Law Commons^™

A Peculiar People: The Mystical And Pragmatic Appeal Of Mormonism, Kenneth Anderson

Book Reviews

This 1999 Los Angeles Times Book Review essay examines Richard and Joan Ostling's account of contemporary Mormonism in the United States. Richard Ostling, a reporter for Time Magazine, obtained extensive access to Mormon Church officials in the course of researching the book, and it gives the fullest account available currently of Mormon life in America. The review finds the book to be very evenhanded and objective, and perhaps the best introduction to the Mormon faith extant today, whether by Mormon church members or non-members.

Lawyering In Law's Republic: William Simon's The Practice Of Justice: A Theory Of Lawyers' Ethics, Rob Atkinson

Scholarly Publications

No abstract provided.

Family Law In The Age Of Distrust, Carl E. Scheider

Articles

I have been invited to examine the relationship between American culture and American family law at the end of the century. No doubt I was foolish to accept the invitation, since the topic can hardly be sketched, much less discussed, within the compass of even a lengthy article. On the other hand, that happy fault forces me to accept the luxury of writing a speculative essay and of eschewing the footnotes that are the misery (and majesty) of the academic lawyer. But even thus set free I am still enchained. Family law is shaped by more cultural forces than I …

Positivism, Emergent And Triumphant, Vincent A. Wellman

Michigan Law Review

Positivism is one of those words that triggers passionate and often contradictory responses. For some, positivism is a pejorative. Lon Fuller, perhaps more than anyone, charged that positivism was confused about the nature of law, blind to law's inherent morality, and morally corrupting to boot. He even suggested, in different ways, that positivism helped promote the rise of fascism in Europe. Others, in contrast, have treated positivism as a modest and undeniable truth about law. Law, they argued, is morally fallible, and accordingly, the existence and validity of law is a matter of social fact rather than moral necessity. H.L.A. …

Subversive Thoughts On Freedom And The Common Good, Larry Alexander, Maimon Schwarzschild

Michigan Law Review

Richard Epstein is a rare and forceful voice against the conventional academic wisdom of our time. Legal scholarship of the past few decades overwhelmingly supports more government regulation and more power for the courts, partly in order to control businesses for environmental and other reasons, but more broadly in hopes of achieving egalitarian outcomes along the famous lines of race, gender, and class. Epstein is deeply skeptical that any of this is the shining path to a better world. Epstein's moral criterion for evaluating social policy is to look at how fully it allows individual human beings to satisfy their …

Slouching Towards Equality, Christopher J. Peters

All Faculty Scholarship

Drawing on his work in two previous articles, Christopher Peters contends that uncertainty about substantive moral norms cannot justify a presumption of equal treatment. Arguments for equal treatment in the face of uncertainty are types of consequentialist claims; they are not claims of what Peters calls prescriptive equality, that is, for treating likes alike merely because they are alike. Peters contends that the consequentialist case for equal treatment as a response to uncertainty fails in two respects. First, it fails to demonstrate that equal treatment is likely to be a more satisfactory response to moral uncertainty than unequal treatment. Second, …

The Liberal Future Of Relational Feminism: Robin West's Caring For Justice, Linda C. Mcclain

Faculty Scholarship

Robin West is one of the most prolific1 and creative members of the legal academy. Her distinctive voice, as expressed in several books and numerous scholarly articles, informs and shapes debates within such diverse areas as constitutional theory (West 1990b; West 1994), feminist jurisprudence (West 1987; West 1988), and law and literature (West 1993). Indeed, some of her early articles concerning feminist jurisprudence (West 1987, West 1988) are now "classics" in a relatively new field of inquiry and appear in virtually every anthology or textbook in the field (Bartlett and Kennedy 1991, 201; Becker, Bowman, and Torrey 1994, 90; Fineman …

Religion And The Public Defender, Sadiq Reza

Faculty Scholarship

This Essay will argue that the public defender, or any other attorney appointed by the court to defend adults or juveniles charged with criminal offenses, should not undertake, or fail to undertake, any action to the legal detriment of a client on the basis of a conflict the attorney perceives between religious and professional imperatives, except in the rare case of imminent death or serious bodily harm to another. This argument rests on the following four premises: (1) the public defender occupies a unique position in our legal system, and options that may be available to lawyers who serve private …

In Defense Of The Good Samaritan, Hanoch Dagan

Michigan Law Review

In the year 1880, in Dalles City, Oregon, a large and valuable load of lumber fell into the Columbia River and was about to be carried away by the river's waters. Since Savage, the owner of this lumber, was absent from the scene, Glenn - who, at that time, was doing construction work for Savage - "furnished help and did service" in saving the lumber "from being washed away and lost." Seven years later, the Supreme Court of Oregon rejected Glenn's claim that Savage owed him "the reasonable value" of his services as well as of the services of the …

Aborting The Pros And Cons Of Abortion: No Escaping The Killing Fields, Ibpp Editor

International Bulletin of Political Psychology

This article critiques rationales of both opponents and supporters of intentionally aborting a human fetus. The critique has implications for arriving at legal, ethical, and moral judgments.

International Law And The Maritime Carriage Of Radioactive Materials: Prospects For The Non-Anthropocentric Greening Of International Law, A. Suzette V. Suarez

LLM Theses

A review of the legal regime governing the shipments of radioactive materials reveals an array of preventive and emergency measures as well as liability and compensation measures. The legal regime, however, does not provide any voice to all potentially affected entities, particularly developing Coastal States and the marine environment. The legal regime must be transformed in order to take the above interests into consideration. Any reform in the legal system must start with an evaluation of the ethics and philosophy underlying the system. Understanding the ethical and philosophical basis of the legal regime contributes to the formulation of recommendations for …

When Federal Law Is Also State Law: The Implications For State Constitutional Law Methodology Of Footnote 7 In Commonwealth V. Matos, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Imperatives, Normativity, And The Law, Gregory Silverman

Faculty Articles

In this article Professor Silverman sets out to resolve the problem of legal normativity. Professor Silverman argues that legal scholars have been prevented from transcending the limited conception of law engendered by a key dogma of nineteenth century jurisprudence: the dogma that laws are a species of commands, orders, or imperatives. As a result, even as we enter the twenty-first century, legal scholars have yet to articulate a legal architectonic that properly situates the normative commitments of a society within a post-modern legal system. An adequate theory of law must offer an account of the normativity of law: an account …

Philosophical Considerations And The Use Of Narrative In Law, George A. Martinez

Faculty Journal Articles and Book Chapters

The use of narrative in law raises a number of philosophical/jurisprudential issues. Narrative has been used primarily by critical theorists, including critical race theorists, Latino legal theorists, Asian-American legal theorists, feminist legal theorists, and gay/lesbian legal theorists. They offer narrative as a way to introduce a perspective that is not represented in mainstream legal discourse.

Drawing on philosophy, the author explains the importance of narrative for outsiders and offers responses to some important philosophical or jurisprudential objections to the use of narrative in law. In particular, the author responds to the following claims: (1) the use of narrative is an …

What The Twins Saw, Paul F. Campos

Publications

No abstract provided.

Not So Hard (And Not So Special), After All: Comments On Zimring's "The Hardest Of The Hard Cases", Stephen J. Morse

All Faculty Scholarship

No abstract provided.

Farewell To An Idea? Ideology In Legal Theory, David Charny

Michigan Law Review

In 1956, Morocco inaugurated a constitutional democratic polity on the Western model. Elections were to be held, and political parties formed, with voters to be registered by party. The Berbers, however, did not join the parties as individual voters. Each Berber clan joined their chosen party as a unit. To consecrate (or, perhaps, to accomplish) the clan's choice, a bullock was sacrificed. These sacrificial rites offer a useful parable about the relationship between law and culture. The social order imposed by law depends crucially on the "culture" of the participants in the system - their habits, dispositions, views of the …

In Defense Of The Incorporation Strategy, Jody S. Kraus, Steven D. Walt

Faculty Scholarship

Contract law must provide rules for interpreting the meaning of express terms and default rules for filling contractual gaps. Article 2 of the Uniform Commercial Code provides the same response to both demands: It incorporates the norms of commercial practice. This "incorporation strategy" has recently come under attack. Although the incorporation strategy for gap-filling seems to have survived criticism, the incorporation strategy for interpretation remains heavily criticized. Critics charge that the expected rate of interpretive error under an incorporationist interpretive regime is so excessive that almost any plain meaning regime would be preferable.

The attack on the incorporation strategy for …

On Hate And Equality, Alon Harel, Gideon Parchomovsky

All Faculty Scholarship

Hate crime legislation has sparked substantial political controversy and scholarly discussion. Existing justifications for hate crime legislation proceed on the premise that the rationale supporting such legislation must be found either in the greater gravity of the wrongdoing involved or in the perpetrator's greater degree of culpability. This premise stems from a fundamental theory that dominates criminal law scholarship: the wrongfulness-culpability hypothesis. The wrongfulness-culpability hypothesis posits that the only two grounds that may justify disparate treatment of offenses are the greater wrongfulness of the act or the greater culpability of the perpetrator. Yet, all attempts to demonstrate that hate crimes …

Gewirth On Necessary Goods: What Is The Agent Committed To Valuing?, Donald H. Regan

Book Chapters

In this chapter I shall be concerned with stage I of Gewirth's argument, in which he argues that the agent must value her freedom and well-being as necessary goods. Stage I has attracted less criticism over the years than stages II and III, but even so, a good deal has been written about it. I do not claim to have found any brand new objection to Gewirth's argument. The core of my objection occurred to me during my first reading of Reason and Morality, and it obviously occurred to a number of other people as well. 3 But it is …

Near Misses, William I. Miller

Articles

I was recently invited to give a keynote address for a small academic conference whose advertised theme was "Near Misses, Contingencies, and Histories." I have a rough and ready understanding of the near miss, the same kind of understanding we have of most words and phrases that spill out effortlessly in normal conversation. I use it and have heard it used by myriad others to describe a certain style of disappointment and regret. It is a concept generally available to us all, but when coupled with contingencies and histories, as in the title of the conference with its vague suggestions …

Three Limitations Of Deliberative Democracy: Identity Politics, Bad Faith, And Indeterminancy, William H. Simon

Faculty Scholarship

In Democracy and Disagreement, Amy Gutmann and Dennis Thompson elaborate a liberal political style designed to complement the substantive liberalism they and others have developed in recent years. The style they portray is deliberative, and its essence is the appeal to principle.

Apparently Substantial, Oddly Hollow: The Enigmatic Practice Of Justice, Heidi Li Feldman

Michigan Law Review

The Practice of Justice: A Theory of Lawyers' Ethics, by William H. Simon, is one of the most thoughtful and important books in legal theory - not just legal ethics - published in the past ten years. Like David Luban's seminal contribution to legal ethics, Lawyers and Justice: An Ethical Study, published a decade ago, Simon's book is a deliberate rival to accounts of lawyers' professional responsibility that begin with a command to zealous advocacy, end with a prohibition on outright illegal conduct, and offer nothing in between. Authors and commentators have grown increasingly dissatisfied with this as the basic …

The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii

Michigan Law Review

Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …

The Distributive Foundation Of Corrective Justice, Hanoch Dagan

Michigan Law Review

There are two, apparently conflicting, approaches to private law theorizing. One approach - by now, dare I say, the prevailing approach - analyzes private law through the lens of its social, economic, cultural, or political meanings and ramifications. For the purposes of this Article, we may call the proponents of this approach the "social values school." Other theorists, those who take a corrective justice approach, insist that the adjective "private" is significant and should be the starting point for any understanding of "private law." They claim that this starting point inevitably generates a radically different understanding of private law. Organized …

Disenfranchisement As Punishment: Reflections On The Racial Uses Of Infamia, George P. Fletcher

Faculty Scholarship

The practice of disenfranchising felons, though decreasing, is still widespread. In this Article, Professor George Fletcher reflects on the use of disenfranchisement as punishment, the lack of a convincing theoretical justification for it, and its disproportionate impact on the African.American community. Fletcher presents a number of powerful arguments against the constitutionality of the practice, but he emphasizes that there is a deeper problem with disenfranchisement as punishment: It reinforces the branding of felons as an "untouchable" class and thus helps to prevent their effective reintegration into our society.

Virtuous Lying: A Critique Of Quasi-Categorical Moralism, William H. Simon

Faculty Scholarship

Popular and professional moralists have a tendency to over-condemn lying. This Article is a critique of that tendency and the more general outlook it exemplifies, which I call Quasi-Categorical Moralism. I begin with an illustration from my own experience of morally appropriate lying that is condemned by the legal profession's ethics norms. I proceed to a critical examination of the arguments against lying in what is perhaps the best known contemporary work on professional ethics – Sissela Bok's Lying. I then explore the more sympathetic treatment of lying in a broad range of literary and philosophical works typically ignored …