Law Commons^™

There Are Limits To The American Renaissance Over Ukraine, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Ukrainians Are Fighting And Dying To Defend Their Homes. Could I Do The Same?, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

What Does The Jan. 6 Committee Hope To Learn From Sen. Doug Mastriano?, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Why Aim Law Toward Human Survival, John William Draper

Librarian Scholarship at Penn Carey Law

Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.

If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.

There is no better choice. You and all your relatives have rights. The …

Why Do Pa. Courts Have A Say On Mail-In Voting? They Probably Shouldn't, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

How The U.S. Supreme Court Is Inviting The Senate To Scrap The Filibuster, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman

All Faculty Scholarship

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …

The Big Lie Is Undermining Our Democracy. Both Parties Need To Defeat It, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Sure, Things Seem Bad. But There Are Some Reasons To Be Cheerful In 2022, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

All Faculty Scholarship

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

On Controlling The Supreme Court: Is There A Future For American Law?, Bruce Ledewitz

Ledewitz Papers

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

“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 …

This Earthly Frame: The Making Of American Secularism, Bruce Ledewitz

Ledewitz Papers

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

Mala Prohibita, The Wrongfulness Constraint, And The Problem Of Overcriminalization, Youngjae Lee

Faculty Scholarship

The wrongfulness constraint, as a principle of criminalization, is supposed to preclude criminalization in the absence of wrongfulness. Crimes that look especially problematic from the perspective of the wrongfulness constraint are mala prohibita offenses. The aim of this Essay is to consider the question whether the wrongfulness constraint can serve as an effective tool to curb overcriminalization by looking at the case of mala prohibita offenses. This Essay defends the following propositions. First, because of the availability of an array of tools to defend various mala prohibita offenses as satisfying the wrongfulness constraint, it is often not a straightforward matter …

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 …

The Stoic Litigator, Leonard M. Niehoff

Articles

A variety of events over the past several years have renewed my conversations with some reliable old friends. And I mean very old. I refer here to the Stoic philosophers, most of whom did their thinking and writing around the turn of the Common Era.

The Stoics took their name from the central square of Athens, the Stoa Poikile, where Zeno is generally credited with founding the school in the early part of the third century BCE. Various philosophers over the next five centuries identified themselves as Stoics, so the label takes in lots of personalities and lots of territory. …

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 …

Theory Matters—And Ten More Things I Learned From Martha Chamallas About Feminism, Law, And Gender, Deborah L. Brake

Articles

This Festschrift article celebrates the scholarship of Martha Chamallas, Distinguished University Professor and Robert J. Lynn Chair in Law Emeritus of the Ohio State University Moritz College of Law, and one of the most impactful scholars of feminist legal theory and employment discrimination of her generation. Mining the insights of Chamallas’s body of work, the article identifies ten core “lessons” relating to feminism and law drawn from her scholarship and academic career. It then weaves in summaries and synthesis of her published works with discussion of subsequent legal and social developments since their publication. These lessons (e.g., feminism is plural; …

The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb

All Faculty Scholarship

The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby …

Against The Wind: James Boyd White And The Struggle To Keep Law Alive, Todd M. Stafford

Publications

No abstract provided.

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

Scholarly Works

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 …

Prison Transfers And The Mootness Doctrine: Disappearing The Rule Of Law In Prisons, Spearit

Book Chapters

Access to the legal system does not come easily for people in prison. There are administrative procedures that must be exhausted; federal legislation like the Prison Litigation Reform Act disadvantages prisoner-petitioners in multiple ways, including by imposing significant limits on damages and creating financial disincentives for lawyers to take on cases. Such onerous legislation and lack of legal aid ensure genuine issues evade redress. Sometimes, however, the law itself is the cause of evasion. Sometimes doctrine prevents the Rule of Law from functioning in prison, particularly when a prison-transfer moots a legal claim. In the most egregious situations, a transfer …

Emotions And Precedent, Emily Kidd White

All Papers

The philosophy of emotion raises complications for theories of precedent. This chapter argues that it is productive to think of the effect of some precedents as facets of legal reasoning that are related to the use and understanding of legal concepts as thick concepts. In legal reasoning, precedents are routinely invoked to explicate, and/or clarify the content of legal concepts that are at issue in a case. This chapter develops an argument by Bernard Williams, i.e., that one must avoid the risk of over-generalizing the relationship of emotions to thick concepts, by placing it in the context of legal reasoning. …

Notes Toward A Supreme (Legal) Fiction, Emily Kidd White

All Papers

Maksymilian Del Mar’s new book, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication offers a finely drawn map of various ways of reasoning in and through law. The book is about the ways that thoughts, values, commitments and ways of seeing, move, take hold, settle, startle and – at times – release grip, reorient, and/or transmute. It is a book that is teeming with references. There are threads to pull at everywhere.

The Myth Of Legal Realist Skepticism, Dan Priel

All Papers

Here are some things everyone knows about the legal realists: They didn’t believe in legal rules, they thought—and demonstrated—that law is inherently indeterminate, and they taught us that it is the personality of the judge that decided cases. To the extent that they studied legal doctrine, it was in order to demonstrate its incoherence. This is why they “vociferously objected” to the Restatements. It is the victory of their ideas that killed the doctrinal legal treatise as a respectable form of scholarship in the United States. In addition to this jurisprudential radicalism, the legal realists were also politically radical. Their …

Feminist Relational Theory, Christine M. Koggel, Ami Harbin, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

Accounts of human beings as essentially social have had a long history in philosophy as reflected in the Ancient Greeks; in African and Asian philosophy; in Modern European thinkers such as Mary Wollstonecraft, David Hume, Adam Smith, and Karl Marx; in continental philosophy; in pragmatism; in Indigenous thought, and in contemporary communitarian theories. It can be said, then, that the language of relational theory has taken a variety of forms. That relational theory is broad and captures various threads in the history of philosophy is captured in the main title of this special issue, Relational Theory. That this special …

Animals As Legal Beings: Contesting Anthropocentric Legal Orders, By Maneesha Deckha, Jodi Lazare

Articles, Book Chapters, & Popular Press

Scholarship on animal rights has long been dominated by the widely held idea that justice for nonhuman animals will not be achieved until they are granted legal personhood. In Animals as Legal Beings: Contesting Anthropocentric Legal Orders, Maneesha Deckha provides an alternative legal classification for nonhuman animals. “Beingness,” rooted in relational feminism, post-colonial theory, and critical animal studies, recognizes nonhuman animals’ inherent value, while avoiding some of the downsides to legal personhood, namely, its embeddedness in the imperialist liberal individualism that characterizes western legal systems. Given its anthropocentric nature, personhood must be displaced as the aspirational classification for animals. …

Righting Health Policy: Bioethics, Political Philosophy, And The Normative Justification Of Health Law And Policy, D. Robert Macdougall

Publications and Research

In Righting Health Policy, D. Robert MacDougall argues that bioethics needs but does not have adequate tools for justifying law and policy. Bioethics’ tools are mostly theories about what we owe each other. But justifying laws and policies requires more; at a minimum, it requires tools for explaining the legitimacy of actions intended to control or influence others. It consequently requires political, rather than moral, philosophy. After showing how bioethicists have consistently failed to use tools suitable for achieving their political aims, MacDougall develops an interpretation of Kant’s political philosophy. On this account the legitimacy of health laws does …

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 …