Law Commons^™

Second-Best Criminal Case, William Ortman

Law Faculty Research Publications

No abstract provided.

When Should The First Amendment Protect Judges From Their Unethical Speech?, Lynne H. Rambo

Faculty Scholarship

Judges harm the judicial institution when they engage in inflammatory or overtly political extrajudicial speech. The judiciary can be effective only when it has the trust of the citizenry, and judicial statements of that sort render it impossible for citizens to see judges as neutral and contemplative arbiters. This lack of confidence would seem especially dangerous in times like these, when the citizenry is as polarized as it has ever been.

Ethical codes across the country (based on the Model Code of Judicial Conduct) prohibit judges from making these partisan, prejudicial or otherwise improper remarks. Any discipline can be undone, …

A Rhetorician’S Practical Wisdom, Linda L. Berger

Scholarly Works

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.

For Jack, the essence of a …

Ethics And International Law: Integrating The Global Justice Project(S), Steven R. Ratner

Articles

Academic discourse on global justice is at an all-time high. Within ethics and international law, scholars are undertaking new inquiries into age-old questions of building a just world order. Ethics – political and moral philosophy – poses fundamental questions about responsibilities at the global level and produces a tightly reasoned set of frameworks regarding world order. International law, with its focus on legal norms and institutional arrangements, provides a path, as well as illuminates the obstacles, to implementing theories of the right or of the good. Yet despite the complementarity of these two projects, neither is drawing what it should …

Judicial Decision Making In A World Of Natural Law And Natural Rights, George C. Christie

Faculty Scholarship

This article was my contribution to a symposium celebrating the achievements of John Finnis held at the Villanova University School of Law. Finnis’ greatest work is his Natural Law and Natural Rights. I agree with Finnis’ rejection of an approach to natural law which focuses on the notion of natural rights. Finnis’ approach instead focuses on a natural law that is based on the idea that there are certain basic human goods such as the search for knowledge, the maintenance of life, the sharing of fellowship with other human beings, the capacity to enjoy aesthetic experiences, and the exercise …

How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources …

Where The Home In The Valley Meets The Damp Dirty Prison: A Human Rights Perspective On Therapeutic Jurisprudence And The Role Of Forensic Psychologists In Correctional Settings, Astrid Birgden, Michael L. Perlin

Articles & Chapters

The roles of forensic psychologists in coerced environments such as corrections include that of treatment provider (for the offender) and that of organizational consultant (for the community). This dual role raises ethical issues between offender rights and community rights; an imbalance results in the violation of human rights. A timely reminder of a slippery ethical slope that can arise is the failure of the American Psychological Association to manage this balance regarding interrogation and torture of detainees under the Bush administration. To establish a “bright-line position” regarding ethical practice, forensic psychologists need to be cognizant of international human rights law. …

The Virtuous Spy: Privacy As An Ethical Limit, Anita L. Allen

All Faculty Scholarship

Is there any reason not to spy on other people as necessary to get the facts straight, especially if you can put the facts you uncover to good use? To “spy” is secretly to monitor or investigate another's beliefs, intentions, actions, omissions, or capacities, especially as revealed in otherwise concealed or confidential conduct, communications and documents. By definition, spying involves secret, covert activity, though not necessarily lies, fraud or dishonesty. Nor does spying necessarily involve the use of special equipment, such as a tape recorder or high-powered binoculars. Use of a third party agent, such as a “private eye” or …

Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne

Faculty Scholarship

This article explores the consequences of a Constitution not entirely aligned with moral law. These remarks encourage all legal minds to acknowledge such gaps when they are found, although there are a variety of ways in which such acknowledgment may take shape.

A Chilling Of Discourse, David R. Barnhizer

Law Faculty Articles and Essays

I argue that the key consequence of the collectives of multicultural, postmodernists, radical feminists, critical race activists, sexuality advocates and others working for radical change is not only the politicization of knowledge in what is after all a realm of politics we call law, but the incoherence of knowledge and the loss of the quality and integrity of our pursuit of knowledge through scholarship. One result is that much of the scholarship and teaching found in the humane and political or noncumulative disciplines such as law are forms of self-interested propaganda in which honesty is muted or excluded and truth-seeking …

Moralizing In Public, Anita L. Allen

All Faculty Scholarship

No abstract provided.

How To Be A Moorean, Donald H. Regan

Articles

G. E. Moore’s position in the moral philosophy canon is paradoxical. On the one hand, he is widely regarded as the most influential moral philosopher of the twentieth century. On the other hand, his most characteristic doctrines are now more often ridiculed than defended or even discussed seriously. I shall discuss briefly a number of Moorean topics—the nonnaturalness of “good,” the open question argument, the relation of the right and the good, whether fundamental value is intrinsic, and the role of beauty—hoping to explain how a philosophically informed person could actually be a Moorean even today.1

Habermas@Discourse.Net: Toward A Critical Theory Of Cyberspace, A. Michael Froomkin

Articles

No abstract provided.

Between Law And Virtue, Joseph P. Tomain, Barbara Watts

Faculty Articles and Other Publications

Legal ethics, professional responsibility, and professionalism are timely topics as lawyers continually reevaluate the standards of their profession, particularly in light of the challenges of multidisciplinary and multijurisdictional practice, as well as the embarrassment facing lawyers involved in and surrounding the Enron collapse. In this article, our goal is to discuss how to think and talk about ethics and professionalism. By way of preview, we need to understand that ethics and professionalism use different vocabularies and, consequently, talk past each other to some extent. Our hope is that understanding the existence of these two vocabularies helps reduce the misunderstanding. Both …

Two Concepts Of Immortality: Reframing Public Debate On Stem-Cell Research, Frank Pasquale

Faculty Scholarship

Regenerative medicine seeks not only to cure disease, but also to arrest the aging process itself. So far, public attention to the new health care has focused on two of its methods: embryonic stem-cell research and therapeutic cloning. Since both processes manipulate embryos, they alarm those who believe life begins at conception. Such religious objections have dominated headlines on the topic, and were central to President George W. Bush's decision to restrict stem-cell research.

Although they are now politically potent, the present religious objections to regenerative medicine will soon become irrelevant. Scientists are fast developing new ways of culturing the …

The Value Of Rational Nature, Donald H. Regan

Articles

Kant tells us in the Groundwork of the Metaphysics of Morals that rational nature is an end in itself; that it is the only thing which is unconditionally valuable; and that it is the ultimate condition of all value.1 A striking trend in recent Kant scholarship is to regard these value claims, rather than the formalism of universalizability, as the ultimate foundation of Kant’s theory.2 But does rational nature as Kant conceives it deserve such veneration? Can it really carry the world of value on its shoulders? I think not. As will become clear, I do not doubt the value …

Two Observations On Holocaust Claims, William W. Bratton

All Faculty Scholarship

No abstract provided.

Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …

Metaphors Matter: How Images Of Battle, Sports And Sex Shape The Adversary System, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

Metaphors are not pretty figures of speech; they affect the way people within cultures perceive reality. It is therefore significant that the metaphors most commonly used for the adversary system center on war and sports. This tends to over-emphasize the competitive aspects of litigation and disguise opportunities for more cooperative behavior. This article collects and analyzes those metaphors, and discusses the reasons for their powerful hold on legal culture. It also considers some of the negative effects of the metaphorical system and speculates about whether we could find and nurture alternative metaphors.

On A New Theory Of Justice, William Ewald

All Faculty Scholarship

No abstract provided.

A Meditation On The Theoretics Of Practice, Robert Dinerstein

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Living Without Rights-- In Manners, Religion, And Law, Richard Stith

Law Faculty Publications

No abstract provided.

Authority And Value: Reflections On Raz's Morality Of Freedom, Donald H. Regan

Articles

Joseph Raz's The Morality of Freedom1 is full of subtle, original, and thought provoking arguments. It also manifests abundantly Raz's philosophical good sense and sensitivity to the complexities of the moral life. These are reasons enough to class it with the handful of genuinely important books whose appearance in the last two decades has constituted a renaissance in political philosophy. But in my opinion, Raz has another, and even stronger claim on our attention: He comes closer to the truth about political morality than anyone has for nearly a century. (Possibly much longer, but we need not attempt to decide …

Law's Halo, Donald H. Regan

Articles

Like many people these days, I believe there is no general moral obligation to obey the law. I shall explain why there is no such moral obligation - and I shall clarify what I mean when I say there is no moral obligation to obey the law - as we proceed. But also like many people, I am unhappy with a position that would say there was no moral obligation to obey the law and then say no more about the law's moral significance. In our thinking about law in a reasonably just society, we have a strong inclination to …

On Preferences And Promises: A Response To Harsanyi, Donald H. Regan

Articles

John C. Harsanyi sketches an entire normative and metaethical theory in under twenty pages. Combining breadth and brevity, his essay is useful and interesting. It reveals the interrelations between Harsanyi's positions on various issues as no longer work or series of articles could do. But by virtue of its programmatic nature, the essay creates a dilemma for a commentator, at least for one who finds many things to disagree with. If I responded to Harsanyi in the same sweeping terms in which he argues, we would end up with little more than opposing assertions. At the other extreme, I could …