Law Commons^™

Law And Redemption: Expounding And Expanding Robert Cover’S Nomos And Narrative, Samuel J. Levine

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This Article explores two interrelated themes that distinguish much of Robert Cover's scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover's, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover's foundation, …

"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman

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At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.

This Essay explores another overlooked instance of constitutional secularization. Many …

A Philosophy Of Contract Law For Artificial Intelligence: Shared Intentionality, John Linarelli

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This is a chapter for the forthcoming book, Contracting and Contract Law in the Age of Artificial Intelligence, edited by Martin Ebers, Cristina Poncibò, and Mimi Zou, to be published by Hart Publishing. The aim of this chapter is to offer a general theory of contract law to account for the inclusion of artificial intelligence in contract practices. Artificial intelligence brings out that what makes contract law a distinctive form of legal obligation is shared intentionality. I refer to this insight as the shared intentionality thesis. Shared intentionality is the psychological capacity of one agent to share and pursue a …

Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine

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Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …

Are We (Americans) All International Realists Now?, Harlan G. Cohen

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Is American international law distinctly legal realist? The claim is often made, but underexplored. What would it mean for American international law scholarship and practice to be legal realist in its orientation? Where would such an orientation come from, and what do those origin stories mean for current international law work? Are there common realist-inspired approaches within the varied schools of American international law scholarship? Does wielding those approaches produce distinctly American views on international law doctrine, its operation, or its function? And if American international law scholarship and practice is, in these ways, somewhat distinct, what does it mean …

Politics And The Supreme Court: The Need For Ideological Balance, David Orentlicher

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No abstract provided.

Feminist Judging Matters: How Feminist Theory And Methods Affect The Process Of Judgment, Linda L. Berger, Bridget J. Crawford, Kathryn M. Stanchi

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Professor Linda Berger rejoins her Feminist Judgments: Rewritten Opinions of the United States Supreme Court coauthors in this essay presenting feminism as the foundation for a developing form of rich, complex, and practical legal scholarship-the lens and the means through which we may approach and resolve many legal problems. First, this essay explores the intellectual foundations of feminist legal theory and situates the United States and international feminist judgments projects within that scholarly tradition. It next considers how the feminist judgments projects move beyond traditional academic scholarship to bridge the gap between the real-world practice of law and feminist theory. …

Models Of Law, Christian Turner

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The more we examine what is behind our most difficult legal questions, the more puzzling it can seem that we continue both to disagree strongly and, yet, to cooperate. If law is a reasoned enterprise, how is it that we are neither torn apart nor homogenized by our long social practice of it? I resolve this puzzle, and arrive at a richer understanding of law, using the idea of modeling familiar from the natural sciences and mathematics. I show (a) that theorists can model legal systems as abstract systems of institutions, information flows, and institutional processing or reasoning and (b) …

Luck, Justice And Systemic Financial Risk, John Linarelli

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Systemic financial risk is one of the most significant collective action problems facing societies. The Great Recession brought attention to a tragedy of the commons in capital markets, in which market participants, from first-time homebuyers to Wall Street financiers, acted in ways beneficial to themselves individually, but which together caused substantial collective harm. Two kinds of risk are at play in complex chains of transactions in financial markets: ordinary market risk and systemic risk. Two moral questions are relevant in such cases. First, from the standpoint of interactional morality, does a person have a moral duty to avoid risk of …

Toward A Political Theory For Private International Law, John Linarelli

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Private international law presents a dilemma for legal and political philosophy. Legal and political philosophers have ignored private international law, with only a few scattered attempts to evaluate its claims. Private international law offers a powerful set of counterexamples that put into serious doubt attempts to link law’s authority only or primarily to relationships between states and citizens. No society, state, or other practice-mediated relationship can serve as grounds for the authority of private international law to persons to whom it applies but who are outside of such relationships. Private international law affects the normative situations of persons entirely outside …

Speaking Of Stories And Law, Linda H. Edwards

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A recurring question in narrative scholarship has been the relationship of narrative to law. Most narrative scholars agree that stories are central to law. As Stephen Paskey recently pointed out, stories are more than a tool for persuasion. They are embedded in law’s very structure. But how does that work? Are rules just stories articulated in a different form?

We have barely begun to explore narrative’s roles, but it is already clear that, in the words of Meryl Streep, “it’s complicated.” A conceptual map of what we’ve learned so far can help us unpack the complexity. Otherwise we may run …

Alternative Conceptions Of Legal Rhetoric: Open Hand, Closed Fist, Linda L. Berger

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An open-handed image of rhetoric presents an argument against the closed fist of logic and the “nasty, brutish, and short” depictions associated with legal rhetoric. In 1985, Robert Cover laid bare the field of pain and death where legal interpretation plays itself out in human consequences. Five years later, Gerald Wetlaufer described a landscape of brutal certainty as the backdrop for much of legal rhetoric. And the arena of criminal trials has long been recognizable as a bleak setting within which “[j]ustice determines blame and administers pain in a contest between the offender and the state . . .”

My …

Concept And Contract In The Future Of International Law, John Linarelli

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This is an article written for a symposium on Joel Trachtman’s book, The Future of International Law. I first deal with the contractarian features of Trachtman’s approach to understanding international law. Using the tools of new institutional economics and constitutional economics, Trachtman seeks to describe the features of an international legal system. This is positive political theory or at least relates substantially to the methods of positive political theory. I explore a different approach, one connecting to normative political theory. In its ambitious sense, my approach would see international law as a form of moral argument, but in its modest …

How Trade Law Changed: Why It Should Change Again, John Linarelli

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No abstract provided.

The Limited Case For Permitting Sme Procurement Preferences In The Wto Agreement On Government Procurement, John Linarelli

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This is a chapter in the book, Sue Arrowsmith & Robert D. Anderson, The WTO Regime on Government Procurement: Challenge and Reform (Cambridge University Press, 2011). The chapter puts under scrutiny public procurement policies designed to benefit SMEs per se, as small or medium sized enterprises, and to evaluate whether the GPA (and hence possibly other trade agreements liberalizing procurement markets) should be more accommodating to these policies, even though these policies might restrict international trade. The chapter also evaluates whether the GPA should be more accommodating to policies designed to benefit firms controlled by individuals who belong to historically …

Reasonable Pluralism And International Law, John Linarelli

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No abstract provided.

When Does Might Make Right? Using Force For Regime Change, John Linarelli

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Should states use force to bring about regime change? International law recognizes no such grounds. This paper seeks to provide guidance from moral theory. The aim of this paper is to identify the moral grounds for the use of armed force by one state or a group of states, against another state, when the intention of the intervening states is to achieve a fundamental change in the character of the political and legal institutions of the other state. Lawyers tend to place the argument for regime change intervention within putative humanitarian intervention doctrines. The moral justification for humanitarian intervention is …

International Law: Practical Authority, Global Justice, John Linarelli

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No abstract provided.

Race And Essentialism In Gloria Steinem, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper reflects on Angela Harris's essay Race and Essentialism in Feminist Legal Theory.. Harris is one of the foremost law professors in the country. She has co-written or coedited several important critical race theory and feminist theory casebooks as well as a casebook for a first-year course. This particular essay is one of the most cited critical race theory pieces ever, having been referred to in at least 796 articles. Professor Cooper joins a group of distinguished peers, describing the power Harris' work has on them now and when they were developing scholars.

Surveillance And Identity Performance: Some Thoughts Inspired By Martin Luther King, Frank Rudy Cooper

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In this article, Professor Frank Cooper explores self-actualization, the process whereby people create their own identity by means of experimenting with different behaviors, in the context of Martin Luther King, Jr. and the FBI surveillance he was subjected to in the time leading up to his death. He argues that it is possible for people to live in an environment that is more or less alienating to the way in which they perform their identities. Performativity scholars such as Devon Carbado and Mitu Gulati say that people can have an internal sense of self that is distinct from the identity …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

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No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating …

What Do We Owe Each Other In The Global Economic Order?: Constructivist And Contractualist Accounts, John Linarelli

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No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating …

Nietzsche In Law's Cathedral: Beyond Reason And Postmodernism, John Linarelli

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Nietzsche had very little to say about law and what he did say is fragmentary and sporadic. Nietzsche's philosophy, however, offers a basis for theorizing about law. I use Nietzsche's important works to interpret two major movements in legal thought. The first part of the paper examines how Nietzsche's philosophy augments our understanding of deontological theories about the law. Nietzsche produced a substantial ethical theory. The second part of the paper examines how Nietzsche's philosophy helps us to understand law and economics. Nietzsche had a great deal to say about the intellectual predecessor to law and economics, utilitarianism, and his …

Treaty Governance, Intellectual Property And Biodiversity, John Linarelli

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When resources become valuable, various social and institutional pressures come to bear to enclose them in a property rights regime. Given the substantial progress of biotechnology and the life sciences, genetic resources found in biological diversity are experiencing such pressures. The question of how much commodification or commercialization of genetic resources is appropriate is of global concern; it affects the distribution of wealth in and among societies and countries. This article explores the emerging treaty law on intellectual property and biodiversity. It inquires What is biodiversity? and Why is biodiversity preservation important? It then focuses on the United Nations Framework …

Understanding "Depolicing": Symbiosis Theory And Critical Cultural Theory, Frank Rudy Cooper

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Doctrinal analyses help us understand what law does. Identity theory helps us understand why law operates in certain ways. Cultural studies can help us understand that where law operates is crucial to both how it operates, and on whom.

Nancy Ehrenreich's Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems is especially valuable because her symbiosis theory expands identity theory. Ehrenreich turns our attention to the subjectivities of those who are partly subordinated but mostly privileged-those who accept their own oppression in return for the "compensation" of being able to use the law to subordinate others. Nonetheless, symbiosis theory …

The European Bank For Reconstruction And Development: Legal And Policy Issues, John Linarelli

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No abstract provided.

The Problem Of Dirty Hands, Leslie C. Griffin

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This essay examines what Sartre called the problem of "dirty hands" as it applies to two issues in contemporary Catholic discussions of political morality. Beginning with Michael Walzer's work on dirty hands, the essay next identifies four approaches to this problem characteristic of Christian ethics. These four categories are then applied to analysis of two issues: conflicts of conscience that may confront Catholic politicians as a result of the responsibilities of public office and the church's exclusion of clergy and religious from holding public