Law and Philosophy Commons^™

The Law's Secrets, Gary T. Marx

Michigan Law Review

A Review of Legal Secrets: Equality and Efficiency in the Common Law by Kim Lane Scheppele

Happy Slaves: A Critique Of Consent Theory, Adam C. Sloane

Michigan Law Review

A Review of Happy Slaves: A Critique of Consent Theory by Don Herzog

Critical Legal Studies, Michael F. Colosi

Michigan Law Review

A Review of Critical Legal Studies by Allan C. Hutchinson

Selected Topics In Tort Law, Sheila L. Birnbaum, Robert Keeton, Richard Delgado, Deborah R. Hensler

University of Richmond Law Review Symposium

This speaker series took place over several days during the Spring semester of 1990.

"The Special Problems of Causation in Toxic Tort Cases" lecture given by Sheila L. Birnbaum, Partner in the New York City firm Skadden, Arps, Slate, Meagher, & Flom. (Tuesday, January 23, 1990)

"Damage Recovery in Toxic Tort Suits" lecture given by Sheila L. Binbaum, Partner in the New York City firm Skadden, Arps, Slate, Meagher, & Flom. (Tuesday, January 30, 1990)

"Methods and Roles in Tort Lawmaking" lecture given by The Honorable Robert Keeton, Langdell Professor Emeritus at Harvard Law School, U.S. District Court Judge for …

Contract Law, Default Rules, And The Philosophy Of Promising, Richard Craswell

Michigan Law Review

Among the topics addressed by moral philosophy is the obligation to keep one's promises. To many philosophers, there is something strange (or, at least, something calling for explanatie1n) in the idea that moral obligations can be created simply by an individual's saying so yet this is what seems to happen when a person makes a promise. Consequently, there is by now a large body of literature attempting to identify the exact source and nature of this moral obligation.

Part I of this article presents a more detailed survey of recent philosophical writings about promises, for the benefit of legal readers …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Michigan Law Review

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments?

The effect of social change upon constitutional law was an issue the framers and ratifiers frequently discussed. For example, when AntiFederalists complained of the Constitution's failure to protect the jury trial in civil cases, Federalists responded that a change of circumstances might, …

Introduction, Michael A. Simon

Cardozo Law Review

No abstract provided.

Killing Daddy: Developing A Self-Defense Strategy For The Abused Child, Joelle A. Moreno

Faculty Publications

No abstract provided.

Roscoe Pound And American Sociology: A Study In Archival Frame Analysis, Sociobiography And Sociological Jurisprudence, Michael R. Hill

Department of Sociology: Dissertations, Theses, and Student Research

Roscoe Pound (1870-1964) was a noted botanist, jurist, and sociologist who founded the American school of sociological jurisprudence. Pound's sociological ideas originated at the University of Nebraska. Pound developed numerous ties to other sociologists, joined the American Sociological Society, and published in the American Journal of Sociology. Pound's modern erasure from sociological chronicles is attributed in part to hegemonic processes. The collection of archival data for this study in the history of sociology is generalized (by extending Erving Goffman's metatheory of meaning) as "archival frame analysis." Pound's intellectual milieu is analyzed using Mary Jo Deegan's theory of "core codes" …

Freedom Of Communicative Action: A Theory Of The First Amendment Freedom Of Speech, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law ... abridging the freedom of speech." This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jiirgen Habermas' theory of communicative action can serve as the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a …

The Rhetoric Of The Anti-Progressive Income Tax Movement: A Typical Male Reaction, Marjorie E. Kornhauser

Michigan Law Review

This article examines the arguments against progressivity and the supporting philosophic premises behind the mask of rhetoric. It neither treats exhaustively nor demolishes the legitimacy of the arguments or the underlying philosophy. Part I briefly summarizes the major arguments against progressivity. Part II examines the economic argument, its underlying assumptions, and its limitations. Part III examines the neoconservative philosophy which underlies the justification for a flat tax and contrasts it with an alternative feminist vision of people and society, which provides strong justification for progressive taxation.

Part IV concludes that there is a strong case for progressive taxation based not …

Adolescent Confidentiality And Family Privacy, 20 J. Marshall L. Rev. 641 (1987), Ferdinand Schoeman

UIC Law Review

No abstract provided.

The Glittering Eye Of Law, Geoffrey P. Miller

Michigan Law Review

A Review of The Authoritative and the Authoritarian by Joseph Vining

The Ninth Amendment: Source Of A Substantive Right To Privacy, 19 J. Marshall L. Rev. 959 (1986), Gerald G. Watson

UIC Law Review

No abstract provided.

Law As Rhetoric, Rhetoric As Law: The Arts Of Cultural And Communal Life, James Boyd White

Articles

In this paper I shall suggest that law is most usefully seen not, as it usually is by academics and philosophers, as a system of rules, but as a branch of rhetoric; and that the kind of rhetoric of which law is a species is most usefully seen not, as rhetoric usually is, either as a failed science or as the ignoble art of persuasion, but as the central art by which community and culture are established, maintained, and transformed. So regarded, rhetoric is continuous with law, and like it, has justice as its ultimate subject. I do not mean …

Book Review, The Politics Of Informal Justice. Vol. 1: The American Experience. Vol. 2: Comparative Studies., Frank W. Munger

Other Publications

No abstract provided.

So Reason Can Rule, Michigan Law Review

Michigan Law Review

A Review of So Reason Can Rule by Scott Buchanan

Troubling Questions: A Review Of The Decline Of The Rehabilitative Ideal, Sheldon L. Messinger

Michigan Law Review

A Review of The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose by Francis A. Allen

The Meaning Of Equality In Law, Science, Math, And Morals: A Reply, Peter Westen

Michigan Law Review

I shall set forth my thesis in Part I, using the Declaration of Independence ("all men are created equal") to illustrate that the emptiness of equality inheres in its very meaning, and that the confusions of equality result from neglecting its meaning. In Part II, I respond to Professors Chemerinsky's and D' Amato's reasons for believing that equality has independent normative content of its own. In Part III, I respond to Professor Chemerinsky's separate reasons for believing that equality is rhetorically useful.

In Defense Of Equality: A Reply To Professor Westen, Erwin Chemerinsky

Michigan Law Review

Part I of this essay analyzes Professor Westen's arguments that the concept of equality is unnecessary. My contention is that Professor Westen never demonstrates that equality is meaningless; his arguments only prove the obvious, that equality by itself is insufficient. Part II argues that equality is a necessary principle: It is the only concept that tells us that different treatment of people does matter. Part III addresses Professor Westen's suggestion that equality is misleading and points out that none of his criticisms of the idea of equality are in any way inherent to that concept. Finally, Part IV demonstrates that …

Is Equality A Totally Empty Idea?, Anthony D'Amato

Michigan Law Review

Professor Peter Westen's essay asserting that the concept of equality has no substantive content whatsoever usefully brushes aside much of the equal-protection rhetoric that, as Westen carefully explains, appropriately belongs to substantive due process. However, his absolutist position is open to challenge. I would like to posit one hypothetical case that I used in my classes when I taught Constitutional Law that I think contradicts Professor Westen's thesis. If it does, then there will be other cases as well, and his position cannot stand as the logically tight construct that he repeatedly asserts that it is.

Desert And Deterrence: An Assessment Of The Moral Bases Of The Case For Capital Punishment, Richard O. Lempert

Michigan Law Review

The controversy over the death penalty has generated arguments of two types. The first argument appeals to moral intuitions; the second concerns deterrence. Although both types of argument speak to the morality of systems of capital punishment, the first debate has been dominated by moral philosophers and the second by empirical social scientists. For convenience I shall at times refer to the approach of the moral philosophers as the moral case for (or against) capital punishment or as the argument from morality.

Private Standing And Public Values, Michael Boudin

Michigan Law Review

A Review of Legal Identity: The Coming of Age of Public Law by Joseph Vining

Law, Legitimacy, And Symbols: An Expanded View Of Law And Society In Transition, Malcolm M. Feeley

Michigan Law Review

A Review of Law and Society in Transition: Toward Responsive Law by Philippe Nonet and Philip Selznick

Legal Principles And The Limits Of Law, Joseph Raz

Faculty Scholarship

Most people tend unreflectively to assume that laws belong to legal systems. "Most educated people," writes H. L. A. Hart, "have the idea that the laws in England form some sort of system, and that in France or the United States or Soviet Russia and, indeed, in almost every part of the world which is thought of as a separate 'country' there are legal systems which are broadly similar in structure in spite of important differences." This includes for most people the assumption that laws differ from non-legal rules and principles. There are, for example, moral rules and principles, social …

Theory And Application Of Roscoe Pound's Sociological Jurisprudence: Crime Prevention Or Control?, Louis H. Masotti, Michael A. Weinstein

University of Michigan Journal of Law Reform

The current interest in reforming the administration of justice has been triggered by a number of factors including the 1967 report of the President's Commission on Law Enforcement and the Administration of Justice and the treatment afforded arrestees during the civil disorders of the past few years. The nation is alarmed at the reported annual increases in crime, and this alarm was manifested in the 1968 presidential election when "law and order" became a major issue. Superficially the answer may seem clear: more effective enforcement of the law and, when necessary, more stringent laws. The critical issue, however, is a …

Shuman: Legal Positivism: Its Scope And Limitations, Edgar Bodenheimer

Michigan Law Review

A Review of Shuman: Legal Positivism: Its Scope and Limitations . By Samuel I. Shuman

Hurst: Law And Social Process In United States History, Robert S. Hunt

Michigan Law Review

A Review of Law and Social Process in United States History. By James Willard Hurst.

John Dewey--A Philosophy Of Law For Democracy, Jay W. Murphy

Vanderbilt Law Review

On what bases can a philosophy of law be founded which is equal to the task of the democratization of man in the world today? The purpose of this article is to present some suggestions concerning the fuller use of John Dewey's philosophy in this important regard. In addition to an examination of Dewey's theory of justice, it will be suggested that the richness of Dewey's thought and the variety of its uses in legal scholarship and legal education have yet to be felt.

The Pure Theory Of Law, Reginald Parker

Vanderbilt Law Review

There is hardly a theory of law about which there exists so much confusion in the minds of so many scholars as about Hans Kelsen's theory, which is commonly known under the name "Pure Theory of Law." If, for instance, a scholar of the stature and standing of Professor Northrop maintains that Kelsen locates the basic norm of the Austrian Constitution of 1920 "in the earliest Constitution of 1867,"'then it seems that there is still room, indeed an intellectual demand, for a brief and simple exposition of Kelsen's theory. We shall attempt it in the following article not without avoiding …