Law and Philosophy Commons^™

The Morality Of Evolutionarily Self-Interested Rescues, Bailey Kuklin

Faculty Scholarship

No abstract provided.

The Problem Of Authority: Revisiting The Service Conception, Joseph Raz

Faculty Scholarship

The problem I have in mind is the problem of the possible justification of subjecting one's will to that of another, and of the normative standing of demands to do so. The account of authority that I offered, many years ago, under the title of the service conception of authority, addressed this issue, and assumed that all other problems regarding authority are subsumed under it. Many found the account implausible. It is thin, relying on very few ideas. It may well appear to be too thin, and to depart too far from many of the ideas that have gained currency …

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 …

Under A Critical Race Theory Lens -- Brown V. Board Of Education: A Civil Rights Milestone And Its Troubled Legacy, Carlo A. Pedrioli

Faculty Scholarship

This critical book review argues that James T. Patterson’s narrative in, "Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy," is a mostly balanced historical reflection. Here, the term balanced will refer to giving consideration to both the negative and positive aspects of the phenomenon in question. To advance its thesis, the book review initially offers an overview of Patterson’s historical narrative and evaluation of the Brown legacy. Then the book review analyzes Patterson’s conclusions through a Critical Race Theory lens. Given the focus of Critical Race Theory on race and the law, especially on how …

The Myth Of Instrumental Rationality, Joseph Raz

Faculty Scholarship

My main aim is to explain the normative character of the phenomena that are commonly discussed when theoretical writers discuss instrumental rationality and instrumental reasons. The discussion will assume that there are forms of practical normativity, of practical reasons, which are not instrumental in nature. The question central to the inquiry is what, if any, normative difference does adopting or having an end make? For example, are there instrumental reasons and, if there are, how do they relate to having ends? Are instrumental reasons distinctive kinds of reasons, whose normativity differs in its underlying rationale from that of, say, moral …

Evolution, Politics And Law, Bailey Kuklin

Faculty Scholarship

No abstract provided.

A Key Influence On The Doctrine Of Actual Malice: Justice William Brennan's Judicial Philosophy At Work In Changing The Law Of Seditious Libel, Carlo A. Pedrioli

Faculty Scholarship

In light of the historical change in the law of seditious libel that New York Times v. Sullivan (1964) prompted and the need for further exploration of the human factors behind the case, this article gives attention to William Brennan’s judicial philosophy at work in the case. The article defines judicial philosophy as a system of guiding principles upon which a judge calls in the process of legal decision-making. Specifically, the article explains how, through Times v. Sullivan, Brennan’s instrumentalist judicial philosophy had an important influence on changing the course of legal protection for criticism of the government in the …

Personal Practical Conflicts, Joseph Raz

Faculty Scholarship

This preliminary reflection about practical conflicts confronting single agents does little to solve the problems conflicts create. Rather, it attempts to explain what conflicts are and what questions they raise. I suggest that we have two distinct notions of single-agent conflicts reflecting two distinct theoretical questions. The first concerns the possibility of there being a right action in conflict situations. It is the question of whether and, if so, how reasons deriving from different concerns or affecting different people can be of comparable strengths. The second concerns a sense that there is something unfortunate about conflicts and that when facing …

Collective Guilt And Collective Punishment, George P. Fletcher

Faculty Scholarship

Attitudes toward collective guilt in the Middle East require us to take a closer look at guilt in the Bible. It turns out the text of Genesis is conflicted. Some passages support a theory of guilt linked with the inevitability of cleansing and punishment; other passages appear to treat guilt as a psychological state that might be cured by a confession of sins. The tension is important today in trying to understand whether the collective guilt of nations should also entail collective punishment.

From Rethinking To Internationalizing Criminal Law, George P. Fletcher

Faculty Scholarship

Writing Rethinking Criminal Law ("Rethinking") was a gamble. No one had ever written a serious book on comparative criminal law – in English or in any other language. No one had ever addressed English-speaking readers with the argument that some other system of legal thought – espoused by a nation defeated in a major war just thirty years before – had a superior literature on criminal law and a more refined way of thinking about the structure of criminal offenses. No one had tried to present the system of criminal law as though it were a species of …

The Role Of Well-Being, Joseph Raz

Faculty Scholarship

"Well-being" signifies the good life, the life which is good for the person whose life it is. I have argued that well-being consists in a wholehearted and successful pursuit of valuable relationships and goals. This view, a little modified, is defended , but the main aim of the article is to consider the role of well-being in practical thought. In particular I will examine a suggestion which says that when we care about people, and when we ought to care about people, what we do, or ought to, care about is their well-being. The suggestion is indifferent to who cares …

Incorporation By Law, Joseph Raz

Faculty Scholarship

My purpose here is to examine the question of how the law can be incorporated within morality and how the existence of the law can impinge on our moral rights and duties, a question (or questions) which is a central aspect of the broad question of the relation between law and morality. My conclusions cast doubts on the incorporation thesis, that is, the view that moral principles can become part of the law of the land by incorporation.

Philosophy Of Contract Law, Jody S. Kraus

Faculty Scholarship

This article identifies a set of methodological commitments that help to explain the methodological differences between autonomy (deontic) and economic contract theories that have opposing views about the nature of law and legal theory. It begins with the discussion of the four methodological issues that divide contemporary autonomy and economic theories of contract. The dispute over the relative priority of the normative and explanatory enterprises of contract theory may simply reflect the different theoretical goals of deontic and economic theorists. These intellectual origins may explain not only the different priorities of deontic and economic contract theories, but their different conceptions …

Responsibility And Blame: Psychological And Legal Perspectives - Introduction, Lawrence M. Solan

Faculty Scholarship

No abstract provided.

Afterword: The Perils And Pleasure Of Activist Scholarship, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

About Morality And The Nature Of Law, Joseph Raz

Faculty Scholarship

In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

Book Review, Matthew D. Adler

Faculty Scholarship

No abstract provided.

The Force Of Ancient Manners: Federalist Politics And The Unitarian Controversy, Marc Arkin

Faculty Scholarship

No abstract provided.

The Fault Of Not Knowing, George P. Fletcher

Faculty Scholarship

Despite the outpouring of interest in tort and criminal theory over the last thirty years, not much progress has been made toward understanding the basic concepts for analyzing liability. Common law theorists of torts and criminal law tend to accept the conventional distinction between objective and subjective standards and the view that objective negligence is not really fault in the way that subjective negligence is. The author's view is that this distinction between objective and subjective standards is misunderstood and that, in fact, so-called objective negligence is a test of fault or culpability in the same way that subjective standards …

The Storrs Lectures: Liberals And Romantics At War: The Problem Of Collective Guilt, George P. Fletcher

Faculty Scholarship

Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms – none of this appealed to us anymore. "I hate war and so does Eleanor," opined FDR in the oft-repeated lyrics of Pete Seeger. War became a subject for ironic disdain. As Tom Lehrer caught the mood of the 1960s: "We only want the world to know that …

Dna: Lessons From The Past - Problems For The Future - Introduction, Bailey Kuklin, Margaret A. Berger

Faculty Scholarship

No abstract provided.

The Justification For Protecting Reasonable Expectations, Bailey Kuklin

Faculty Scholarship

No abstract provided.

The Methodological Commitments Of Contemporary Contract Theory, Jody S. Kraus

Faculty Scholarship

Autonomy and economic theories of contract seem to provide incompatible accounts of contract law. In this Chapter, I argue that what appear to be first-order disagreements over particular contract doctrines are really implicit second-order disagreements reflecting the divergent methodological commitments of autonomy and economic theories. I argue that autonomy theories accord priority to the normative project of justifying existing contract doctrine, treat contract law as consisting in the plain meaning of doctrine, require contract theory to explain the distinctive character of contract law, and take the ex post perspective in adjudication. In contrast, economic theories accord priority to the positive …

Reasoning With Rules, Joseph Raz

Faculty Scholarship

What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that reason is the same in all domains. According to them, only the contents of the law differentiate it from …

The Liberal Commons, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline – there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led to the …

You Should Have Known Better, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Introduction: Fifteenth Anniversary Of The Edward V. Sparer Public Interest Law Fellowship Program, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

On The Socratic Maxim, Joseph Raz

Faculty Scholarship

Many years ago John Finnis and I became interested in the Socratic view that it is better to suffer wrong than to do it. My interest was triggered by Anselm Müller's lecture on the subject given at Balliol at that time. Finnis discussed the issue in his Fundamentals of Ethics, where Müller's influence on him is acknowledged. At the time John Finnis and I debated the maxim and had a lengthy correspondence about it, but we did not convince each other. Now when I return to the issue, I can no longer remember the position I then took, except …

Religion And The Public Defender, Sadiq Reza

Faculty Scholarship

This Essay will argue that the public defender, or any other attorney appointed by the court to defend adults or juveniles charged with criminal offenses, should not undertake, or fail to undertake, any action to the legal detriment of a client on the basis of a conflict the attorney perceives between religious and professional imperatives, except in the rare case of imminent death or serious bodily harm to another. This argument rests on the following four premises: (1) the public defender occupies a unique position in our legal system, and options that may be available to lawyers who serve private …