Law Commons^™

Holmes And Dissent, Allen P. Mendenhall

Allen Mendenhall

Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Holmes’s dissents were sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and …

Rights-Based Theories Of Accident Law, Gregory J. Hall

All Faculty Scholarship

This article shows that extant rights-based theories of accident law contain a gaping hole. They inadequately address the following question: What justifies using community standards to assign accident costs in tort law?

In the United States, the jury determines negligence for accidental harm by asking whether the defendant met the objective reasonable person standard. However, what determines the content of the reasonable person standard is enigmatic. Some tort theorists say that the content is filled out by juries using cost benefit analysis while others say that juries apply community norms and conventions. I demonstrate that what is missing from this …

Are Institutions And Empiricism Enough? A Review Of Allen Buchanan, Human Rights, Legitimacy, And The Use Of Force, Matthew J. Lister

All Faculty Scholarship

Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan’s recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I review Buchanan’s new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to …

Law00520 Philosophy Of Law, 3rd Edition, Anne Schillmoller

Anne Schillmoller

Philosophy, not jurisprudence Note that this is not a ‘jurisprudence’ unit. The reasons why will be discussed in detail in topic 1. Briefly, jurisprudence approaches questions about law from an ‘internal’ or ‘inside’ perspective, that is, one which seeks a conceptual basis for law from within law itself.This unit, however, aims to situate ideas about law and justice within a broader range of philosophical contexts. While traditional jurisprudence provides insights into particular theoretical movements within Anglo-Australian law, it fails to interrogatebroader philosophical frameworks or ‘external’ perspectives which inform thisjurisprudence. It is these broader frameworks which are the central concern of …

Heidegger And The Essence Of Adjudication, George Souri

George Souri

This paper presents an account of adjudication based on the philosophy of Martin Heidegger. As this paper argues, we can only hope to better understand adjudication if we recognize that adjudication is a socio-temporally situated activity, and not a theoretical object. Heidegger’s philosophical insights are especially salient to such a project for several reasons. First, Heidegger’s re-conception of ontology, and his notion of being-in-the-world, provide a truer-to-observation account of how human beings come to understand their world and take in the content of experience towards completing projects. Second, Heidegger’s account of context, inter-subjectivity, and common understanding provide a basis upon …

Children's Oppression, Rights And Liberation, Samantha Godwin

Samantha Godwin

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …

Law Is Not (Best Considered) An Essentially Contested Concept, Kenneth M. Ehrenberg

Kenneth M Ehrenberg

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for …

Consulting The Architect When Problems Arise – The Divine Law, Brian M. Mccall

Brian M McCall