Law and Philosophy Commons^™

Dignity As Perception: Recognition Of The Human Individual And The Individual Animal In Legal Thought, Joseph Vining

Book Chapters

'To their murderers these wretched people were not individuals at all. They came in wholesale lots and were treated worse than animals.' This was Telford Taylor, beginning the presentation of the 'Medical Case' at the Nuremberg Trials after the Second World War. The 'Medical Case' was not about genocide or war or the conduct of war. It was about experimentation on human beings; and it was this trial that produced the 'Nuremberg Code', the first control of such treatment of human beings by one another. The word 'individual' came naturally to Taylor the lawyer as a starting point, and with …

The Creation Of Authority In A Sermon By Saint Augustine, James Boyd White

Book Chapters

My way of honoring Joe today will not be to describe or extol his achievements directly but to try to show something of what I have learned from him, particularly in the way I approach a new text and problem, in this case the creation of authority in one of Augustine's sermons.

The Filaments Of The Vicarious: Notes To The Authors Of This Book, Joseph Vining

Book Chapters

Forty years is the unit of work in focus here. You have or will have units of forty years of your own, a unit of work like this. I can best respond to your generosity with a look back at the course of this effort of mine and its internal and external connections over time, to illustrate and help us keep in mind the way we mutually influence each other in our thought and lives. Origins and influences can begin with a biology teacher in secondary school, J. C. Catt, for whom I wrote a long paper on a drop …

Law School As Liberal Education, Sherman J. Clark

Articles

The president of a liberal arts college, if asked why college is worthwhile, would be able to respond on several levels. He or she would certainly say something about the value of the degree as a credential to help students get a job or get into graduate school. In addition, he or she would likely emphasize the professional value of the skills and capacities developed through a liberal education, which can help students succeed at work or in graduate school. More deeply, however, we would expect that he or she would have something to say about the intrinsic value of …

Ethics And International Law: Integrating The Global Justice Project(S), Steven R. Ratner

Articles

Academic discourse on global justice is at an all-time high. Within ethics and international law, scholars are undertaking new inquiries into age-old questions of building a just world order. Ethics – political and moral philosophy – poses fundamental questions about responsibilities at the global level and produces a tightly reasoned set of frameworks regarding world order. International law, with its focus on legal norms and institutional arrangements, provides a path, as well as illuminates the obstacles, to implementing theories of the right or of the good. Yet despite the complementarity of these two projects, neither is drawing what it should …

Theorizing American Freedom, Anthony O'Rourke

Michigan Law Review

Some intellectual concepts once central to America's constitutional discourse are, for better and worse, no longer part of our political language. These concepts may be so alien to us that they would remain invisible without carefully reexamining the past to challenge the received narratives of America's constitutional development. Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our past that are no longer reflected in the Constitution's …

On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas

Michigan Law Review

The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources-recent laws from state legislatures and recent advances in moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral …

The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine

Articles

Dispute resolution may be viewed from the perspective of economics or negotiation or contract law or game theory or even military strategy. In this Article, I should like to consider employment dispute resolution in particular from the perspective of morality. I do not necessarily mean "morality" in any religious sense. By "morality" here I mean a concern about the inherent dignity and worth of every human being and the way each one should be treated by society. Some persons who best exemplify that attitude would style themselves secular humanists. Nonetheless, over the centuries religions across the globe have played a …

Cute Prickly Critter With Presbyopia, Don Herzog

Reviews

Ronald Dworkin's' latest, long-awaited, and most ambitious book is a puzzle. Truth in advertising first: despite the title, this isn't centrally a book about justice. It's a book about the realm of value-all of that realm. Dworkin is most interested here in morality, but really touches on all of it, as a matter of the application of the abstract argument and sometimes in black and white right on the page, from aesthetics to prudence to morality to politics to law to . . . . It's fun to read, also frustrating. It stretches out lazily in handling some issues but …

The Role Of Authority, Scott A. Hershovitz

Articles

The most influential account of authority – Joseph Raz's service conception – is an account of the role of authority, in that it is an account of its point or function. However, authority does not have a characteristic role to play, and even if it did, the ability to play a role is not, by itself, sufficient to establish authority. The aim of this essay is to shift our focus from roles that authority plays to roles that people play – which we can also call roles of authority – such as chef, teacher, and parent. To justify authority, we …

Separation Of Law And State, Talia Fisher

University of Michigan Journal of Law Reform

In the framework of the jurisprudential literature, the law-state bond is assumed as a given. Points of dispute emerge only at more advanced stages of the discussion, with respect to such questions as the duty to obey state law or the appropriate extent of state intervention in social relations. This Article will be devoted to a reconsideration of the presupposition of the law-state link and to challenging the state's status vis-à-vis the law-both in its role as the producer of legal norms and its capacity as the arbiter of disputes.

The Article opens with a comparative elucidation of the Hobbesian …

Rawls And Reparations, Martin D. Carcieri

Michigan Journal of Race and Law

In the past two years, four related events have sharpened debates on race in the U.S.: President Obama's election, the nomination of Judge Sonia Sotomayor to the Supreme Court, that Court's ruling in Ricci v. DeStefano, and the arrest of Obama's friend, Harvard professor Henry Gates. The President has spoken of a "teaching moment" arising from these events. Moreover, his writings, speeches and lawmaking efforts illustrate the contractual nature of Obama's thinking. The President (and all concerned citizens) should thus find useful an analysis of racial policy and justice in light of the work of John Rauls. Rawls may …

Visionary Pragmatism And The Value Of Privacy In The Twenty-First Century, Danielle Keats Citron, Leslie Meltzer Henry

Michigan Law Review

Part I of our Review discusses the central premises of Understanding Privacy, with particular attention paid to Solove's pragmatic methodology and his taxonomy of privacy. We introduce his pluralistic approach to conceptualizing privacy, which urges decision makers to assess privacy problems in context, and we explore his view that meaningful choices about privacy depend on an appreciation of how privacy benefits society as a whole. We also describe how Solove's taxonomy aims to account for the variety of activities that threaten privacy. In Part II, we analyze the strengths of Solove's pragmatism by demonstrating its functionality and flexibility in …

The Consequence Of Human Differences, Jospeh Vining

Articles

This essay explores the ways in which the recognition of individual and person in the legal form of thought distinguishes it from forms of thought in evolutionary biology and mathematics that are put forward as means to a complete picture of the world. The essay observes that the legal form of thought is in fact deeply involved in our modern understanding of Nature itself.

The Creation Of Authority In A Sermon By St. Augustine, James Boyd White

Articles

My way of honoring Joe today will not be to describe or extol his achievements directly but to try to show something of what I have learned from him, particularly in the way I approach a new text and problem, in this case the creation of authority in one of Augustine's sermons.

Recognition Of Group Rights As Requisite To Substantive Equality Goals, Kathrina Szymborski

Michigan Law Review First Impressions

Courts, legislatures, and scholars are increasingly turning away from traditional Aristotelian thinking in favor of a substantive, pro-active approach to equality. Under the substantive approach, the identification and eradication of systematic discrimination replace an adherence to neutral principles. This Comment argues that while a substantive approach is the most effective way to bring about true equality, it will not succeed unless it centers on protecting group rights. State decision-makers and international human rights advocates must focus on group experiences in order to create societies where no one is favored based on immutable characteristics.

The Resilience Of Law, Joseph Vining

Book Chapters

One of the striking developments in academic law in the past half century is the reconception of law as one of the social sciences. The idea at work in this movement, as Joseph Vining says in this essay, is not that the law should use the findings of other disciplines for its own purposes and in its own way, but that in some deep way law itself - legal thinking, legal life - can and ought to proceed on the premises of social science, indeed of science itself. This is in one sense obviously impossible: a scientific rule is a …

Subordination And The Fortuity Of Our Circumstances, Sergio J. Campos

University of Michigan Journal of Law Reform

The antisubordination principle exists at the margins of equality law. This Article seeks to revive the antisubordination principle by taking a fresh look at its structure and underlying justification. First, the Article provides an account of the harm of subordination that focuses on one's position in society, rejecting the focus on groups popular in the existing antisubordination literature. Second, it argues for a theory of state obligation that goes beyond both the existing state action doctrine of the Equal Protection Clause and the failure to protect doctrine associated with Charles Black. The Article argues instead that the antisubordination principle mandates …

Taking Safety Seriously: Using Liberalism To Fight Pornography, John M. Kang

Michigan Journal of Gender & Law

Liberalism, as a jurisprudential principle, need not be pornography's indifferent observer or spineless sycophant; liberalism can be used to fight pornography. In this Article, the author proposes to illuminate what appears to be the most essential aspect of liberalism in its inviolable dedication to peace and safety. By drawing upon the work of the early liberals, the author argues that liberalism's most basic ethos is conceptually incompatible with pornography, as the latter celebrates an unjustified form of violence as its own end.

Human Identity: The Question Presented By Human-Animal Hybridization, Jospeh Vining

Other Publications

What makes each of us, as individuals, human to one another, or, more generally, what makes an individual creature human? We have not often had to ask the question because of the species line based on reproductive capacity and incapacity, although "degrees of humanness" were explored in the various eugenic programs of the last century. Now the biotechnological possibility of fusing human and other forms of life is presenting the question in a new and serious way. If the traditional biological means of defining species are no longer reliable, what other criteria might determine what is "human" and what is …

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Michigan Law Review

Championed on the Supreme Court by Justice Scalia and Justice Thomas and in academia most prominently by Professor Akhil Amar textualism has emerged within the past twenty years as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning, and in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This Article uses Professor …

Toward A Third-Wave Feminist Legal Theory: Young Women, Pornography And The Praxis Of Pleasure, Bridget J. Crawford

Michigan Journal of Gender & Law

Part I of this Article explores the general themes of third-wave feminist writings. The Article begins with an overview of third-wave feminist literature and its predominant concerns. These concerns are (1) dissatisfaction with earlier feminists; (2) the multiple nature of personal identity; (3) the joy of embracing traditional feminine appearance and attributes; (4) the centrality of sexual pleasure and sexual self-awareness; (5) the obstacles to economic empowerment; and (6) the social and cultural impact of media and technology. Textual analysis reveals third-wave feminists' reliance on non-legal tools for remedying gender inequality. Although third-wave feminists acknowledge the law's role in women's …

A Virtuous State Would Not Assign Correctional Housing Based On Ability To Pay, Bradley W. Moore

Michigan Law Review First Impressions

Pay-to-stay jails expose the moral tension between the dominant theories of punishment: retributivism and deterrence. A turn to a third major moral theory—virtue ethics—resolves this tension. According to virtue ethics, the moral worth of an action follows from both the character of the action and the disposition of the actor. Virtuous acts promote human flourishing— the central goal of life—when they are the right actions performed for the right reasons. The virtue ethics theory of punishment suggests that pay-to-stay jails conflict with the promotion of human flourishing. A virtuous state’s criminal justice system would not include fee-based incarceration because it …

Authority And Reality, Joseph Vining

Book Chapters

Imagination has been introduced as a term of art in discussion of the social and political world. Some years ago James Boyd White turned to it in The Legal Imagination, his monumental work on the foundations of secular law and legal practice. A prominent example of its use today is Charles Taylor's Modern Social Imaginaries, tracing changes in the common mind leading to what we now call modernity. The term can have a large scope and at the same time a rather definite meaning. "Imagination" is at the center of Mark Massa's comments on the contrarian position of the Catholic …

On The Relation Between Form And Substance In Law, Philip E. Soper

Articles

In this paper the author deals with some theoretical aspects of Robert Summers’ last book (Summers 2006). In particular, he concentrates on the hazy relationship between form and substance in Summers’ theory. In order to analyze some major difficulties entailed in the thesis that form and substance are different and independent things, the author discusses three specific questions: (1) the difference between form and substance; (2) the possibility of a form meant to be value-neutral; (3) how to distinguish a form-centered approach from a formalistic approach when one has to interpret a statute. This last question is dealt with through …

The Mystery Of The Individual In Modern Law, Jospeh Vining

Articles

To their murderers these wretched people were not individuals at all. They came in wholesale lots and were treated worse than animals. This was Telford Taylor, beginning the presentation of the "Medical Case" at the Nuremberg Trials. The "Medical Case" was not about genocide or war or the conduct of war. It was about experimentation on human beings, and it was this trial that produced the "Nuremberg Code," the first control of such treatment of human beings by one another, so surprisingly late in the history of modern scientific investigation, midtwentieth century, and so surprisingly absent everywhere before, despite the …

Review Of The Philosophy Of Positive Law: Foundations Of Jurisprudence, Howard Bromberg

Reviews

This meticulously researched book addresses a central question of analytical and philosophical jurisprudence: What is positive law? Throughout his analysis, James Bernard Murphy, author of The Moral Economy of Labor: Aristotelian Themes in Economic Theory (New Haven: Yale University Press, 1993), contrasts positive law with the other two kinds of law that constitute the triad of legal concepts - natural law and customary law. Although they are treated at length in this work, Murphy states in the preface that he intends to write a companion volume on natural law and customary law, "thus completing the foundation of philosophical jurisprudence" (p. …

Legal Commitments And Religious Commitments, Jospeh Vining

Articles

In his elegant and accessible new book, Law's Quandary, Steven Smith groups our various senses of what is real for us into ontological families: the mundane; the scientific, including mathematics; and the religious. These supply "lumberyards," as it were, for thought and discussion about the world and action in it. Law itself is not one of them. Those involved in law, as citizens or professionals practicing law or speaking for or about law, are presented in the book as looking out from law to the ontological resources available in the lumberyards he describes.

What Nobody Knows, John C. P. Goldberg

Michigan Law Review

By meditating on displays of cunning in literature, history, and current events, Don Herzog in his new book isolates and probes difficult puzzles concerning how to understand and evaluate human conduct. The point of the exercise is not to offer a system or framework for resolving these puzzles. Quite the opposite, Cunning aims to discomfit its academic audience in two ways. First, it sets out to show that some of the central dichotomies of modem thought-those between means and ends, reason and desire, self-interest and morality, fact and value, virtue and vice, knowledge and politics, authenticity and artifice, and appearance …

Science, Humanity, And Atrocity: A Lawyerly Examination, Steven D. Smith

Michigan Law Review

Joseph Vining's reflection on (as the subtitle indicates) the claims of science and humanity begins with a terse but disturbing recitation of these and similar scientific experiments conducted on human beings during the twentieth century in Manchuria, Nazi Germany, and Pol Pot's Cambodia. The incidents are conveyed through quotations, sometimes of the coldly clinical prose that the researchers themselves chose as most suitable for their purposes. These quotations are juxtaposed against others from an array of distinguished scientists and philosophers explaining the naturalistic cosmology that, in the view of these thinkers, modern science has given us: it is a stark, …