Law Commons^™

The Origin, Development, And Regulation Of Norms, Richard H. Mcadams

Michigan Law Review

For decades, sociologists have employed the concept of social norms to explain how society shapes individual behavior. In recent years, economists and rational choice theorists in philosophy and political science have started to use individual behavior to explain the origin and function of norms. For many in this group, the focus of study is the interaction of law and norms, of formal and informal rules. Exemplified by Robert Ellickson's Order Without Law, this literature uses norms to develop more robust explanations of behavior and to predict more accurately the effect of legal rules. Norms turn out to matter in legal …

The Empty Circles Of Liberal Justification, Pierre Schlag

Michigan Law Review

American liberal thinkers are fascinated with the justification of the liberal state. It is this question of justification that inspires and organizes the work of such leading liberal thinkers as John Rawls, Ronald Dworkin, Frank Michelman, and Bruce Ackerman. The manifest import and prevalence of the question of justification among liberal thinkers makes it possible to speak here of a certain "practice of liberal justification." This practice displays a certain order and certain recursive characteristics. It is composed of a common ontology and a common narrative. It poses for itself a series of recursive intellectual problems answered with a stock …

Ignorance Of Law Is An Excuse - But Only For The Virtuous, Dan M. Kahan

Michigan Law Review

It's axiomatic that "ignorance of the law is no excuse." My aim in this essay is to examine what the "mistake of law doctrine" reveals about the relationship between criminal law and morality in general and about the law's understanding of moral responsibility in particular. The conventional understanding of the mistake of law doctrine rests on two premises, which are encapsulated in the Holmesian epigrams with which I've started this essay. The first is liberal positivism. As a descriptive claim, liberal positivism holds that the content of the law can be identified without reference to morality: one needn't be a …

Book Review: Postmodern Legal Movements: Law And Jurisprudence At Century's End By Gary Minda, Chris Sagers

Law Faculty Articles and Essays

Postmodem Legal Movements does two things. First, the bulk of the book provides an overview of American jurisprudence, from Christopher Columbus Langdell to the present. This overview is necessary because, in order to understand "postmodem forms of jurisprudence, we must first explore what came before postmodernism, that is, modernism" (p. 5). Second, the relatively short latter portion of the book presents an argument about the current state of American legal scholarship and its future. Minda's picture of contemporary legal thought is that of a paradigm shift in the making.

Postmodern Legal Movements will prove useful to those in search of …

Equality Revisited, Christopher J. Peters

All Faculty Scholarship

In legal, political, and philosophical discourse, and indeed in everyday life, equality often plays the role of a normatively significant prescriptive principle, a principle that provides reasons for action. Professor Peters, however, joins Peter Westen and others who argue that the traditional statement of prescriptive equality-equals are entitled to equal treatment--is normatively empty because it is a tautology. Like Professor Westen, Professor Peters notes that this traditional principle translates into a statement of simple redundancy: people entitled to equal treatment are entitled to equal treatment. Unlike Professor Westen, however, Professor Peters discerns a nontautological principle of equality, which claims that …

Pavčnik's Theory Of Legal Decisionmaking: An Introduction, Louis E. Wolcher

Washington Law Review

Professor Pavčnik is one of the most prolific and interesting of those academics from the formerly communist states of Central and Eastern Europe who are currently writing on topics germane to legal philosophy. I had the privilege of co-teaching two classes with him at the University of Ljubljana in the fall of 1996-one on legal theory and the other on the philosophy of law-and in the course of our collaboration I acquired a great deal of respect for both the man and his work. The editors of the Washington Law Review, having had the excellent judgment to want to publish …

Legal Decisionmaking As A Responsible Intellectual Activity: A Continental Point Of View, Marijan Pavčnik

Washington Law Review

The legal decision in a concrete case is never completely given in advance in the statute. A theory of legal decisionmaking that sees the decider as someone who merely "applies the law" is inadequate to explain what goes on in the process of legal decisionmaking. The legal decision is a value synthesis assessing the normative starting point with regard to the factual starting point, and vice versa. This means that a legal decision can only be made when the normative state of constituent facts of the case has been formed on the basis of the statute, when from the life …

Where No Man Has Gone Before: Star Trek And The Death Of Cultural Relativism In America, Kenneth Anderson

Book Reviews

This 1997 Times Literary Supplement (London) essay reviews the 1996 Star Trek (Next Generation) film First Contact, along with a book of essays in cultural studies about Star Trek (Taylor Harrison, et al., Enterprise Zones: Critical Positions on Star Trek). Of greatest long term interest in the moral and political philosophy of Star Trek is the so-called Prime Directive - non interference in local culture on local planets. This Vietnam era ethic of cultural relativism was prominent in the original 1960s Star Trek series as much for its assertion as for being regularly violated by Captain Kirk and his crew. …

Where No Man Has Gone Before: Star Trek And The Death Of Cultural Relativism In America, Kenneth Anderson

Kenneth Anderson

Review Of Reason And Rhetoric In The Philosophy Of Hobbes, Donald J. Herzog

Reviews

In the 1960s, Quentin Skinner wrote a series of polemical if terse papers arguing that the conventional approach to the history of political theory was confused. Using Hobbes as something of a vehicle for his position, Skinner enunciated what is now well known as the "Cambridge" approach to political theory. He urged that we situate authors in their intellectual contexts so that we can isolate what is distinctive, perhaps subversive, in their use of language: only then, he argued, can we have any valid historical understanding on what they are doing in writing these weird books in the first place. …

Continuing Classroom Conversation Beyond The Well-Placed "Whys?", Bailey Kuklin, Jeffery J. Stemple

Faculty Scholarship

No abstract provided.

Fair Use In American And Continental Laws, Omar M.A. Obeidat

LLM Theses and Essays

Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees …

Book Review And Commentary: What Price Freedom?, Vincent A. Wellman

Law Faculty Research Publications

No abstract provided.

Law And Phrenology, Pierre Schlag

Publications

As the intellectual credentials of American law become increasingly dubious, the question arises: how has this discipline been intellectually organized to sustain belief among its academic practitioners? This Commentary explores the nineteenth-century pseudo-science of phrenology as a way of gaining insight into the intellectual organization of American law. Although there are, obviously, significant differences, the parallels are at once striking and edifying. Both phrenology and law emerged as disciplinary knowledges through attempts to cast them in the form of sciences. In both cases, the "sciences" were aesthetically organized around a fundamental ontology of reifications and animisms -- "faculties" in the …

The Law Of The Jubilee In Modern Perspective, Bruce Ledewitz

Ledewitz Papers

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

Law And The Coming Environmental Catastrophe, Bruce Ledewitz

Ledewitz Papers

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

Whoever Fights Monsters Should See To It That In The Process He Does Not Become A Monster: Hunting The Sexual Predator With Silver Bullets -- Federal Rules Of Evidence 413-415 -- And A Stake Through The Heart -- Kansas V. Hendricks, Joelle A. Moreno

Faculty Publications

No abstract provided.

Death Penalty: A Philosophical And Theological Perspective, 30 J. Marshall L. Rev. 463 (1997), Walter Berns, Nancy Bothne, William Bowers, Richard Dieter, Richard Land, James Lund, Austin Sarat

UIC Law Review

No abstract provided.

The Empty Circles Of Liberal Justification, Pierre Schlag

Publications

No abstract provided.

Habermas’S Discourse Theory Of Law And The Relationship Between Law And Religion, Mark C. Modak-Truran

Journal Articles

The relationship between law and religion has become the subject of a sustained and robust debate. However, unlike earlier theological attempts to ground law in religion or the Divine, participants in the modem debate rarely, if ever, argue for a theological or religious legitimation of law. Either implicitly or explicitly, there appears to be a modem consensus among legal scholars and philosophers that the world has been disenchanted. The world can no longer be viewed as an integrated, meaningful whole under a comprehensive religious or metaphysical worldview, and law can no longer be legitimized by its religious or metaphysical foundations. …

Law As The Continuation Of God By Other Means, Pierre Schlag

Publications

No abstract provided.

The Environment: Private Or Common Property?, Zev Trachtenberg

Oklahoma Law Review

No abstract provided.

Introduction: How Can Property Be Political?, Zev Trachtenberg

Oklahoma Law Review

No abstract provided.

The Public Interest In Private Property Rights, James L. Huffman

Oklahoma Law Review

No abstract provided.

Book Review Of The Strange Career Of Legal Liberalism, By Laura Kalman, Edward A. Purcell Jr.

Other Publications

No abstract provided.

Review Of On Voluntary Servitude: False Consciousness And The Theory Of Ideology, Donald J. Herzog

Reviews

Michael Rosen brings intoxicating erudition and an elegant if elusive prose style to crack—or pulverize—one of the most venerable chestnuts of social theory, the theory of ideology. For Rosen, the two central elements of that theory are (1) that societies are self-maintaining systems and (2) that they produce false consciousness in their members precisely because it helps to maintain society. And for Rosen, the theory is, well, a spectacular mess. Despite the efforts of such analytical Marxists as G. A. Cohen, he urges, no such view can be reconstructed in ways that begin to comport with our ordinary standards for …

Corporations, Criminal Law And The Color Of Money, Joseph Vining

Articles

This part of From Newton's Sleep, published by Princeton University Press in 1995 and in a paperback edition in early 1997, is reprinted by permission of the publisher. From Newton's Sleep is a book on the legal form of thought and its meaning for science and religion. It consists of some two hundred and fifty self-contained pieces arranged in eight sections. In its form, the book is much like and is meant to be much like the material with which lawyers routinely deal. Here, Law Quadrangle Notes excerpts a piece that touches on a subject of lively debate today, among …

What Law Is Like, George P. Fletcher

Faculty Scholarship

It is not easy to do philosophy in the tradition of Wittgenstein and Malcolm. The human mind gravitates toward authority – the Bible, great teachers, poets, gurus, even judges. Lawyers, in particular, are captives of authoritive constitutions, statutes, cases, and ruling doctrines. We cannot make a move without citing a source as a backup.

Perhaps this is the way it should be, for as lawyers or legal theorists, we speak in a particular legal culture and tradition. We cultivate that tradition, even as we dissent and subject it to criticism. The tradition is defined by the authorities that have shaped …