Law Commons^™

A New Way Forward: A Response To Judge Weinstein, Elizabeth Chamblee Burch

Scholarly Works

This short essay responds to Judge Jack Weinstein's essay, Preliminary Reflections on Administration of Complex Litigations, 2009 Cardozo De Novo 1. In so doing, it also provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate …

The Irrelevance Of Contemporary Academic Philosophy For Law: Recovering The Rhetorical Tradition, Francis J. Mootz Iii

Scholarly Works

This short paper appears in a volume of original essays, On Philosophy in American Law (Francis J. Mootz III ed., Cambridge Univ. Press 2009). I argue that the undeniable rift between philosophy and law is more than a simple dichotomy of theory and practice. Instead, the sharp distinction between philosophy and law occurred when both disciplines built insular guilds that employed distinctive vocabularies to distinguish themselves from rhetoric, and it is by returning to their roots in rhetoric that philosophy and law might find their common ground in the elucidation of rhetorical knowledge.

Playing God: An Essay On Law, Philosophy, And American Capital Punishment, Samuel J. Levine

Scholarly Works

This article looks at the capital sentencer's decision: Whether a death-eligible defendant will in fact receive the death sentence. Based in part on an examination of Jewish law and philosophy, Professor Levine identifies three particular areas in which it can be said that the Supreme Court requires the capital sentencer to "play God." First, capital sentencers are asked to ascertain the degree of a defendant's culpability by looking at factors that affect free will and victim impact evidence, implicating moral luck. Capital sentencers are also required to determine a person's total moral worth by considering character evidence. Finally, the Supreme …

Not Interaction But Melding - The "Russian Dressing" Theory Of Emotions: An Explanation Of The Phenomenology Of Emotions And Rationality With Suggested Related Maxims For Judges And Other Legal Decision Makers, Peter Brandon Bayer

Scholarly Works

Even after centuries of contrary philosophy and psychology, many commentators, jurisprudes, and law makers insist that emotions have no legitimate place in most legal decision making. This recalcitrance, of course, is misplaced in light of the powerful body of theory explaining that without emotions, decisions, including matters of law and policy, simply cannot be made. Judges, along with all societal actors, must disabuse themselves of the fallacious belief that emotions obstruct or obscure reason in all endeavors, particularly morality, law, and justice.

The project of truly apprehending emotions, however, requires more than appreciating that they play a crucial role in …

Comparative Law: Its Purposes And Possibilities, Christopher L. Blakesley

Scholarly Works

Comparative law is much more than “matching laws.” Professor Grossfield’s short, lively book will certainly awaken its German reader to the value, indeed necessity, of comparative law and comparative insights in his or her own practice or scholarly work. This, he aims at the skeptic who may think of comparative law or foreign legal systems as arcane and useless fluff, too luxurious for the hard working “practical-minded” practitioner. Professor Grossfield throws the cold water of realization into this skeptic’s face. The message being that considering comparative approaches and theory about similar problems may indeed be as practical as one can …