Law Commons^™

The Bright Future Of Gay Marriage, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

"Is That English You're Speaking?" Why Intention Free Interpretation Is An Impossibility, Larry Alexander, Saikrishna Prakash

San Diego Law Review

"Textualism" is a very general and abstract term that represents a variety of views about the interpretation of legal texts. One strand of textualism is conceptual and descriptive; this strand makes claims about what texts actually mean. Another strand of textualism is normative; this strand makes claims about how judges ought to proceed when they interpret particular kinds of legal texts, such as constitutions and statutes. In the first part of this paper, we are particularly concerned with an especially strong form of conceptual textualism - the position that texts can be interpreted without any reference, express or implied, to …

Evolution, Politics And Law, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Wild Dreamers: Meditations On The Admissibiity Of Dream Talk, Louise Harmon

Washington Law Review

This article presents a mosaic of interrelated meditations on how judges have dealt with the admissibility of dream talk, interspersed with short digressions on the meaning of dreams from a variety of historical and cultural perspectives. In Part I, I begin with theories about dreams from Aristotle, Hobbes, and others. I then tell the story of O.J. Simpson, wild dreamer extraordinaire, interrupted by a Freudian interlude and a speculation about the theories that the jurors may have silently applied to Simpson's dreams of killing his wife. In Part II, I present three wild dreamers from family court: a husband who …

Carl Schmitt's Nomos Of The Earth, Mark Antaki

Osgoode Hall Law Journal

No abstract provided.

The Three Independences, H. Jefferson Powell

University of Richmond Law Review

No abstract provided.

The End Of Technology: A Polemic, Louis E. Wolcher

Washington Law Review

This essay is a philosophical polemic against the essence of modern technology. The piece does not advance a Luddite's agenda, however, since it describes modern technology's essence as technological thinking, rather than as the manifold of technical instruments and processes. Technological thinking is not just careful planning towards well thought-out ends. Rather, it is an entire orientation to life, and as such it is a monstrosity: it relentlessly and heartlessly transforms the world's beings, including human beings, into measurable units of production and consumption that are constantly being judged for their contributions to "productivity." Nature is thus made into a …

Towards A Theory Of Legitimate Access: Morally Legitimate Authority And The Right Of Citizens To Access The Civil Justice System, Kenneth Einar Himma

Washington Law Review

This Article considers the issue of what the state is morally obligated to provide by way of citizen access to the civil justice system. It begins by describing the general problem of morally legitimate authority and how it bears on the problem of access to the civil justice system. It then identifies three different approaches to the general problem of morally legitimate authority and argues that none of these approaches warrants thinking that the state is morally obligated to provide each citizen with perfectly equal access to the civil justice system. The argument concludes that the three approaches to legitimacy …

Paradigms, Assumptions, And Strategies: Royce And Method, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.

Nietzsche’S Place In Nineteenth Century German Philosophy, Michael S. Green

Faculty Publications

No abstract provided.

Justice Harlan’S Law And Democracy, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

The Song Sparrow And The Child: Claims Of Science And Humanity, Joseph Vining

Books

For centuries public claims on behalf of science have been made about our nature and the nature of the world as a whole. Over the twentieth century such claims on behalf of science have grown deeper and stronger. More and more they are total claims, cosmological in the largest sense, and they have evoked opposition equally deep and strong.

There is the scientist in all of us. There is, too, the lawyer and law in all of us, which we realize the moment we serve as a witness or citizen juror. This book explores what the legal mind and ear …

Kant's Categorical Imperative: An Unspoken Factor In Constitutional Rights Balancing, 31 Pepp. L. Rev. 949 (2004), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

A Constitution For Everyone, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Gandhi And Justice, Raymond B. Marcin

Scholarly Articles

Mohandas K. Gandhi, the great and saintly Mahatma of India, once made a characteristic but nonetheless provocative statement about justice: “That action alone is just,” he wrote, “which does not harm either party to a dispute.” There have been instances in Western jurisprudence in which that Gandhian—essentially Eastern - understanding of justice sometimes surfaces. Several decades ago, Martin Luther King Jr., in a groundswell of Gandhian activism, raised that Gandhian understanding of justice to a position of near dominance in Western thought. It may be no coincidence that both King and Gandhi suffered the same fate for their troubles. Conventional …

A Key Influence On The Doctrine Of Actual Malice: Justice William Brennan's Judicial Philosophy At Work In Changing The Law Of Seditious Libel, Carlo A. Pedrioli

Faculty Scholarship

In light of the historical change in the law of seditious libel that New York Times v. Sullivan (1964) prompted and the need for further exploration of the human factors behind the case, this article gives attention to William Brennan’s judicial philosophy at work in the case. The article defines judicial philosophy as a system of guiding principles upon which a judge calls in the process of legal decision-making. Specifically, the article explains how, through Times v. Sullivan, Brennan’s instrumentalist judicial philosophy had an important influence on changing the course of legal protection for criticism of the government in the …

The Secret Life Of The Political Question Doctrine, 37 J. Marshall L. Rev. 441 (2004), Louis Michael Seidman

UIC Law Review

No abstract provided.

The Day May Come: Legal Rights For Animals, Tom Regan

Animal Law Review

This article examines the main arguments used for denying moral rights to nonhuman animals, the rights to life and bodily integrity in particular. Because these arguments are deficient, animals should not be denied legal rights on the basis of their presumed moral inferiority to humans.

Torture, Marcy Strauss

NYLS Law Review

No abstract provided.

Epistemology Legalized: Or, Truth, Justice, And The American Way, Susan Haack

Articles

No abstract provided.

Torture, Necessity, And The Union Of Law & Philosophy, Kimberly Kessler Ferzan

All Faculty Scholarship

This brief essay critiques the torture memoranda's use of the necessity defense from the perspectives of criminal law doctrine, criminal law theory, and moral philosophy.

Satirical Legal Studies: From The Legists To The Lizard, Peter Goodrich

Michigan Law Review

In Part I, I expand on the distinction between the Horatian and the Menippean forms of satire and then suggest that a similarly bold division can be used to map satirical legal studies. In support of that argument, I use the example of the earliest surviving satirical legal poem within the Western tradition. My analysis of this exemplary satirical legal artifact delineates four principal modes of legal satire that will organize the ensuing discussion of more contemporary examples of the genre. In Part II, I will address the currently popular and yet somewhat novel mode of ad hominem or nominate …

From Rethinking To Internationalizing Criminal Law, George P. Fletcher

Faculty Scholarship

Writing Rethinking Criminal Law ("Rethinking") was a gamble. No one had ever written a serious book on comparative criminal law – in English or in any other language. No one had ever addressed English-speaking readers with the argument that some other system of legal thought – espoused by a nation defeated in a major war just thirty years before – had a superior literature on criminal law and a more refined way of thinking about the structure of criminal offenses. No one had tried to present the system of criminal law as though it were a species of …

The Illusion Of Law: The Legitimating Schemas Of Modern Policy And Corporate Law, Ronald Chen, Jon Hanson

Michigan Law Review

This Article is about some of the schemas and scripts that form and define our lives. It is about the knowledge structures that shape how we view the world and how we understand the limitless information with which we are always confronted. This Article is also about the "evolution of ideas" underlying corporate law and all of modern policymaking. It is about the ways in which schemas and scripts have influenced how policy theorists, policymakers, lawyers, and many others (particularly in the West) understand and approach policymaking generally and corporate law specifically. It is about both the invisibility and blinding …

Defending Imminence: From Battered Women To Iraq, Kimberly Kessler Ferzan

All Faculty Scholarship

The war against Iraq and nonconfrontational killings by battered women are two recent examples of a more general theoretical problem. The underlying question is when may a defender act in self-defense. While some nineteenth century common law cases vested the rights in the defender, arguing that it was unfair to force her to live in fear, contemporary domestic and international law cast the balance decidedly on the side of the aggressor, by forcing the defender to wait until the aggressor's attack is imminent. The Bush Administration and the battered woman simply ask whether the pendulum swung too far in the …

Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber

Publications

Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and …

My Dinner At Langdell's, Pierre Schlag

Publications

This essay begins on one of those cold wet April Cambridge mornings. It was too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse - the laudanum was wearing off. Tonight would be dinner at Langdell's. It occurred to me that not everyone is invited to Langdell's for dinner - certainly not wayward law professors from the provinces. This was an extraordinary opportunity. Blackstone would be there. Duncan Kennedy perhaps. Certainly the early Llewellyn. I knocked on the door.

The Narratives Of Cyberspace Law (Or, Learning From Casablanca), Michael J. Madison

Articles

Cyberspace scholars have wrestled extensively with the question of the "right" metaphorical approach to the Internet, in order to guide legal and policy decisions. Literary theorists have wrestled with the perception that cyberspace undermines conventional ideas about narrative. This Essay suggests that each group could learn from the other. Cyberspace tells a better story than literary scholars believe, and the lawyers should pay more attention to the narrative attributes of cyberspace. To illustrate the argument, the Essay proposes a specific story framework for cyberspace: the film Casablanca.

Racism's Past And Law's Future, Vivian Grosswald Curran

Articles

Legal scholars, lawmakers and, increasingly, the general public seem to place ever-increasing hope in the potential of law and legal theory, and of enforceable uniform international legal standards. Many appear to believe that identifying and enacting laws and a legal framework that correspond worldwide to human rights will solve the age-old problem of legalized barbarism. The historical propensity of courts, even in democratic states, to legitimate and enable racist policies provides compelling evidence that the current level of faith in law is misplaced.

This Article argues the limitations of law and legal theory, contesting the view that on their own …

Collective Guilt And Collective Punishment, George P. Fletcher

Faculty Scholarship

Attitudes toward collective guilt in the Middle East require us to take a closer look at guilt in the Bible. It turns out the text of Genesis is conflicted. Some passages support a theory of guilt linked with the inevitability of cleansing and punishment; other passages appear to treat guilt as a psychological state that might be cured by a confession of sins. The tension is important today in trying to understand whether the collective guilt of nations should also entail collective punishment.