Law Commons^™

The Problems With Artifact Legal Theory, Brian Z. Tamanaha

Scholarship@WashULaw

A philosophical account that appears to be gaining momentum of late among legal philosophers is that law is an artifact. Artifacts are generally understood by philosophers to be intentionally created functional objects, and the intended function determines what kind of artifact it is. Artifact legal theorists contend that legal rules, legal institutions, and legal systems are artifacts. This essay critically examines artifact legal theory. While striving to make law fit artifact theory, leading proponents stretch the meanings of and connections between intentions, creation, objects, and functions, and in the process of doing so, they distort legal phenomena. Artifact theory, I …

Complicity And Lesser Evils: A Tale Of Two Lawyers, David Luban

Georgetown Law Faculty Publications and Other Works

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: …

The Semantics And Pragmatics Of Legal Statements, Michael S. Green

Popular Media

No abstract provided.

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

Faculty Scholarship

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

The New Eliminativism, Michael S. Green

Popular Media

No abstract provided.

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Prediction Theories Of Law And The Internal Point Of View, Michael S. Green

Faculty Publications

No abstract provided.

On Hart's Category Mistake, Michael S. Green

Faculty Publications

This essay concerns Scott Shapiro’s criticism that H.L.A. Hart’s theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro’s criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro’s planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro’s criticism of Hart, as it stands, is …

The Lautsi Decision And The American Establishment Clause Experience: A Response To Professor Weiler, William P. Marshall

Faculty Publications

No abstract provided.

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship at Penn Carey Law

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of …

Citizens United And The Roberts Court's War On Democracy, Gene Nichol

Faculty Publications

No abstract provided.

Leiter On The Legal Realists, Michael S. Green

Faculty Publications

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to …

Punishment As Contract, Claire Oakes Finkelstein

Faculty Scholarship at Penn Carey Law

This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, …

What Will Our Future Look Like And How Will We Respond?, Michael A. Fitts

Faculty Scholarship at Penn Carey Law

No abstract provided.

"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh

Faculty Scholarship at Penn Carey Law

No abstract provided.

Elections Matter, Michael J. Gerhardt

Faculty Publications

No abstract provided.

James Wilson And The Scottish Enlightenment, William Ewald

Faculty Scholarship at Penn Carey Law

No abstract provided.

James Wilson And The Drafting Of The Constitution, William Ewald

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang

Faculty Scholarship at Penn Carey Law

In this Article, I argue that tax and transfer policies are more efficient than immigration restrictions as instruments for raising the after tax incomes of the least skilled native workers. Policies to protect these native workers frol1'l immigrant competition in the labor market do no better at promoting distributive justice and are likely to impose a greater economic burden on natives in the country of immigration than the tax alternative. These immigration restrictions are especially costly given the disproportionate burden that they place on households with working women, which discourages fel1'wle participation in the labor force. This burden runs contrary …

Pragmatic Idealism And The Scholarship Of Mel Durchslag, William P. Marshall

Faculty Publications

No abstract provided.

The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick

Faculty Scholarship at Penn Carey Law

No abstract provided.

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Carey Law

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories of …

Moralizing In Public, Anita L. Allen

Faculty Scholarship at Penn Carey Law

No abstract provided.

Hobbes And The Internal Point Of View, Claire Oakes Finkelstein

Faculty Scholarship at Penn Carey Law

No abstract provided.

Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry

Faculty Scholarship at Penn Carey Law

No abstract provided.

Government Regulation Of Irrationality: Moral And Cognitive Hazards, Jonathan Klick, Gregory Mitchell

Faculty Scholarship at Penn Carey Law

No abstract provided.

Judicial Accountability In A Time Of Legal Realism, William P. Marshall

Faculty Publications

No abstract provided.

What Personal Rules Can Teach Us About Basic Institutions, Claire Oakes Finkelstein

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan

Faculty Publications

No abstract provided.

Halpin On Dworkin's Fallacy: A Surreply, Michael S. Green

Faculty Publications

No abstract provided.