Law Commons^™

The Disutility Of Injustice, Paul H. Robinson, Geoffrey P. Goodwin, Michael Reisig

All Faculty Scholarship

For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment. That shift to desert has prompted concerns by two …

Protecting Indigenous Identity And Culture In The Modern Nation-State: A Case Study Of The Sami In Norway, Claire Lockerby

Independent Study Project (ISP) Collection

The plight of indigenous peoples around the world is a serious one, and without significant international action, many valuable cultural and linguistic traditions are in grave danger of disappearing altogether. Many of these indigenous groups have experienced detrimental consequences from the history of slavery, colonialism and imperialism, and the emergence of nation-states that stripped them of their autonomy and greatly threatened their way of life. Today, there are some positive examples of international and national efforts to protect indigenous peoples, but unfortunately, most indigenous populations remain dispossessed and underrepresented. Although the international community has established principles of unalienable human rights, …

Free Speech And The Myth Of The Internet As An Unintermediated Experience, Christopher S. Yoo

All Faculty Scholarship

In recent years, a growing number of commentators have raised concerns that the decisions made by Internet intermediaries — including last-mile network providers, search engines, social networking sites, and smartphones — are inhibiting free speech and have called for restrictions on their ability to prioritize or exclude content. Such calls ignore the fact that when mass communications are involved, intermediation helps end users to protect themselves from unwanted content and allows them to sift through the avalanche of desired content that grows ever larger every day. Intermediation also helps solve a number of classic economic problems associated with the Internet. …

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

Articles & Book Chapters

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Immigration, Association, And The Family, Matthew J. Lister

All Faculty Scholarship

In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why …

Against The Conventionalist Turn In Legal Theory: Dickson On Hart On The Rule Of Recognition, Michael S. Green

Popular Media

No abstract provided.

Diversity, Democracy And Dialogue In A Human Rights Framework, Carol C. Gould

Center for the Study of Ethics in Society Papers

Papers presented for the Center for the Study of Ethics in Society Western Michigan University, November 3, 2009

Moral Limits Of Dworkin's Theory Of Law And Legal Interpretation, David B. Lyons

Faculty Scholarship

At the foundation of Justice for Hedgehogs is a commitment to moral objectivity – the doctrine that there are right answers to moral questions. This nicely complements Dworkin’s legal theory, which holds that right answers to legal questions depend on right answers to moral questions. Without the doctrine of moral objectivity, Dworkin could not reasonably maintain, as he does, that law provides determinate answers to legal questions.

Copyright's Derivative Works Doctrine And An Upside-Down Proviso, Wendy J. Gordon

Scholarship Chronologically

It is sometimes observed that questions of "justice in acquisition" do not much arise any more. However, judges face those questions on a daily basis in courtrooms adjudicating copyright and patent matters. In United States copyright law, for example, an intriguing dilemma regarding derivative works has developed that raises what appears to be a new issue regarding John Locke's sufficiency proviso.

Draft Of Copyright's Derivative Works Doctrine And An Upside-Down Proviso - 2010, Wendy J. Gordon

Scholarship Chronologically

It is sometimes observed that questions of'justice in acquisition" do not much arise any more. However, judges face those questions on a daily basis in courtrooms adjudicating copyright and patent matters. In United States copyright law, for example, an intriguing dilemma regarding derivative works has developed that raises what appears to be a new issue regarding John Locke's sufficiency proviso.

Killing, Letting Die, And The Case For Mildly Punishing Bad Samaritanism, Ken M. Levy

Journal Articles

For over a century now, American scholars (among others) have been debating the merits of “bad-samaritan” laws – laws punishing people for failing to attempt “easy rescues.” Unfortunately, the opponents of bad-samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states even have bad-samaritan laws, and these laws impose only the most minimal punishment – either sub-$500 fines or short-term imprisonment.

This Article argues that this situation needs to be remedied. Every state should criminalize bad samaritanism. For, first, criminalization is required by the supreme value that we place on protecting human life, a …

Indivisibility And Linkage Arguments: A Reply To Gilabert, James W. Nickel

Articles

This reply discusses Pablo Gilabert's response to my article, "Rethinking Indivisibility." It welcomes his distinction between conceptual, normative, epistemic, and causal forms of support from one right to another. It denies, however, that "Rethinking Indivisibility" downplayed linkage arguments for human rights (although it did call for careful evaluation of such arguments), and rejects Gilabert's suggestion that we understand the indivisibility of two rights as two rights being highly useful to each other (interdependence) rather than as mutual indispensability. In the final section, I offer two new worries about the system-wide indivisibility of human rights.

Contingent Valuation Studies And Health Policy, Matthew D. Adler

All Faculty Scholarship

This short comment argues that both cost-benefit analysis (CBA) and cost-effectiveness analysis (CEA) should be seen as imperfect tools for evaluating health policy. This is true, not only for extra-welfarists, but even for welfarists, since both CBA and CEA can deviate from the use of social welfare functions (SWF). A simple model is provided to illustrate the divergence between CBA, CEA, and the SWF approach. With this insight in mind, the comment considers the appropriate role of contingent-valuation studies. For full text, please see: http://www.law.upenn.edu/cf/faculty/madler/workingpapers/578A59B6d01.pdf.

Do Liquidated Damages Encourage Breach? A Psychological Experiment, Tess Wilkinson-Ryan

All Faculty Scholarship

This Article offers experimental evidence that parties are more willing to exploit efficient-breach opportunities when the contract in question includes a liquidated-damages clause. Economists claim that the theory of efficient breach allows us to predict when parties will choose to breach a contract if the legal remedy for breach is expectation damages. However, the economic assumption of rational wealth-maximizing actors fails to capture important, shared, nonmonetary values and incentives that shape behavior in predictable ways. When interpersonal obligations are informal or underspecified, people act in accordance with shared community norms, like the moral norm of keeping promises. However, when sanctions …

Human Rights Without Foundations, Joseph Raz

Faculty Scholarship

This is a good time for human rights. Not that they are respected more than in the past. The flagrant resort to kidnapping, arbitrary arrests, and torture by the United States of America (USA), and the unprecedented restriction of individual freedom in the USA, and in Great Britain (GB), cast doubt about that. It is a good time for human rights in that claims about such rights are used more widely in the conduct of world affairs than before. There are declarations of and treaties about human rights, international courts and tribunals with jurisdiction over various human right violations. They …

Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Paul H. Robinson, Michael T, Cahill, Daniel M. Bartels

All Faculty Scholarship

Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any …

The Hidden Function Of Takings Compensation, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

To date, scholars have justified the constitutional mandate to pay compensation for takings of property on the intuitively appealing grounds that fairness demands recompensing aggrieved owners; on the basis of a belief that government that fails to pay will suffer from “fiscal illusion” and take excessively; or due to the need to neutralize politically powerful property owners who would otherwise foil socially beneficial projects. This Essay offers a new explanation of the role of takings compensation in ensuring good government. Inspired by public choice theory, we argue that takings compensation is intended to reduce the incentives for corruption by limiting …

Mental Disorders And The "System Of Judgmental Responsibility", Anita L. Allen

All Faculty Scholarship

No abstract provided.

Being In The World, Joseph Raz

Faculty Scholarship

Actions for which we are responsible constitute our engagement with the world as rational agents. What is the relationship between such actions and our capacities for rational agency? I take this to be a question about responsibility in a particular use of that term, which I shall call ‘responsibility’. We are not responsible for all our intentional actions (actions under hypnosis, for example), but we can nevertheless be responsible for actions we do not adequately control, for negligent actions, and for non‐intentional omissions. Appreciating this helps show that familiar principles of responsibility are false: those which delimit responsibility to intentional …

Susan Wolf On The Meaning Of Life: A Review, Joseph Raz

Faculty Scholarship

The book comprises the two Tanner Lectures given by Susan Wolf at Princeton in 2007; helpful comments by John Koethe, Robert M. Adams, Nomy Arpaly, and Jonathan Haidt;Wolf ’s replies; and a brief introduction by Stephen Macedo. Wolf writes elegantly and thoughtfully, and the book, which seems to preserve in length and style its origins as two lectures, is full of sensible, suggestive ideas. The Tanner Lectures are meant to reach a nonspecialist audience, and some specialist readers may wish to have more on less, a desire likely to affect especially those who, like myself, share Wolf ’s basic approach …

Citizenship, In The Immigration Context, Matthew J. Lister

All Faculty Scholarship

Many international law scholars have begun to argue that the modern world is experiencing a “decline of citizenship,” and that citizenship is no longer an important normative category. On the contrary, this paper argues that citizenship remains an important category and, consequently, one that implicates considerations of justice. I articulate and defend a “civic” notion of citizenship, one based explicitly on political values rather than shared demographic features like nationality, race, or culture. I use this premise to argue that a just citizenship policy requires some form of both the jus soli (citizenship based on location of birth) and the …

Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton

All Faculty Scholarship

This essay critically evaluates Richard Thaler and Cass Sunstein’s proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that undergird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients’ tort law rights. …

On The Guise Of The Good, Joseph Raz

Faculty Scholarship

The chapter examines the main argument for, and the presuppositions of the claim that intentional actions are actions taken in, and because of, a belief that there is some good in them. An analysis of intentional actions, and of action for a (normative) reason, followed by a consideration of a number of objections to the thesis of the Guise of the Good force various revisions and refinements of the thesis yielding a defensible version of it. It is argued that the revised thesis is supported by the same argument that inspired the Guise of the Good from the beginning and …

A Planet By Any Other Name . . ., Kimberly Kessler Ferzan

All Faculty Scholarship

Scientific discoveries about Pluto and the rest of the universe led scientists to question Pluto’s status and ultimately to strip Pluto of its standing among planets. Neil deGrasse Tyson’s The Pluto Files masterfully weaves together the empirical, conceptual, and cultural questions surrounding Pluto’s demotion. The problem, for scientists and spectators alike, was this: there was no scientific definition of planet. This review systematizes the Pluto puzzle presented in the book and reveals its relevance for law. The questions presented by The Pluto Files – how man relates to the world, how man understands its conceptual categories, and how man …