Law Commons^™

Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz

All Faculty Scholarship

Legal doctrine exhibits some striking temporal anomalies, previously not much adverted to. Wrongdoing looked at before it has occurred, and after is has occurred, is apt to look very different. I take up the two key components of wrongdoing seriatim, the harm-portion and the misconduct-portion: the "damage" part and the "liability" part. We tend to look at harm in a harm-agnifying way before it has occurred, and in a harm-inimizing way afterwards. We thus tend to think about negligence and the harm it wreaks in seemingly inconsistent ways. I examine and reject some possible explanations of this. Misconduct too looks …

The Unruliness Of Rules, Peter A. Alces

Faculty Publications

No abstract provided.

About Morality And The Nature Of Law, Joseph Raz

Faculty Scholarship

In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

The Aesthetics Of American Law, Pierre Schlag

Publications

Before the ethical dreams and political ambitions of law can even be articulated, let alone realized, the aesthetics of law have already shaped the medium within which those projects will have to do their work. This work attempts to retrieve and expose those recurrent forms that shape the creation, apprehension, and identity of law. What is at stake is an attempt to reveal the aesthetics within which American law is cast. The point is not simply to appreciate these aesthetics, but to understand how "substantive" conflicts in law are often motivated, sustained and circumscribed by the aesthetics through which they …

Reasoning With Rules, Joseph Raz

Faculty Scholarship

What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that reason is the same in all domains. According to them, only the contents of the law differentiate it from …

Law And Phrenology, Pierre Schlag

Publications

As the intellectual credentials of American law become increasingly dubious, the question arises: how has this discipline been intellectually organized to sustain belief among its academic practitioners? This Commentary explores the nineteenth-century pseudo-science of phrenology as a way of gaining insight into the intellectual organization of American law. Although there are, obviously, significant differences, the parallels are at once striking and edifying. Both phrenology and law emerged as disciplinary knowledges through attempts to cast them in the form of sciences. In both cases, the "sciences" were aesthetically organized around a fundamental ontology of reifications and animisms -- "faculties" in the …

The Empty Circles Of Liberal Justification, Pierre Schlag

Publications

No abstract provided.

The Antinomy Of Coherence And Determinacy, William A. Edmundson

Faculty Publications By Year

Coherence and determinacy are both apparent desiderata for bodies of law and legal systems. Unfortunately, in legal systems of any complexity, increasing the degree of one invariably brings about a lessening of the other. For theories of law - such as Ronald Dworkin's - that emphasize the importance of coherence in judicial reasoning, while requiring as a condition of legitimacy that legal rights pre-exist judicial decisions, this must be an unwelcome fact.

The First Cut Is (Not) The Deepest: Deconstructing "Female Genital Mutilation" And The Criminalization Of The Other, David Fraser

Dalhousie Law Journal

Deconstruction, as a 'philosophy'andas a strategy for the reading of texts, offers us the ability to engage in a politics and ethics of justice which seeks to recognize our responsibility to the Other. By 'reading' 'female genital mutilation' with this obligation in mind, this article attempts to deal with the prejudices and barriers to justice which present themselves to those of us in the West who seek an engagement with the Other. The article offers a warning and a reading of the 'text' of 'female genital mutilation' informed by our obligation to justice.

Values, Pierre Schlag

Publications

No abstract provided.

A Heterodox Catechism, Paul Campos

Publications

No abstract provided.

The Paradox Of Punishment, Paul Campos

Publications

Retribution demands reciprocity. In this Essay, Professor Campos contends that classic retributive theory encounters a logical paradox when it attempts to equalize the status of criminal and victim through the institution of punishment. This paradox arises out of a clash between the deontological requirements of equality and justice. He concludes by speculating on the historical relationship between rationalist justifications for vengeance and the elimination of punishment as public spectacle.

Foreword: Postmodernism And Law, Pierre Schlag

Publications

No abstract provided.

Rights, Communities, And Tradition, Brian Slattery

Articles & Book Chapters

This paper argues that there is a close connection between basic human rights and communal bonds. It criticizes the philosophical views of Alan Gewirth and Alasdair MacIntyre, which in differing ways deny this connection.

Rights, Communities, And Tradition, Brian Slattery

Brian Slattery

"Le Hors De Texte, C'Est Moi": The Politics Of Form And The Domestication Of Deconstruction, Pierre Schlag

Publications

No abstract provided.

Missing Pieces: A Cognitive Approach To Law, Pierre Schlag

Publications

No abstract provided.

The Use Of Evolution Theory In Law, M. B. W. Sinclair

Articles by Maurer Faculty

No abstract provided.

Alternative Methodologies In Contemporary Jurisprudence: Comments On Dworkin, Philip E. Soper

Articles

I have two brief points to make. Both involve recent developments in jurisprudence, by which I mean by and large the subject that Ronald Dworkin has just been discussing. Indeed, the first point is little more than an acknowledgement of the debt that is owed to Dworkin, not only for his specific contributions to this field, but for the implications of his work for law teaching generally.

An Attack On Categorical Approaches To Freedom Of Speech, Pierre J. Schlag

Publications

No abstract provided.

Right1, Right2, Right3, Right4 And How About Right?, Layman E. Allen

Book Chapters

Careful communication is frequently of central importance in law. The language used to communicate even with oneself in private thought profoundly influences the quality of that effort; but when one attempts to transmit an idea to another, language assumes even greater significance because of the possibilities for enormously distorting the idea. Word-skill is to be prized. Few have expressed this more aptly or succinctly than Wesley N. Hohfeld: ...[I]n any closely reasoned problem, whether legal or nonlegal, chameleon-hued words are a peril both to clear thought and to lucid expression.

The Relation And Correlation Of Freedom And Security, Henry H. Foster

West Virginia Law Review

No abstract provided.

Some Implications Of Juristic Pragmatism, Fowler Vincent Harper

Articles by Maurer Faculty

No abstract provided.

Jurisprudence And The Study Of Cases, Joseph H. Drake

Articles

Following the suggestion of our Chairman, we have apparently agreed to assume that under the theme of jurisprudence we are to include all of the abstract, nonutilitarian subjects bearing upon the subject of law. Whether we call it a historical science, a science of sciences, or a philosophy, we all believe that it Is a valuable body of rapidly increasing knowledge, and our purpose now is to determine the methodological question as to how it can be made available for our undergraduate students in the law school.