Law Commons^™

Children's Oppression, Rights And Liberation, Samantha Godwin

Samantha Godwin

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …

Wild-West Cowboys Versus Cheese-Eating Surrender Monkeys: Some Problems In Comparative Approaches To Extreme Speech, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

All European states ban some form of hate speech. US law precludes such bans. In view of the political and symbolic importance of free speech, it becomes tempting to assume that trans-Atlantic differences towards hate speech reflect deeper cultural divisions.

However, we must pay attention to comparative methodology before drawing ambitious conclusions about cross-cultural social and political differences that derive solely from differences in formal, black-letter norms. In this volume, Robert Post claims that formal, constitutional requirements of content-neutral regulation reflect a freer public sphere in the US, in contrast to the European public sphere.

Yet a legal-realist approach casts …

Cumulative Jurisprudence And Hate Speech: Sexual Orientation And Analogies To Disability, Age And Obesity, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities.

Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association.

Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this article, that approach is challenged. …

Water Is Security, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Reasonable and equitable water resource decision-making is at the core of good governance around the world. Sustained water collaboration is an antidote to foreign relations disintegration. Lack of water quality and quantity policies can lead to water insecurity for everyone, yet bureaucratic obstacles such as inertia and corruption must be averted in altering water governance schemes. There are multiple ways to lower transaction costs and strive for optimal water use. Several ingredients of good water governance include: (1) broad participation through the entire decision-making process; (2) transparent flow of information; (3) equitable opportunities to increase well-being; (4) accountability from governments, …

A Climate Of Extremes: Transboundary Conflict Resolution, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

This Article examines evolving climate change policy. In April 2007 Massachusetts v. Environmental Protection Agency clarified that the EPA has the authority to regulate greenhouse gas emissions. This Supreme Court ruling coincided with the United Nations Security Council's decision to put climate change on its agenda. The Intergovernmental Panel on Climate Change (IPCC) has found that anthropogenic climate change has impacted the natural world and human societies. Scientific and governmental consensus has coalesced that multilateral climate mitigation and adaptation must be implemented. International institutions, governments, businesses, non-governmental organizations, and civil society can achieve multilateral greenhouse gas mitigation and climate adaptation.

Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz

Justin Schwartz

Is the family subject to principles of justice? In A Theory of Justice, John Rawls includes the (monogamous) family along with the market and the government as among the "basic institutions of society" to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes to the family, and in particular its impact on fair equal opportunity (the first part of the the Difference …

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

What's Wrong With Exploitation?, Justin Schwartz

Justin Schwartz

Abstract: Marx thinks that capitalism is exploitative, and that is a major basis for his objections to it. But what's wrong with exploitation, as Marx sees it? (The paper is exegetical in character: my object is to understand what Marx believed,) The received view, held by Norman Geras, G.A. Cohen, and others, is that Marx thought that capitalism was unjust, because in the crudest sense, capitalists robbed labor of property that was rightfully the workers' because the workers and not the capitalists produced it. This view depends on a Labor Theory of Property (LTP), that property rights are based ultimately …

From Libertarianism To Egalitarianism, Justin Schwartz

Justin Schwartz

A standard natural rights argument for libertarianism is based on the labor theory of property: the idea that I own my self and my labor, and so if I "mix" my own labor with something previously unowned or to which I have a have a right, I come to own the thing with which I have mixed by labor. This initially intuitively attractive idea is at the basis of the theories of property and the role of government of John Locke and Robert Nozick. Locke saw and Nozick agreed that fairness to others requires a proviso: that I leave "enough …