Law Commons^™

Our Avatars, Ourselves, Mala Chatterjee

Faculty Scholarship

On 2013 an episode of the British TV show Black Minvrimagined a harrowing possibility: that technology might allow us to recreate the dead. A young woman named Martha loses her partner in a sudden accident and copes with the loss-or perhaps refuses to cope with itwith the assistance of an unnerving artificial intelligence, trained on her partner's data footprint, that can speak, act, and appear exactly as he did. It's not long before Martha becomes obsessed with the emulation, gathering every remnant of her partner's life to incorporate into the model and spending hours on the phone conversing with his …

Illiberalism And Administrative Government, Jeremy K. Kessler

Faculty Scholarship

Driven by the perception that liberal democracy is in a state of crisis across the developed world, political and legal commentators have taken to contrasting two alternatives: “illiberal democracy” (or populism) and “undemocratic liberalism” (or technocracy). According to the logic of this antinomy, once an erstwhile liberal-democratic nation-state becomes too populist, it is on the path toward illiberal democracy; once it becomes too technocratic, it is on the path toward undemocratic liberalism.

While the meanings of liberalism and democracy are historically and conceptually fraught, the contemporary discourse of liberal democratic crisis assumes a few minimal definitions. Within this discourse, liberalism …

Law’S Contributions To The Mindfulness Revolution, Elizabeth F. Emens

Faculty Scholarship

These are phenomenally challenging times. Mindfulness is a tool that can help lawyers support themselves, each other, their clients, and their collaborators in the hard work needed to build community and take action. For these and other reasons, mindfulness has made major inroads into law and legal institutions. Law firms, law schools, and courthouses offer training in mindfulness meditation to support the cognitive clarity and emotional self-regulation necessary for the demanding work of analyzing problems, resolving conflicts, overcoming bias, and doing justice. A growing literature, from empirical social science to legal scholarship, catalogs these and other benefits of mindfulness for …

Normative Powers, Joseph Raz

Faculty Scholarship

The chapter provides an analysis of normative powers as the ability to change a normative condition, and distinguishes and analyses several kinds of such powers. It distinguishes between wide normative powers possessed by any act that non-causally results in a normative change, and narrow normative powers, which are the main topic of the chapter. The most important theses of the chapter are: First, the distinction between basic normative powers and chained normative powers (the latter being powers created by the exercise of other powers) and second, defending the apparently surprising claim that people have narrow powers when and because there …

“Let Those Who Have An Experience Of Prison Speak”: The Critique & Praxis Of The Prisons Information Group (1970-1980), Bernard E. Harcourt

Faculty Scholarship

As the May ’68 revolution reached a boiling point, a remarkable assemblage of philosophers, writers, and incarcerated persons, doctors, nurses, social workers, and sociologists, activists and organizers, and militants in France turned their attention to the problem of the prison. At a time when prisons were mostly hidden from view, practically impenetrable in France to outsiders, at a time long before we recognized mass incarceration in countries like the United States, the Prisons Information Group (the Groupe d’information sur les prisons or the “GIP”) coalesced to spotlight the travesty of justice that is the prison – one that continues unabated …

The Critique And Praxis Of Rights, Bernard E. Harcourt

Faculty Scholarship

The critique of rights has played a crowning role in critical philosophy. From Hegel to Marx, to Foucault and beyond – Duncan Kennedy, Christoph Menke, the contributors to this Symposium – the critique of rights has always represented an essential and inescapable step in the critique of modern Western society. The reason is plain: conceptions of natural rights, human rights, and civil rights have been central to the founding of modern political thought (from Hobbes, Locke, and Wollstonecraft forward), to the birth and flourishing of legal and political liberalism (in Rawls and Habermas), to the establishment of regimes of civil …

The Integrative Effects Of Global Legal Pluralism, Monica Hakimi

Faculty Scholarship

International lawyers widely understand that legal pluralism is a fact of global life and that it can, in certain settings, be desirable. But many still approach it with some trepidation. A prominent skeptical claim is that pluralist structures lack the integrative resources that unify people around a shared governance project. This claim has been prominent with respect to two kinds of conflicts that are routine in international law: (1) conflicts that play out within a single international legal arrangement, and (2) conflicts that cut across multiple legal arrangements. For both, the skeptical claim is directed at the pluralist structure itself. …

Democracy & Religion: Some Variations & Hard Questions, Kent Greenawalt

Faculty Scholarship

The ideas sketched here concern the nonestablishment and free exercise norms expressed in the U.S. Constitution, their application to governmental institutions from legislatures to prisons and the military, the place of religion in the curricula of public schools, and the proper role of religious convictions in lawmaking. A major concern of the essay is the problem of achieving an appropriate balance between governmental neutrality toward religion, as required by the nonestablishment norm, and governmental accommodation of religious practices that would otherwise violate ordinary laws, as required by the free exercise norm. A recurring theme is the complexity of the issues …

On Dancy’S Account Of Practical Reasoning, Joseph Raz

Faculty Scholarship

Dancy's main thesis is that the conclusion of practical reasoning is an action, and indeed that makes the reasoning practical. I trace his argument, suggest improvements to its superficial deficiencies, and conclude that it fails because Dancy misunderstands the nature of reasoning.

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use …

Edward Snowden, National Security Whistleblowing, And Civil Disobedience, David E. Pozen

Faculty Scholarship

No recent whistleblower has been more lionized or vilified than Edward Snowden. He has been nominated for the Nobel Peace Prize and denounced as a "total traitor" deserving of the death penalty. In these debates, Snowden's defenders tend to portray him as a civil disobedient. Yet for a range of reasons, Snowden's situation does not map neatly onto traditional theories of civil disobedience. The same holds true for most cases of national security whistleblowing.

The contradictory and confused responses that these cases provoke, this essay suggests, are not just the product of polarized politics or insufficient information. Rather, they reflect …

Identity And Social Bonds, Joseph Raz

Faculty Scholarship

I first argue that there is no problem about how to justify partialities (though there is a difficulty in justifying impartialities). Then I consider the role of consent in justifying rights and duties, using voluntary associations as a case in which consent has an important but limited role in doing so, a role determined and circumscribed by evaluative considerations. The values explain why consent can bind and bind one to act as one does not wish to do and even as one judges to be ill advised. That opens the way to an explanation of how value considerations relate to …

On Waldron's Critique Of Raz On Human Rights, Joseph Raz

Faculty Scholarship

This commentary responds to Waldron’s “Human Rights: A Critique of the Raz/Rawls Approach”. It points out that some supposed criticisms are nothing more than observations on conditions that any account of rights must meet, and that Waldron’s objections to Raz are due to misunderstanding his thesis and its theoretical goal. The short comment tries to clarify that goal.

Sparking King's Revolution, Bernard E. Harcourt

Faculty Scholarship

Fifty years ago, Martin Luther King, Jr., protested our country’s counterinsurgency war in Vietnam. King passionately decried the bombings and civilian deaths, the destruction of families and villages, and the herding of the population into “concentration camps.” King denounced our imperialist arrogance and urged “a radical revolution of values.” From the pulpit at Riverside Church in New York City, King declared: “These are revolutionary times.” Indeed they were. And if anything, they have become even more so today.

Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt

Faculty Scholarship

We are going through an unprecedented period of political instability. With the rise of the alt-right and of xenophobic sentiment, and the fallout of neoliberal government policies, our political future is at stake. These times call for the type of critical theory and praxis that gave rise to the Frankfurt School in the 1920s and to the critical ferment of the 1970s. Yet, in the face of our crises today, contemporary critical theory seems disarmed.

Critical theory is in disarray because of a wave of anti-foundational challenges in the 1960s that shattered the epistemological foundations of the Frankfurt School. The …

Intention And Motivation, Joseph Raz

Faculty Scholarship

What is the role of intentions in the actions intended? What do they contribute, and how do they contribute to the occurrence of the intended actions?

The paper will offer an account of acting with an intention and of having an intention to act. It will not offer an account of intentional action, merely suggesting that when intentional actions are not actions done with an intention, their explanation as intentional relates to that of actions with intentions, showing how like them and unlike them they are. Motivation will be discussed mainly to distinguish its role in leading to action from …

Can Moral Principles Change?, Joseph Raz

Faculty Scholarship

The paper considers the main arguments against the possibility that basic normative principles can change, and finds them wanting. The principal argument discussed derives from the claim that normative considerations are intelligible, and therefore that they can be explained, and their explanations presuppose the prior existence of basic normative principles. The intelligibility thesis is affirmed but the implication that basic change is impossible is denied. Subsumptive explanations are contrasted with explanations by analogy. Later in the paper, other objections are considered more briefly: that normative properties are queer, that they are unconnected to the rest of reality, and therefore cannot …

Why The State?, Joseph Raz

Faculty Scholarship

I offer two questions for the price of one: Why do so many jurisprudential theories focus on the state? And what is it about the State that gives it a special place in our social arrangements? I do not mean these to address all aspects of states. They are questions about the law or legal systems of states.

We have to be open to a negative answer to the second question, thus being critical of jurisprudential theories that focus more or less exclusively on the state. That need not deny that states have their own legal systems. It could merely …

On The Moral Significance Of Sacrifice, Joseph Raz

Faculty Scholarship

The paper offers a few reflections on moral implications of making sacrifices and of possible duties to make sacrifices. It does not provide an exhaustive or a systematic account of the subject. There are too many disparate questions, and too many distant perspectives from which to examine them to allow for a systematic let alone an exhaustive account, and too many factual issues that I am not aware of. Needless to say, the observations that follow are in part stimulated by the popularity of some views that are mistaken. I will not however examine any specific view or account of …

Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski

Faculty Scholarship

The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely …

A Hedgehog's Unity Of Value, Joseph Raz

Faculty Scholarship

The paper examines various interpretations of Dworkin’s thesis of the Unity of Value, as expressed and defended in his book Justice for Hedgehogs. Dworkin’s arguments for various aspects of his unity of value thesis are relied on in interpreting the which is then compared with versions of value pluralism.

The Guise Of The Bad, Joseph Raz

Faculty Scholarship

My topic is the possibility of acting in the belief that the action is bad and for the reason that it is, as the agent believes, bad. On route, I examine another question – namely whether agents can, without having any relevant false beliefs, perform actions motivated by the badness of those actions. The main worry is the compatibility of action for the sake of the bad with the thesis of the Guise of the Good (roughly that actions undertaken with an intention to perform them are undertaken because they are, as the agents see things, good in some respects). …

Value And The Weight Of Practical Reasons, Joseph Raz

Faculty Scholarship

Assuming that the value of options (actions, activities, or omissions) constitutes the proximate reason for pursuing them, this chapter considers whether we have reason to promote or maximise value. A proper argument would require establishing a negative, but raising doubts is less demanding — explaining some aspects of the relation between values and reasons that enable us to dispense with the doubtful thesis by illustrating alternative relations between values and reasons. Theses that value should be promoted are accompanied by a way of determining the strength of reasons (the stronger reason promotes more value). This chapter develops theoretical doubts about …

Comments On The Morality Of Freedom, Joseph Raz

Faculty Scholarship

The paper mixes comments on the ambitions that motivated writing The Morality of Freedom with observations on comments on the book, made at a conference in Jerusalem in 2016, by Japa Pallikkathayil, Avishai Margalit, Michael Otsuka, Jon Quong, Daniel Viehoff, Asaf Sharon and Arudra Burra. It acknowledges some of the critical points made while resisting others. Its strives to combine clarification of some of the themes in the book with recognition that its ideas require further development, and can be developed in various directions.

The Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America, David Pozen

Faculty Scholarship

This essay reframes the debate over the "growing disjunction" between legal scholarship and legal practice. Law review articles continue to make the world a better place, the essay stipulates. But are judicial opinions becoming less useful to students and scholars? A rigorous analysis and concrete prescriptions follow.

Irb Licensing, Philip A. Hamburger

Faculty Scholarship

This chapter examines conflicting norms in the government's licensing of speech and the press on “human-subjects research” through institutional review boards (IRBs). It begins by discussing licensing and why the prohibition of it is so fundamental and prroceeds by providing an overview of the structure of institutional review board licensing. It then highlights the unconstitutionality of IRB laws, arguing that the use of IRBs violates the principles of academic freedom. It asserts that licensing of speech or the press was a method of controlling the press employed by the Inquisition and the Star Chamber, and the First Amendment unequivocally barred …

Intention And Value, Joseph Raz

Faculty Scholarship

The paper sketches the role of reasons and intentions in leading to action with an intention, explaining the way possession of rational powers transforms the formation of intentions. Part One explains how when humans act with an intention they act in the belief that there is value in the action. Part Two explains the relative role of value and intention in “producing” the action, and relates their role to that of motivation.

Why Restate The Bundle? The Disintegration Of The Restatement Of Property, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The American Law Institute (ALI) has devoted a great deal of time and energy to restating the law of property. To date, the ALI has produced 17 volumes that bear the name First, Second, or Third Restatement of Property. There is unquestionably much that is valuable in these materials. On the whole, however, the effort has been a disappointment. Some volumes seek faithfully to restate the consensus view of the law; others are transparently devoted to law reform. The ratio of reform to restatement has increased over time, to the point where significant portions of the Third Restatement …

Normativity: The Place Of Reasoning, Joseph Raz

Faculty Scholarship

It is more or less common ground that an important aspect of the explanation of normativity relates it to the way Reason (our rational powers), reasons (for beliefs, emotions, actions, etc.) and reasoning, with all its varieties and domains, are inter-connected. The relation of reasoning to reasons is the topic of this this paper. It does not start from a tabula rasa. It presupposes that normativity has to do with the ability to respond rationally to reasons, and with responding to reasons with the use of our rational powers. The question is where does reasoning fit in?

I will compare …

On Normativity And Responsibility: Responses, Joseph Raz

Faculty Scholarship

Contains responses to comments by Chang, Hestein and Heuer on "From Normativity to Responsibility". The paper responds to various criticisms especially about methodology, the bearing of a secure area of competence on responsibility, the univocality of 'reasons', the relations of value and practical reasons, the scope of rational powers, the function of reasons to be rational, and most extensively about following reasons and the distinction between standard and non-standard reasons (where Heuer has pointed out some deficiencies in the discussion of the matter in the book).