Law Commons^™

“You Keep Using That Word”: Why Privacy Doesn’T Mean What Lawyers Think, Joshua A.T. Fairfield

Scholarly Articles

This article explores how the need to define privacy has impeded our ability to protect it in law.

The meaning of “privacy” is notoriously hard to pin down. This article contends that the problem is not with the word “privacy,” but with the act of trying to pin it down. The problem lies with the act of definition itself and is particularly acute when the words in question have deep-seated and longstanding common-language meanings, such as liberty, freedom, dignity, and certainly privacy. If one wishes to determine what words like these actually mean to people, definition is the wrong tool …

John Stuart Mill’S Harm Principle And Free Speech: Expanding The Notion Of Harm, Melina Constantine Bell

Scholarly Articles

This article advocates employing John Stuart Mill’s harm principle to set the boundary for unregulated free speech, and his Greatest Happiness Principle to regulate speech outside that boundary because it threatens unconsented-to harm. Supplementing the harm principle with an offense principle is unnecessary and undesirable if our conception of harm integrates recent empirical evidence unavailable to Mill. For example, current research uncovers the tangible harms individuals suffer directly from bigoted speech, as well as the indirect harms generated by the systemic oppression and epistemic injustice that bigoted speech constructs and reinforces. Using Mill’s ethical framework with an updated notion of …

Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. Macdonnell

Scholarly Articles

Judicial honesty or judicial candor is the subject of significant scholarly attention, but it is not the focus of this Essay. Rather, the author's focus is on the importance that appearing honest has on the persuasive force of an opinion and the dangers associated with failing to achieve that goal. This distinction is not intended to suggest Justices should seek apparent honesty while not being actually honest. Rather, this Essay emphasizes that actually honest opinions must also be apparently honest. Thus, judicial candor is necessary to apparent honesty, but it is not always sufficient on its own.

To support the …

Gamesmanship And Criminal Process, John D. King

Scholarly Articles

We first learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal litigation. Allegations of gamesmanship—the aggressive and strategic use of rules that violate some sense of decorum or culture yet remain within the formal rules of engagement—cut across both contexts. This Article examines what sports can teach us about gamesmanship in …

On Hostility And Hospitality: Othering Pierre Legrand, Russell A. Miller

Scholarly Articles

Pierre Legrand's return to the pages of the American Journal of Comparative Law after nearly twenty years is cause for reflection on the reasons for this prolific comparatist's absence from one of the discipline's leading scholarly fora. One reason is the widespread disdain aimed at Legrand as a result of his persistent, sharply critical, and often pointedly personal crusade against the discipline's accepted approaches and their most prominent practitioners. This is partly the nature of the article he publishes in this collection, which features a no-holds-bared, uncomplimentary assessment of the work of James Gordley. In this Article I argue that …

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 …

Schopenhauer's Theory Of Justice, Raymond B. Marcin

Scholarly Articles

This Article first delves briefly into Schopenhauer's life story. Then Schopenhauer's place in the line of Western philosophers is examined, particularly his positioning with respect to Kant and Hegel. Then follows an inquiry into the metaphysical bases of Schopenhauer's theory of justice, the theory of justice proper, and a discussion of some of its implications for the human condition. Interspersed throughout are analyses of the relationships between Schopenhauer's thought and contemporary quantum physics on the one hand, and Eastern philosophical approaches and understandings on the other. Because Schopenhauer's theory of justice is an ontology, there is a need throughout much …

The City Of Babel: Ancient & Modern, Raymond B. Marcin

Scholarly Articles

No abstract provided.

Justice And Love, Raymond B. Marcin

Scholarly Articles

No abstract provided.