Law Commons^™

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

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Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories of …

Christianity And The (Modest) Rule Of Law, David A. Skeel Jr., William J. Stuntz

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Conservative Christians are often accused, justifiably, of trying to impose their moral views on the rest of the population: of trying to equate God's law with man's law. In this essay, we try to answer the question whether that equation is consistent with Christianity. It isn't. Christian doctrines of creation and the fall imply the basic protections associated with the rule of law. But the moral law as defined in the Sermon on the Mount is flatly inconsistent with those protections. The most plausible inference to draw from those two conclusions is that the moral law - God's law - …

The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter

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No abstract provided.

Hobbes And The Internal Point Of View, Claire Oakes Finkelstein

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No abstract provided.

Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman

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For generations, criminal law theorists, moral and political philosophers, and economists have struggled to resolve one of the law's great puzzles: whether, why, and under what circumstances the law should criminalize the conditional threat to do what is lawful. This is the so-called paradox of blackmail. Although libertarians have insisted that blackmail should be lawful, most commentators agree that at least some forms of blackmail are properly criminalized, disagreeing over the proper rationale. In his provocative article, Meta-blackmail, Russell Christopher presents a wholly novel argument in support of the libertarian conclusion. Christopher's argument relies upon the imaginary device of a …

Forget The Fundamentals: Fixing Substantive Due Process, Kermit Roosevelt Iii

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No abstract provided.

Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler

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The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist …

Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry

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No abstract provided.

Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick

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The federal preemption of state law has emerged as a prominent field of study for legal scholars and political scientists. This rise to prominence of a technical and often dull field of jurisprudence is due to a number of developments-increasingly frequent federal statutory preemptions; the states' unprecedented aggressiveness in regulating business transactions, the expansion of corporate liability under state common law and the increased resort of corporate defendants to federal preemption defenses; and, not least, the Rehnquist Court's discovery of federalism and states' rights.

Unfortunately, the preemption debate has been marred by misperceptions and a lack of reliable data. Extravagant …

Government Regulation Of Irrationality: Moral And Cognitive Hazards, Jonathan Klick, Gregory Mitchell

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Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite the dynamic effects of paternalistic policies. This Article considers how paternalistic policies fare under a dynamic account of decision making that incorporates learning and motivation effects. This approach brings out two important limitations on the efficiency effects of paternalistic regulations. First, if preferences and biases are endogenous to institutional forces, paternalistic government regulations may perpetuate and even magnify a given bias and cause other adverse psychological effects. Second, for some biases, it will be more efficient to invest resources in debiasing than …

Moralizing In Public, Anita L. Allen

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No abstract provided.

Alternative Career Resolution Ii: Changing The Tenure Of Supreme Court Justices, Stephen B. Burbank

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No abstract provided.

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

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Contemporary positivism has taken a communitarian turn. Hart, in the Postscript to the Concept of Law, clarifies that the rule of recognition is a special sort of social practice: a convention. It is not clear whether Hart, here, means “convention” in the strict sense elaborated by David Lewis, or in some weaker sense. A number of contemporary positivists, including Jules Coleman (at one point), Andrei Marmor, and Gerald Postema, have argued that the rule of recognition is something like a Lewis-convention. Others have suggested that the rule of recognition is conventional in a weaker sense -- specifically, by figuring in …

Aspiration And Underenforcement, Kermit Roosevelt Iii

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No abstract provided.