of defining legal epistemology. This alternative is more comprehensive, in the ...


La Presunción De Inocencia Como Proposición Sintética, Cesar A. Prieto Oct 2011

La Presunción De Inocencia Como Proposición Sintética, Cesar A. Prieto

Cesar A. Prieto

No abstract provided.


How Much Does A Belief Cost?: Revisiting The Marketplace Of Ideas, Gregory Brazeal Jan 2011

How Much Does A Belief Cost?: Revisiting The Marketplace Of Ideas, Gregory Brazeal

Gregory Brazeal

Justice Oliver Wendell Holmes, Jr. is often credited with creating the metaphor of “the marketplace of ideas,” though he did not use the exact phrase and his argument for free speech was not based on distinctively economic reasoning. Truly economic investigations of the marketplace of ideas have progressed in step with developments and trends in the law and economics literature. These investigations have tended to be one-sided, with writers focusing primarily either on the production of ideas (for example, Posner) or their consumption (for example, behavioral law and economics), without considering in depth how producers and consumers interact. This may ...


Novel Properties: Communication, Copyright, And The British Novel, 1710-1774, Scott Enderle Jan 2011

Novel Properties: Communication, Copyright, And The British Novel, 1710-1774, Scott Enderle

Publicly Accessible Penn Dissertations

Literary investigations of copyright have generally taken a retrospective view of British eighteenth-century copyright law. Influenced by the assumptions and methods of historical materialism, and aiming to critique romantic notions of authorship, such projects have sought in the eighteenth century a narrative of the 'rise of the romantic author.' Though productive, this approach has sometimes obscured other influential strains of thought about authorship, interpretation, and literary property that were widespread in the eighteenth century. This dissertation seeks to shift focus away from the historical materialist critique of romantic authorship--part of a debate that has its roots in the nineteenth century--and ...


The Social Epistemology Of Public Institutions, Mathilde Cohen Dec 2010

The Social Epistemology Of Public Institutions, Mathilde Cohen

Mathilde Cohen

This article discusses what it means for a decision-maker to have a reason for a decision and to give that reason as a justification for the decision. Indeed, if the relationship is difficult to sort out at the individual, private level, it becomes even more complicated when we move to complex collective entities like public institutions. This is why we need to know under what conditions public institutions may 'have' reasons for their decisions. The article explores the hypothesis that proper ascriptions of reasons to institutions depend on whether they have formally adopted a common set of reasons. I contend ...


Review Of Russ Shafer-Landau (Ed.), Oxford Studies In Metaethics, Vol 3, Eric Wiland Jan 2009

Review Of Russ Shafer-Landau (Ed.), Oxford Studies In Metaethics, Vol 3, Eric Wiland

Philosophy Faculty Works

No abstract provided.


Diabolical Frivolity Of Neoliberal Fundamentalism, Sefik Tatlic Jan 2009

Diabolical Frivolity Of Neoliberal Fundamentalism, Sefik Tatlic

Sefik Tatlic

Today, we cannot talk just about plain control, but we must talk about the nature of the interaction of the one who is being controlled and the one who controls, an interaction where the one that is “controlled” is asking for more control over himself/herself while expecting to be compensated by a surplus of freedom to satisfy trivial needs and wishes. Such a liberty for the fulfillment of trivial needs is being declared as freedom. But this implies as well the freedom to choose not to be engaged in any kind of socially sensible or politically articulated struggle.


El Estado Moderno Y La Sociedad De Intercambio En La Obra De Thomas Hobbes, Alejandro Pérez Y Soto Dominguez Jun 2007

El Estado Moderno Y La Sociedad De Intercambio En La Obra De Thomas Hobbes, Alejandro Pérez Y Soto Dominguez

Alejandro Pérez y Soto Dominguez

No abstract provided.


Hobbes And The Internal Point Of View, Claire Oakes Finkelstein Jan 2006

Hobbes And The Internal Point Of View, Claire Oakes Finkelstein

Faculty Scholarship at Penn Carey Law

No abstract provided.


The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan Jan 2005

The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan

Faculty Publications

No abstract provided.


Cross-Cultural Commerce In Shakespeare's The Merchant Of Venice, Anita L. Allen, Michael R. Seidl Jan 1995

Cross-Cultural Commerce In Shakespeare's The Merchant Of Venice, Anita L. Allen, Michael R. Seidl

Faculty Scholarship at Penn Carey Law

No abstract provided.