Law Commons^™

Balancing Free Speech, Alexander Tsesis

Alexander Tsesis

This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and …

The Right To Education: An Analysis Through The Lens Of The Deontological Method Of Immanuel Kant, Kavana Ramaswamy

Northwestern Journal of Human Rights

The framework of categorical imperatives is one of the most famous deontological theories of rights that have been formulated. The framework has often been used to justify human rights policies all over the world. While they have been subject to several criticisms over the last two centuries, some of these include improvements to the original framework. This paper analyses the framework of the categorical imperatives and suggest certain modifications to improve internal coherence.

The paper then seeks to apply this framework to the right to education, a right that is under fire in the conservatively-charged political arena today. This is …

Dissonance Between Personal Belief And Professional Values And The Challenge Of Facing Other Conflicting Ideas, Christopher Tan

Richard T. Schellhase Essay Prize in Ethics

It is the recommendation of this author that, in regards to this case, Jess Smith should complete the project despite her misgivings about the ethical nature of the band. However, Smith should ensure that both the client and manager are notified of her concerns along with the specific components of the project with which she took issue. The case of Jess Smith and the Design Firm ultimately highlights the issue regarding how to resolve dissonance between personal belief and professional values and more broadly the challenge of facing other ideas that challenge an individual’s personal convictions.

Balancing Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and …

The Means Principle, Larry Alexander

Faculty Scholarship

Michael Moore believes there are deontological constraints on actors’ pursuit of good consequences. He believes these constraints are best conceived of as agent-relative prohibitions such as “you must not intentionally kill, batter, rape, steal, etc.” I, joined in recent years by Kimberly Ferzan, believe that the best interpretation of deontological constraints — the interpretation that best accounts for our intuitions about certain stock cases — is that they are constraints on the causal means by which good consequences may be achieved. We believe those constraints can be unified under a single deontological principle, what we call the “means principle.” It …

Ethical Frameworks, Corey A. Ciocchetti

Corey A Ciocchetti

This article discusses the three prominent business ethics theories of Utilitarianism, Deontology and Virtue Ethics. This is a short primer on these theories.

Is Torture Justified In Terrorism Cases?: Comparing U.S. And European Views, Stephen P. Hoffman

Stephen P. Hoffman

This essay discusses issues of torture and some of the philosophical underpinnings. First, I define torture as it is used in international and human rights law. Then, I discuss three primary theories of torture: deontology, consequentialism, and threshold deontology. After setting this groundwork, I introduce particular issues in terrorism cases such as the “ticking bomb” scenario, which is often used to argue that torture may be appropriate and possibly required when done to save many lives. This invariably must include a discussion of the necessity doctrine, the legal doctrine allowing an individual to take extraordinary — even illegal — measures …

Sacrifice And Sacred Honor: Why The Constitution Is A Suicide Pact, Peter B. Bayer

Peter B Bayer

Most legal scholars and elected officials embrace the popular cliché that “the Constitution is not a suicide pact.” Typically, those commentators extol the “Constitution of necessity,” the supposition that Government, essentially the Executive, may take any action -- may abridge or deny any fundamental right -- to alleviate a serious national security threat. The Constitution of necessity is wrong. This article explains that strict devotion to the “fundamental fairness” principles of the Constitution’s Due Process Clauses is America’s utmost legal and moral duty, surpassing all other considerations, even safety, security and survival. Analysis begins with the most basic premises: the …

Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer

Scholarly Works

Most legal scholars and elected officials embrace the popular clich6 that "the Constitution is not a suicide pact." Typically, those commentators extol the "Constitution of necessity," the supposition that Government, essentially the Executive, may take any action-may abridge or deny any fundamental right-to alleviate a sufficiently serious national security threat. The "Constitution of necessity" is wrong. This Article explains that strict devotion to the "fundamental fairness" principles of the Constitution's Due Process Clauses is America's utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

The analysis begins with the most basic premises: the definition of …

The Instrumental Justice Of Private Law, Alan Calnan

Alan Calnan

Instrumentalists and deontologists have long battled for an exclusive theory of private law. The instrumentalists have argued that private law is merely a means to achieving any number of political or social ends. Deontologists, by contrast, have contended that the law seeks only the moral end of justice and cannot be used for anything else. In this article, I critique these extreme positions and offer an intermediate theory called “instrumental justice.” I show that the absolute instrumental view is elusive, illusory, and illiberal, while the absolute deontological view is incoherent, implausible, and in one critical respect, impossible. Instrumental justice avoids …

Deontology, Political Morality, And The State Symposium: Political Theory And Criminal Punishment, Youngjae Lee

Faculty Scholarship

Sometimes the government makes a policy choice, and, as a result, innocent persons die. How should we morally assess such deaths? For instance, is the government’s choice of the reasonable doubt standard or its decision to restrict the death penalty to certain narrow categories responsible for deaths of innocents? If so, does the deontological norm against harming people dictate that the government loosen the evidentiary standard for conviction or widen the availability of capital punishment? This Article argues that the traditional distinctions between intending and foreseeing harm and between causing harm and allowing harm to occur are insufficient to absolve …

Paging King Solomon: Towards Allowing Organ Donation From Anencephalic Infants, Fazal Khan

Fazal Khan

The article, Paging King Solomon: Towards Allowing Organ Donation from Anencephalic Infants, argues that organ donation from anencephalic infants is ethically and legally justifiable. Anencephaly is a medical condition characterized by a lack of brain development above the brainstem, so such children often lack a cerebrum, cerebellum and a skull. With an intact brainstem, these children can maintain heart and lung function. Without higher brain functioning though, these children are not capable of human consciousness and they typically have very short life spans measured in days or weeks. The way in which an anencephalic infant dies typically destroys the suitability …

The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson

William & Mary Law Review

No abstract provided.

Should Coercive Interrogation Be Legal?, Eric A. Posner, Adrian Vermeule

Michigan Law Review

Most academics who have written on coercive interrogation believe that its use is justified in extreme or catastrophic scenarios but that nonetheless it should be illegal. They argue that formal illegality will not prevent justified use of coercive interrogation because government agents will be willing to risk criminal liability and are likely to be pardoned, acquitted, or otherwise forgiven if their behavior is morally justified. This outlaw and forgive approach to coercive interrogation is supposed to prevent coercive interrogation from being applied in inappropriate settings, to be symbolically important, and nonetheless to permit justified coercive interrogation. We argue that the …

Duty And Consequence: A Non-Conflating Theory Of Promise And Contract, Jeffrey Marc Lipshaw

ExpressO

I argue that the debate between deontologists and consequentialists of contract law conflates and therefore unduly confuses the analysis of each of them. The debate is a reprise of the conflation of reason and knowledge. Present-day legal consequentialists see reason (pure or practical) as unhelpful or worse. Pragmatism, if anything, rules the day. But the present-day rationalists fare no better, seeking to make constitutive claims of knowledge on the basis of reason. Hence the concept of contract as promise has been subject to the criticism that it fails as an explanation of the law (versus an exposition of how our …

Deontology At The Threshold, Larry Alexander

San Diego Law Review

In his 1989 law review article, Torture and the Balance of Evils,' later republished as Chapter Seventeen in Placing Blame, Michael Moore declares himself to be a "threshold deontologist." What he means is this: There are some acts that are morally wrong despite producing a net positive balance of consequences; but if the positive balance of consequences becomes sufficiently great-especially if it does so by averting horrible consequences as opposed to merely making people quite well off-then one is morally permitted, and perhaps required, to engage in those acts that are otherwise morally prohibited. Thus, one may not kill or …

The State Interest In The Good Citizen: Constitutional Balance Between The Citizen And The Perfectionist State, Steve Sheppard

Steve Sheppard

Judges must have flexibility when responding to the changing norms of justice in society, but they must also maintain predictability to enhance the cultural acceptance of the Court’s authority and the authority of law in society. Predictability demands that a rationale for each decision be communicated by the authors of opinions so that it can be replicable by other courts.

The debate over a preferred method of adjudication, balancing or categorical, is moot because the two methods are not mutually exclusive. The important issue is the definition of interests to be promoted or discouraged by law, which must also be …

Blackmail: Deontology - 1993, Wendy J. Gordon

Scholarship Chronologically

The basic logic of my deontologic approach is this.