Law and Philosophy Commons^™

(How) Is Prison Philosophy Public?, Shannon Fyfe, Amy Mckiernan, Elizabeth Lanphier

Scholarly Articles

In this essay we reflect on our shared experiences participating in a prison philosophy program, to consider just how our philosophical activities inside prison, and our related work outside, were—or were not—“public.” Some may also wonder if all the activities we describe are instances of “philosophy.” We take it that they are, insofar as they all engage teaching or reflecting on philosophy, deploying philosophical skills (including critical thinking, writing, and argumentation), or rely on philosophical concepts, including from feminist and critical race theory and praxis. However, we also suggest ways in which this work highlights the need to further refine …

“You Keep Using That Word”: Why Privacy Doesn’T Mean What Lawyers Think, Joshua A.T. Fairfield

Scholarly Articles

This article explores how the need to define privacy has impeded our ability to protect it in law.

The meaning of “privacy” is notoriously hard to pin down. This article contends that the problem is not with the word “privacy,” but with the act of trying to pin it down. The problem lies with the act of definition itself and is particularly acute when the words in question have deep-seated and longstanding common-language meanings, such as liberty, freedom, dignity, and certainly privacy. If one wishes to determine what words like these actually mean to people, definition is the wrong tool …

John Stuart Mill’S Harm Principle And Free Speech: Expanding The Notion Of Harm, Melina Constantine Bell

Scholarly Articles

This article advocates employing John Stuart Mill’s harm principle to set the boundary for unregulated free speech, and his Greatest Happiness Principle to regulate speech outside that boundary because it threatens unconsented-to harm. Supplementing the harm principle with an offense principle is unnecessary and undesirable if our conception of harm integrates recent empirical evidence unavailable to Mill. For example, current research uncovers the tangible harms individuals suffer directly from bigoted speech, as well as the indirect harms generated by the systemic oppression and epistemic injustice that bigoted speech constructs and reinforces. Using Mill’s ethical framework with an updated notion of …

Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. Macdonnell

Scholarly Articles

Judicial honesty or judicial candor is the subject of significant scholarly attention, but it is not the focus of this Essay. Rather, the author's focus is on the importance that appearing honest has on the persuasive force of an opinion and the dangers associated with failing to achieve that goal. This distinction is not intended to suggest Justices should seek apparent honesty while not being actually honest. Rather, this Essay emphasizes that actually honest opinions must also be apparently honest. Thus, judicial candor is necessary to apparent honesty, but it is not always sufficient on its own.

To support the …

The Moral Weight Of Preferences: Death, Sex, And Dementia, Shannon Fyfe, Elizabeth Lanphier

Scholarly Articles

In "Cognitive Transformation, Dementia, and the Moral Weight of Advance Directives," Emily Walsh raises pertinent questions regarding the stability of preferences, and interests, across time, particularly in the setting of dementia diagnosis (Walsh 2020). Advance directive policy and practice rely on an at least somewhat coherent account of personal identity, and we largely agree with Walsh that dementia raises complex issues for philosophical accounts of personal identity.

Gamesmanship And Criminal Process, John D. King

Scholarly Articles

We first learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal litigation. Allegations of gamesmanship—the aggressive and strategic use of rules that violate some sense of decorum or culture yet remain within the formal rules of engagement—cut across both contexts. This Article examines what sports can teach us about gamesmanship in …

Book Review, Terje Einarsen & Joseph Rikhof, A Theory Of Punishable Participation In Universal Crimes (2018), Mark A. Drumbl, Lauren Hancock

Scholarly Articles

In A Theory of Punishable Participation in Universal Crimes, Terje Einarsen and Joseph Rikhof unpack concepts of liability for individual contributions to universal crimes. Universal crimes – namely genocide, crimes against humanity, war crimes, and acts of aggression – tend to occur when a state or another powerful organization (a non-state actor, for example) collectivizes and channels the involvement of many people to commit the crime. The people who execute the acts are rarely ever the people who coordinate them. This disjuncture renders participation difficult to define and punish – individual acts may elide conventional legal intelligibility. Consequently, only …

On Hostility And Hospitality: Othering Pierre Legrand, Russell A. Miller

Scholarly Articles

Pierre Legrand's return to the pages of the American Journal of Comparative Law after nearly twenty years is cause for reflection on the reasons for this prolific comparatist's absence from one of the discipline's leading scholarly fora. One reason is the widespread disdain aimed at Legrand as a result of his persistent, sharply critical, and often pointedly personal crusade against the discipline's accepted approaches and their most prominent practitioners. This is partly the nature of the article he publishes in this collection, which features a no-holds-bared, uncomplimentary assessment of the work of James Gordley. In this Article I argue that …

Tracking Hate Speech Acts As Incitement To Genocide In International Criminal Law, Shannon Fyfe

Scholarly Articles

In this article, I argue that we need a better understanding of the theoretical underpinnings of the current debates in international law surrounding hate speech and inchoate crimes. I construct a theoretical basis for speech acts as incitement to genocide, distinguishing these speech acts from speech as genocide and speech denying genocide by integrating international law with concepts drawn from speech act theory and moral philosophy. I use the case drawn on by many commentators in this area of international criminal law, the trial of media executives for the roles they played in the Rwandan genocide through public speech acts …

Process For The Dispossessed: Procedural Rights From Magna Carta To Modern International Law, Mark A. Drumbl

Scholarly Articles

Due process matters greatly to distinguished philosopher Larry May, who advocates for a vigourous assertion of procedural rights as constituting an international rule of law. He undertakes this ambitious, a la fois aspirational, task in Global Justice and Due Process.

Walk Along My Mind: Space, Mobility, And The Significance Of Place, Jill M. Fraley

Scholarly Articles

In America mobility is seen as a measure of success, especially for persons born in rural areas, who are assumed to want to “move on up” as soon as possible. This pressure toward both social and spatial mobility is especially strong when the birthplace is an oppressed region such as Appalachia. Ironically, while the rest of the world has disowned Appalachia, the residents of the mountains have repeatedly proclaimed the significance of cultural investment in land. This article approaches the concept of place, illuminating several variations on the theme, while particularly illustrating the strength of place claimed by Appalachia.

Reparations, Social Reconciliation, And The Significance Of Place: A Legal And Philosophical Examination Of Indigenous Cases In The United States And Their Global Implications, Jill M. Fraley

Scholarly Articles

During genocide, populations are frequently displaced from their homelands. In the process of reparations, displacement is often viewed as a problem of shelter, food, and safety. In this framework, land is treated as an economic commodity—any given piece of land is interchangeable with another or for money. This approach is a product of Enlightenment thinking, which emphasizes the rights of the individual over communal rights to land, and conceptualizes land and social identity as strongly separated. This Enlightenment framework of rights, and the accompanying de-emphasis of place, is particularly strong in the United States. Because American legal principles have played …

Gandhi And Justice, Raymond B. Marcin

Scholarly Articles

Mohandas K. Gandhi, the great and saintly Mahatma of India, once made a characteristic but nonetheless provocative statement about justice: “That action alone is just,” he wrote, “which does not harm either party to a dispute.” There have been instances in Western jurisprudence in which that Gandhian—essentially Eastern - understanding of justice sometimes surfaces. Several decades ago, Martin Luther King Jr., in a groundswell of Gandhian activism, raised that Gandhian understanding of justice to a position of near dominance in Western thought. It may be no coincidence that both King and Gandhi suffered the same fate for their troubles. Conventional …

Schopenhauer's Theory Of Justice, Raymond B. Marcin

Scholarly Articles

This Article first delves briefly into Schopenhauer's life story. Then Schopenhauer's place in the line of Western philosophers is examined, particularly his positioning with respect to Kant and Hegel. Then follows an inquiry into the metaphysical bases of Schopenhauer's theory of justice, the theory of justice proper, and a discussion of some of its implications for the human condition. Interspersed throughout are analyses of the relationships between Schopenhauer's thought and contemporary quantum physics on the one hand, and Eastern philosophical approaches and understandings on the other. Because Schopenhauer's theory of justice is an ontology, there is a need throughout much …

The City Of Babel: Ancient & Modern, Raymond B. Marcin

Scholarly Articles

No abstract provided.

Justice And Love, Raymond B. Marcin

Scholarly Articles

No abstract provided.