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Articles 1 - 30 of 43
Full-Text Articles in Law
Of Law And Other Artificial Normative Systems, Mitchell N. Berman
Of Law And Other Artificial Normative Systems, Mitchell N. Berman
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Different theories of law are situated within different pictures of our normative landscape. This essay aims to make more visible and attractive one picture that reflects basic positivist sensibilities yet is oddly marginalized in the current jurisprudential literature. The picture that I have in mind tries to vindicate surface appearances. It maintains that the social world is densely populated by countless normative systems of human construction (“artificial normative systems”) whose core functions are to generate and maintain norms (oughts, obligations, powers, rights, prohibitions, and the like). The norms that these systems output are conceptually independent from each other, and may …
The Inevitability And Ubiquity Of Cycling In All Feasible Legal Regimes: A Formal Proof, Leo Katz, Alvaro Sandroni
The Inevitability And Ubiquity Of Cycling In All Feasible Legal Regimes: A Formal Proof, Leo Katz, Alvaro Sandroni
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Intransitive choices, or cycling, are generally held to be the mark of irrationality. When a set of rules engenders such choices, it is usually held to be irrational and in need of reform. In this article, we prove a series of theorems, demonstrating that all feasible legal regimes are going to be rife with cycling. Our first result, the legal cycling theorem, shows that unless a legal system meets some extremely restrictive conditions, it will lead to cycling. The discussion that follows, along with our second result, the combination theorem, shows exactly why these conditions are almost impossible to meet. …
The Tragedy Of Justice Scalia, Mitchell N. Berman
The Tragedy Of Justice Scalia, Mitchell N. Berman
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Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of …
Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen
Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen
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In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …
What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen
What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen
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No abstract provided.
Are Institutions And Empiricism Enough? A Review Of Allen Buchanan, Human Rights, Legitimacy, And The Use Of Force, Matthew J. Lister
Are Institutions And Empiricism Enough? A Review Of Allen Buchanan, Human Rights, Legitimacy, And The Use Of Force, Matthew J. Lister
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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 …
Immigration, Association, And The Family, Matthew J. Lister
Immigration, Association, And The Family, Matthew J. Lister
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In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why …
Mental Disorders And The "System Of Judgmental Responsibility", Anita L. Allen
Mental Disorders And The "System Of Judgmental Responsibility", Anita L. Allen
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No abstract provided.
The Perils Of Forgetting Fairness, Michael B. Dorff, Kimberly Kessler Ferzan
The Perils Of Forgetting Fairness, Michael B. Dorff, Kimberly Kessler Ferzan
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No abstract provided.
Liability Insurance, Moral Luck, And Auto Accidents, Tom Baker
Liability Insurance, Moral Luck, And Auto Accidents, Tom Baker
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Beginning with the seminal work by Williams and Nagel, moral philosophers have used auto accident hypotheticals to illustrate the phenomenon of moral luck. Moral luck occurs in the hypotheticals because (and to the extent that) two equally careless drivers are assessed differently because only one of them caused an accident. This article considers whether these philosophical discussions might contribute to the public policy debate over compensation for auto accidents. Using liability and insurance practices in the United States as an illustrative example, the article explains that auto liability insurance substantially mitigates moral luck and argues that, as a result, the …
The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson
The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson
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Desert appears to be in ascendence as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical conception of desert that is or should be promoted. Each offers a distinct advantage over the other. Deontological desert can transcend community, situation, and time to give a conception of justice that can be relied upon to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than can deontological desert because, contrary to common wisdom, there is a good deal of agreement …
The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick
The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick
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No abstract provided.
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
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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 …
The Consciousness Of Religion And The Consciousness Of Law, With Some Implications For Dialogue, Howard Lesnick
The Consciousness Of Religion And The Consciousness Of Law, With Some Implications For Dialogue, Howard Lesnick
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No abstract provided.
Hobbes And The Internal Point Of View, Claire Oakes Finkelstein
Hobbes And The Internal Point Of View, Claire Oakes Finkelstein
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No abstract provided.
Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler
Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler
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The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist …
Introduction, Anita L. Allen
Moralizing In Public, Anita L. Allen
Law, Ethics And Mystery, Geoffrey C. Hazard Jr.
Law, Ethics And Mystery, Geoffrey C. Hazard Jr.
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No abstract provided.
What Personal Rules Can Teach Us About Basic Institutions, Claire Oakes Finkelstein
What Personal Rules Can Teach Us About Basic Institutions, Claire Oakes Finkelstein
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No abstract provided.
Ripstein, Rawls, And Responsibility, Stephen R. Perry
Ripstein, Rawls, And Responsibility, Stephen R. Perry
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No abstract provided.
Harm, History, And Counterfactuals, Stephen R. Perry
Harm, History, And Counterfactuals, Stephen R. Perry
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No abstract provided.
No Other Gods: Answering The Call Of Faith In The Practice Of Law, Howard Lesnick
No Other Gods: Answering The Call Of Faith In The Practice Of Law, Howard Lesnick
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No abstract provided.
Privacy Isn't Everything: Accountability As A Personal And Social Good, Anita L. Allen
Privacy Isn't Everything: Accountability As A Personal And Social Good, Anita L. Allen
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No abstract provided.
Method And Principle In Legal Theory, Stephen R. Perry
Method And Principle In Legal Theory, Stephen R. Perry
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No abstract provided.
Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein
Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein
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No abstract provided.
Two Men On A Plank, Claire Oakes Finkelstein
Two Men On A Plank, Claire Oakes Finkelstein
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Can two individuals, each of whom needs a certain resource for his survival, have equal and conflicting rights to that resource? If so, is each entitled to try to exclude the other from its use? An old chestnut of moral and legal philosophy raises the problem. Following a shipwreck, two men converge simultaneously on a plank floating in the sea. There is no other plank available and no immediate hope of rescue. Unfortunately the plank can support only one; it sinks if two try to cling to it. Is it permissible for each to attempt to secure his own survival …
Equality And Affiliation As Bases Of Ethical Responsibility, Geoffrey C. Hazard Jr.
Equality And Affiliation As Bases Of Ethical Responsibility, Geoffrey C. Hazard Jr.
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No abstract provided.
Positivism And The Notion Of An Offense, Claire Oakes Finkelstein
Positivism And The Notion Of An Offense, Claire Oakes Finkelstein
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While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under …
Lying To Protect Privacy, Anita L. Allen
Lying To Protect Privacy, Anita L. Allen
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No abstract provided.