Law Commons^™

Anti-Modalities, David E. Pozen, Adam M. Samaha

Michigan Law Review

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters—the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities” of …

Moral Diversity And Efficient Breach, Matthew A. Seligman

Michigan Law Review

Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them …

Private Rights And Private Wrongs, Andrew S. Gold

Michigan Law Review

Review of Private Wrongs by Arthur Ripstein.

On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas

Michigan Law Review

The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources-recent laws from state legislatures and recent advances in moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral …

Planning For Legality, Jeremy Waldron

Michigan Law Review

What is law like? What can we compare it with in order to illuminate its character and suggest answers to some of the perennial questions of jurisprudence? Natural lawyers compare laws to moral propositions. A human law is an attempt by someone who has responsibility for a human community to replicate, publicize, and enforce a proposition of objective morality such as "Killing is wrong." Law is like moral reasoning, say the natural lawyers, and laws should be regarded as principles of right reason (principles that reason dictates as answers to the moral questions that need to be addressed in human …

Why Breach Of Contract May Not Be Immoral Given The Incompleteness Of Contracts, Steven Shavell

Michigan Law Review

There is a widely held view that breach of contract is immoral. I suggest here that breach may often be seen as moral, once one appreciates that contracts are incompletely detailed agreements and that breach may be committed in problematic contingencies that were not explicitly addressed by the governing contracts. In other words, it is a mistake generally to treat a breach as a violation of a promise that was intended to cover the particular contingency that eventuated.

Could Breach Of Contract Be Immoral?, Seana Shiffrin

Michigan Law Review

Some scholars defend the contract law's ban on punitive damage awards on the grounds that breach of contract, in itself, is not morally wrong. In this Article, I offer two responses. First, I refute one prevalent argument of Steven Shavell's in support of this view. Shavell argues that contractual breach is not immoral in those cases in which the legal regime would offer expectation damages because the contracting parties would not have agreed to require performance had they explicitly deliberated about the circumstances occasioning the breach. I criticize his argument for failing to justify this hypothetical-contract approach and, in any …

On Dworkin And Borkin, Tom Lininger

Michigan Law Review

This Essay will use Dworkin's and Davis's scholarship as a jumping-off point for a discussion of the Supreme Court nomination process. I argue that while Dworkin's and Davis's books, when read together, expose a significant problem with the current nomination process, a possible solution to this predicament may lie in a change to the judicial code of ethics and the procedural rules for confirmation of judges. My analysis will proceed in four steps. Part I will address Dworkin's arguments. Part II will evaluate the analysis and evidence in Davis's book. Part III will consider an additional variable to which neither …

Science, Humanity, And Atrocity: A Lawyerly Examination, Steven D. Smith

Michigan Law Review

Joseph Vining's reflection on (as the subtitle indicates) the claims of science and humanity begins with a terse but disturbing recitation of these and similar scientific experiments conducted on human beings during the twentieth century in Manchuria, Nazi Germany, and Pol Pot's Cambodia. The incidents are conveyed through quotations, sometimes of the coldly clinical prose that the researchers themselves chose as most suitable for their purposes. These quotations are juxtaposed against others from an array of distinguished scientists and philosophers explaining the naturalistic cosmology that, in the view of these thinkers, modern science has given us: it is a stark, …

Was The Frog Prince Sexually Molested?: A Review Of Peter Westen's The Logic Of Consent, Heidi M. Hurd

Michigan Law Review

Peter Westen's The Logic of Consent is nothing short of a tour de force. In the tradition of the very best and most significant contributions to legal theory, Professor Westen demonstrates that we do not know what we think we know about a capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography. While we all employ claims of consent in everyday moral gossip to absolve some and withhold sympathy from others, and while courts of law across the nation commonly …

Unity And Pluralism In Contract Law, Nathan Oman

Michigan Law Review

It is a cliché of contemporary legal scholarship that, in the last few decades, the study of law has witnessed a vast proliferation of competing theoretical approaches. The old faith in the careful honing of doctrinal concepts and the essential usefulness of legal analysis has given way to a cacophony of competing theoretical sects. Economists, moral philosophers, sociologists, historians, and others have stepped forward to offer the insights of this or that discipline as a new and superior path to legal enlightenment. Perhaps nowhere has this cliché been truer than in the realm of contracts scholarship, where, for a generation, …

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Michigan Law Review

Tens - perhaps hundreds - of thousands of trees could have been spared over the last forty-five years had opponents of physician-assisted death only been content to let Yale Kamisar be their exclusive spokesperson. Their movement would have lost no significant substance or persuasive force, for Kamisar's 1958 article - Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation - presaged the shape and content of the subsequent forty-five year debate over legalizing physician-assisted death ("PAD" ). Kamisar's article preceded by years the development of a whole jurisprudence relating to the withholding/withdrawing of life-sustaining medical treatment ("LSMT") and the administration of pain-relief …

The Unruliness Of Rules, Peter A. Alces

Michigan Law Review

Analytical jurisprudence depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory - indeed, before we can even know what those questions are - we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence (or lack thereof) between inclusive and exclusive positivism. That …

Pragmatism Regained, Christopher Kutz

Michigan Law Review

Jules Coleman's The Practice of Principle serves as a focal point for current, newly intensified debates in legal theory, and provides some of the deepest, most sustained reflections on methodology that legal theory has seen. Coleman is one of the leading legal philosophers in the Anglo-American world, and his writings on tort theory, contract theory, the normative foundations of law and economics, social choice theory, and analytical jurisprudence have been the point of departure for much of the most interesting activity in the field for the last three decades. Indeed, the origin of this book lies in Oxford University's invitation …

The Foundations Of Liberty, Lawrence B. Solum

Michigan Law Review

Randy Barnett's The Structure of Liberty is an ambitious book. The task that Barnett sets himself is to offer an original and persuasive argument for a libertarian political theory, a theory that challenges the legitimacy of the central institutions of the modern regulatory-welfare state. The Structure of Liberty is that rare creature, a book that delivers on most of the promises it makes. Already the book is on its way to becoming a contemporary classic, the successor in interest to Robert Nozick's Anarchy, State and Utopia as a source of ideas and arguments for the revitalization of an important intellectual …

Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin

Michigan Law Review

Despite the continued belief held by most Americans that certain characteristics should not form the basis for adverse decisions about individuals in employment, housing, public accommodations, and the provision of a wide range of governmental and private services and opportunities, antidiscrimination laws have increasingly come under attack on the ground that they provide members of the group against whom discrimination is forbidden with "special rights." The "special rights" objection has been voiced most strongly, but not exclusively, against laws that seek to prohibit discrimination on the basis of sexual orientation. This line of attack has not always been effective, but …

Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler

Michigan Law Review

The Bill of Rights, by means of open-ended terms such as "freedom of speech," "equal protection," or "due process," refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers' beliefs about that content; the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers' views. Bracketing this disagreement, however, …

Kahan On Mistakes, Daniel Yeager

Michigan Law Review

In Ignorance of Law Is an Excuse - but Only for the Virtuous, Professor Dan Kahan reconciles what I had thought was an irreconcilable body of law. To be sure, imposing order on whether and when mistakes of law should pass as responsibility-evading accounts of untoward actions is far from light work. Yet Kahan somehow pulls it off in just twenty-seven pages. In addition to acknowledging the importance of Professor Kahan's essay, I write here to point out if not correct what might have been two oversights in his view of the meaning and operation of mistakes. First, Kahan never …

Reply: Is Ignorance Of Fact An Excuse Only For The Virtuous?, Dan M. Kahan

Michigan Law Review

Professor Yeager's thoughtful response to my essay has convinced me that there is indeed a connection worth noting between the mistake of law doctrine and the mistake of fact doctrine. Yeager suggests that my position on mistake of law reduces to the view that someone who would be guilty of a "lesser wrong" were things as he perceived them to be may be punished for the "greater wrong" that he actually commits - a conception of mistake of fact that has provoked fierce denunciation from commentators. But I would in fact put things slightly differently: under both doctrines courts excuse …

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 …

Response: Between Economics And Sociology: The New Path Of Deterrence, Dan M. Kahan

Michigan Law Review

The explosive collision of economics and sociology has long illuminated the landscape of deterrence theory. It is a debate as hopeless as it is spectacular. Economics is practical but thin. Starting from the simple premise that individuals rationally maximize their utility, economics generates a robust schedule of prescriptions - from the appropriate size of criminal penalties,1 to the optimal form of criminal punishments, to the most efficient mix of private and public investments in deterrence. Yet it is the very economy of economics that ultimately subverts it: its account of human motivations is too simplistic to be believable, and it …

A More Democratic Liberalism, Joshua Cohen

Michigan Law Review

A Review of Political Liberalism

A Morality Fit For Humans, Joseph Raz

Michigan Law Review

A Review of Human Morality by Samuel Scheffler

Whose Loyalties?, Christina Whitman

Michigan Law Review

A Review of Loyalty: An Essay on the Morality of Relationships by George P. Fletcher

Moral Responsibility In The Age Of Bureaucracy, David Luban, Alan Strudler, David Wasserman

Michigan Law Review

No twentieth-century writer has thought so deeply, or so yearningly, about natural law as Franz Kafka. Kafka's is a world in which we seek desperately to know the natural law that is sovereign in human affairs but find that knowledge of the law is withheld from us. For this reason, we lead our lives in a state of, if not original sin, then original guilt - guilt for violating the law, or perhaps guilt for not knowing the law, despite the fact that we wish to know it.

The Trial is Kafka's greatest elaboration of this theme. Joseph K. is …

Moral Reality Revisited, Michael S. Moore

Michigan Law Review

Both the moral realist and the relational theses need clarification and motivation as much as they need defense. Because I have recently focused on the relational thesis, in this article I shall focus on the moral realist thesis. I shall ask three questions about the thesis. First, what does the thesis assert? This is a matter of clarifying what one means when one either asserts or denies that moral values are objective. Second, why should we care whether the moral realist thesis is true or false? I shall examine this question both in terms of the impact the truth or …

Justifiably Punishing The Justified, Heidi M. Hurd

Michigan Law Review

Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex …

Some Natural Confusions About Natural Law, Philip Soper

Michigan Law Review

To describe this renewed interest in natural law as a resurgence does imply, no doubt, that the ideas associated with the concept are too vital to be put permanently to rest; but resurgence also implies that natural law, for whatever reason, has been assigned the role of challenger to the reigning orthodoxy, rather than that of defending champ. By and large, this inference about the role assigned to natural law by the general public is, I think, correct. Natural law seems to evoke a degree of skepticism in our society that forces any theory that goes by the name to …

Conceptions Of Value In Legal Thought, Richard H. Pildes

Michigan Law Review

A Review of Love's Knowledge by Martha C. Nussbaum

The Substance Of Equality, Jeremy Waldron

Michigan Law Review

A Review of Speaking of Equality: An Analysis of the Rhetorical Force of "Equality" in Moral and Legal Discourse by Peter Westen