Law and Philosophy Commons^™

Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley

Dickinson Law Review (2017-Present)

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.

Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and …

Love, Anger, And Social Change, Deborah J. Cantrell

Publications

Emotions matter to social movement activists—including social movement lawyers. Emotions motivate activism and emotions sustain the long hard work of social change. Movement activists and lawyers know that from their own lived experiences. Further, when we listen to movement activists talk about their work, we hear them speak commonly about two emotions in particular—love and anger. To be a social movement activist (whether lawyer or non-lawyer) means to have passion about one’s cause, and to have a fire in the belly to keep going despite setbacks and slow progress. We hear activists and movement lawyers talk about how the love …

Promoting Equality Through Empirical Desert, Ilya Rudyak

Texas A&M Law Review

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability. This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory. Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform. Chief among them: it draws from community intuitions, and community intuitions—as the theory acknowledges—are sometimes immoral. In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi …

John The Theologian: Towards Integrating Law And Religion, Gordon T. Butler

Faculty Articles

No abstract provided.

Examining The Model Rules Of Professional Conduct To Include Women's Moral Experience And Feminist Ethics, Anietie Akpan

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Private International Law As An Ethic Of Responsivity, Ralf Michaels

Faculty Scholarship

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our …

Democratizing Interpretation, Anya Bernstein

Faculty Scholarship

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.

These outsourcing approaches show a disconnect between the questions judges pose and the methods they use …

"Beauty Is Truth And Truth Beauty": How Intuitive Insights Shape Legal Reasoning And The Rule Of Law, Stephen M. Maurer

Seattle University Law Review

Scientists have long recognized two distinct forms of human thought. “Type 1” reasoning is unconscious, intuitive, and specializes in finding complex patterns. It is typically associated with the aesthetic emotion that John Keats called “beauty.” “Type 2” reasoning is conscious, articulable, and deductive. Scholars usually assume that legal reasoning is entirely Type 2. However, critics from Holmes to Posner have protested that unconscious and intuitive judgments are at least comparably important. This Article takes the conjecture seriously by asking what science can add to our understanding of how lawyers and judges interpret legal texts. The analysis is overdue. Humanities scholars …

A Life Absolutely Bare? A Reflection On Resistance By Irregular Refugees Against Fingerprinting As State Biopolitical Control In The European Union, Ziang Zhou

Claremont-UC Undergraduate Research Conference on the European Union

In a legally transitory category, irregular refugees- experience a double precariousness. They risk their lives to travel across treacherous seas to Europe for a better life. However, upon the long-awaited embarkation on the European land, they are exposed once again to the precariousness of the asylum application. They are “powerless”, “with no rights” and “to be sacrificed” as Giorgio Agamben and Hannah Arendt suggested in their respective understanding of a “bare life”, la nuda vita. In light of the administrative difficulties in managing asylum application, the European Union introduced the “Dublin Agreement”, which stipulates mandatory biometric data collection for …

Language's Empire: A Counter-Telling Of Administrative Law In Canada, Nicholas Hooper

LLM Theses

This thesis renders the unstated assumptions that animate statutory interpretation in the administrative state. It argues that the current approach is a disingenuous rhetorical overlay that masks the politics of definitional meaning. After rejecting the possibility of structuring principles in our (post)modern oversaturation of signs, the thesis concludes with an aspirational account of interpretive pragmatism in the face of uncertainty.

Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow

Articles

A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much …

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne Barnes

Faculty Scholarship

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that …

The Plot To Overthrow Genocide: State Laws Mandating Education About The Foulest Crime Of All

Marquette Law Review

This Article shines a light on a little noticed phenomenon in American law: the promulgation of ten state statutes and one state regulation, each requiring education about genocide in elementary and/or secondary schools. The mandates, adopted from 1989 through 2018, appear to be only the beginning inasmuch as in 2017 another nineteen states publicly pledged to pass such mandates as well.

The Article describes each of the existing mandates and compares them to each other, including an analysis of the laws’ respective strong and weak points. This exposition, of interest in itself, also sets the stage for proposals to improve …

The History, Meaning, And Use Of The Words Justice And Judge, Jason Boatright

St. Mary's Law Journal

The words justice and judge have similar meanings because they have a common ancestry. They are derived from the same Latin term, jus, which is defined in dictionaries as “right” and “law.” However, those definitions of jus are so broad that they obscure the details of what the term meant when it formed the words that eventually became justice and judge. The etymology of jus reveals the kind of right and law it signified was related to the concepts of restriction and obligation. Vestiges of this sense of jus survived in the meaning of justice and judge. …

The Texas Standards For Appellate Conduct: An Annotated Guide And Commentary, Gina M. Benavides, Joshua J. Caldwell

St. Mary's Journal on Legal Malpractice & Ethics

The legal profession is bound by ethical rules that govern and guide our conduct and actions as lawyers. One of the under-appreciated, but profoundly important set of guidelines is the Texas Standards for Appellate Conduct. These Standards serve as an excellent practice guide for appellate practitioners and appellate courts and as a model code of conduct for the Bar as a whole.

The goal of this Article is to dissect the Texas Standards for Appellate Conduct and provide useful commentaries for the readers to better appreciate and understand each element of the Standards. The commentaries provide direct case examples and …

Debt Stigma And Social Class, Michael D. Sousa

Seattle University Law Review

For as long as creditors have been extending credit to consumer debtors, Western society has stigmatized those individuals who failed to repay their financial obligations or who found themselves swamped by unmanageable debt. Over the past three decades, scholars have studied whether the stigma surrounding indebtedness and bankruptcy has declined or increased in American society, mainly due to the sharp spike in consumer bankruptcy filings during the 1990s. These studies have resulted in a general debate over whether debt stigma still exists in society. Absent from the scholarly literature to date is an exploration of whether debtors from different social …

When At Loggerheads With Customary International Law: The Right To Run For Public Office And The Right To Vote, Thompson Chengeta

Brooklyn Journal of International Law

Many populist demagogues in America and Europe have spoken; and continue to speak; against human rights in their campaigns for political office. This article discusses the factors that have contributed to the current wave of populism; and the nature of the challenges that are presented by populism to democracy; human rights; and constitutionalism from an international human rights law perspective. It also focuses on President Donald Trump; who was voted President of the United States; even after he clearly and publicly indicated his support for torture and his intentions to approve it in the United States. To that end; the …

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Georgia State University Law Review

One of the major branches of the field of law and literature is often described as “law as literature.” Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes.

Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

What Can We Learn From Vulnerability Theory?, Phillip Rich

Honors Projects

Martha Albertson Fineman frames philosophies of justice, freedom, equality, and human nature alongside original insights about the role of vulnerability and institutions in people’s lives to argue for increased government intervention. The conglomeration of these ideas form vulnerability theory, an emerging legal theory providing a loose framework for evaluating and creating public policy. The following article can be broken down into two parts. The first part defines vulnerability theory by identifying, evaluating, and discussing the interaction among the five major components of vulnerability theory: the rejection of the liberal subject in favor of a vulnerable subject, the universality and constancy …

Nuccio V. Nuccio: The Doctrine Of Equitable Estoppel Will Not Bar The Statute Of Limitations Defense In A Child Sexual Abuse Case Involving Repressed Memory, Christina J. D'Appolonia

Maine Law Review

Kathleen Nuccio alleged that she was sexually abused by her father when she was three years old. He continued to sexually abuse her for ten long years. He threatened her life when he held a chisel to her throat and vowed to kill her if she ever told anyone of the abuse. Luke Nuccio not only sexually defiled his daughter but also verbally abused her and physically beat her until she was seventeen years old. One such beating caused damage so severe to Kathleen's ear that she was forced to have surgery. Kathleen never spoke of the abuse during the …

Foreword: What’S Next? Counter-Stories And Theorizing Resistance, Tayyab Mahmud

Seattle Journal for Social Justice

No abstract provided.

Holy Gender! Promoting Free Exercise Of Gender By Discernment Without Establishing Binary Sex Or Compulsory Fluidity, José Gabilondo

Seattle Journal for Social Justice

No abstract provided.

“Who Is A Latcrit?”: Jerome Culp And Angela Harris Provide Answers And Ways Of Being, Margaret Montoya

Seattle Journal for Social Justice

No abstract provided.

Panel Discussion: Ethnography, Ethics & Law

Northwestern Journal of Law & Social Policy

No abstract provided.

Maine's Sex Offender Registration And Notification Act: Wise Or Wicked?, James A. Billings, Crystal L. Bulges University Of Maine School Of Law

Maine Law Review

The purpose of this Comment is to discuss both the constitutionality and advisability of such sex offender notification statutes with specific reference to Maine's Sex Offender Registration and Notification Act (the SORNA). This Comment will discuss, independent of their constitutionality, the advisability of such statutes on a policy level. It is the Authors' thesis that the SORNA will survive constitutional challenges, but as a means of alleviating the problem of sex offender recidivism in this country, the SORNA and similar statutes fail both in theory and in practice. Alternative approaches based on interdisciplinary study will be suggested.

Foreword: Shall These Bones Live? Resurrecting Truth In American Law And Public Discourse, Wilson Huhn

Duquesne Law Review

No abstract provided.

Finding The Truth, Louise Antony

Duquesne Law Review

No abstract provided.

The Resurrection Of Trust In American Law And Public Discourse, Bruce Ledewitz

Duquesne Law Review

No abstract provided.

James Wilson, Necessary Truths, And The Foundations Of Law, Justin Buckley Dyer

Duquesne Law Review

No abstract provided.