Law and Philosophy Commons^™

Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport

Faculty Scholarship

Aristotle tells us, in his Nicomachean Ethics, that we become ethical by building good habits and we become unethical by building bad habits: “excellence of character results from habit, whence it has acquired its name (êthikê) by a slight modification of the word ethos (habit).” Excellence of character comes from following the right habits. Thinking of ethics as habit-forming may sound unusual to the modern mind, but not to Aristotle or the medieval thinkers who grew up in his long shadow. “Habit” in Greek is “ethos,” from which we get our modern word, “ethical.” In Latin, habits are moralis, which …

Jack Balkin's Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel

Faculty Scholarship

In Living Originalism, Jack Balkin reasons from two points of view — the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system. First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.” Second, he offers an individual approach to constitutional interpretation and construction, which he calls “framework originalism” or “the method of text and principle.” Reasoning from the systemic perspective, Balkin develops a compelling theory of the processes of constitutional change. Balkin may insufficiently appreciate, however, that public candor about — or even deep awareness of — …

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S 'Harm Principle,' And American Social Morality, Jedediah S. Britton-Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, we show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing …

The Virtue Of Judicial Statesmanship, Neil S. Siegel

Faculty Scholarship

Some of America's most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if under appreciated, dimension of judicial role.

I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself over the long run and with respect to …

Theorizing The Law/Politics Distinction: Neutral Principles, Affirmative Action, And The Enduring Legacy Of Paul Mishkin, Robert C. Post, Neil S. Siegel

Faculty Scholarship

Paul Mishkin was a colleague and a teacher to us, and we each esteem him as a master craftsman of the law: learned, wise, and far-sighted. To re-read his publications is to enter an astonishing world of clarity and integrity, a world in which no word is wasted and insight is deep and revealing.

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a …

Umpires At Bat: On Integration And Legitimation, Neil S. Siegel

Faculty Scholarship

During his confirmation hearings. Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. Judges and Justices are servants of the law, not the other way around, he said. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see an umpire.

In this inquiry, I identify some tensions between the …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Faculty Scholarship

Cass Sunstein has prominently and provocatively advocated a theory of judicial minimalism. He has claimed that minimalism provides both an accurate descriptive account of how the Supreme Court decides constitutional cases and a persuasive normative theory of how the Justices should exercise their power of judicial review. In fact, he has written that the October 2003 Term demonstrates the Court's commitment to judicial minimalism.

In this Article, I demonstrate a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and thus descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a …

In The Wake Of Thoreau: Four Morden Legal Philosophers And The Theory Of Nonviolent Civil Disobedience, Stephen R. Alton

Faculty Scholarship

This Article opens with a discussion of Thoreau's philosophy of civil disobedience and then examines the ideas of four modem legal philosophers, Joseph Raz, Kent Greenawalt, John Rawls, and Ronald Dworkin, on the subject. Next, the Article compares the respective thinking of all five men regarding the circumstances that would justify the use of civil disobedience. To facilitate the comparison as well as to make it more relevant to the reader, the Article examines five related contemporary illustrations involving situations in which the use of civil disobedience might arguably be morally justified. This Article concludes with some general thoughts on …