Law Commons^™

Freedom To And Freedom From: A Response To Garvey And Armacost With A Tinge Of Legal Perfectionism, Steve Sheppard

Steve Sheppard

In his article Control Freaks, 47 Drake L. Rev. 1 (1998), Professor John Garvey offers a controversial explanation of how freedom works and why it is good, which is something the traditional American narrative of freedom assumes without attempting a further justification. Professor Garvey’s theory of freedom depends on freedom’s instrumental quality. Freedom is the mechanism that protects a citizen’s abilities to lead a good life and to act for moral purposes. Professor Garvey asserts that lawmakers must first evaluate the morality of an act before they decide whether it deserves protection. When an act does not serve a moral …

The Perfectionisms Of John Rawls, Steve Sheppard

Steve Sheppard

John Rawls’s strict theory of perfectionism would have more appeal if it were reconstructed by balancing it with moderate cultural perfectionism. In his work, A Theory of Justice, John Rawls framed the modern idea of legal perfectionism. In his thought experiment, Rawls gave different players various theories of justice that contrast with his “original position,” in which principles of justice are decided from behind a veil of ignorance. The first of the theories, strict perfectionism, argued society should be structured in a way that produces the utmost levels of excellence in someone, but not everyone. The second theory, moderate perfectionism, …

The State Interest In The Good Citizen: Constitutional Balance Between The Citizen And The Perfectionist State, Steve Sheppard

Steve Sheppard

Judges must have flexibility when responding to the changing norms of justice in society, but they must also maintain predictability to enhance the cultural acceptance of the Court’s authority and the authority of law in society. Predictability demands that a rationale for each decision be communicated by the authors of opinions so that it can be replicable by other courts.

The debate over a preferred method of adjudication, balancing or categorical, is moot because the two methods are not mutually exclusive. The important issue is the definition of interests to be promoted or discouraged by law, which must also be …