Law and Philosophy Commons^™

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Shots Fired, Shots Refused: Scientific, Ethical & Legal Challenges Surrounding The U.S. Military's Covid-19 Vaccine Mandate, Shawn Mckelvy, L. William Uhl, Armand Balboni

St. Mary's Law Journal

The COVID-19 pandemic provided uncertain and challenging circumstances under which to lead a nation and the military that protects it. Those in charge and in command faced unique challenges—scientific, ethical, and legal—at our various levels of government to both keep people safe while keeping government and society functioning. While there were many successes to celebrate, there are also many criticisms for how this “whole-of-government approach” may have degraded some of our most cherished liberties along the way. The authors focus on the U.S. military’s vaccine mandate and propose military leaders may have failed to fully consider the evolving science, weigh …

Of Another Mind: Ai And The Attachment Of Human Ethical Obligations, Katherine B. Forrest

Fordham Law Review

We are entering a new world. A world in which we humans will be confronted with our intellectual limitations as we watch the evolution of artificial intelligence (AI) that we have created meet and exceed our capabilities. I have a few predictions about this—based first on how technology changes occur, with a layer of how human nature reacts to those changes.

My first prediction is that we may not initially recognize AI’s actual capabilities. We will find ways of describing what AI can do as somehow mimicry—the advances of a stochastic parrot, perhaps; we will not want to recognize our …

If We Could Talk To The Animals, How Should We Discuss Their Legal Rights?, Andrew W. Torrance, Bill Tomlinson

Fordham Law Review

The intricate tapestry of animal communication has long fascinated humanity, with the sophisticated linguistics of cetaceans holding a special place of intrigue due to the cetaceans’ significant brain size and apparent intelligence. This Essay explores the legal implications of the recent advancements in artificial intelligence (AI), specifically machine learning and neural networks, that have made significant strides in deciphering sperm whale (Physeter macrocephalus) communication. We view the ability of a being to communicate as one—but not the only—potential pathway to qualify for legal rights. As such, we investigate the possibility that the ability to communicate should trigger legal …

Slaughtering Slaughter-House: An Assessment Of 14th Amendment Privileges Or Immunities Jurisprudence, Caleb Webb

Senior Honors Theses

In 1872, the Supreme Court decided the Slaughter-House Cases, which applied a narrow interpretation of the Privileges or Immunities Clause of the 14^th Amendment that effectually eroded the clause from the Constitution. Following Slaughter-House, the Supreme Court compensated by utilizing elastic interpretations of the Due Process Clause in its substantive due process jurisprudence to cover the rights that would have otherwise been protected by the Privileges or Immunities Clause. In more recent years, the Court has heard arguments favoring alternative interpretations of the Privileges or Immunities Clause but has yet to evaluate them thoroughly. By applying the …

Spectre Of Justice: Russian Reform In The Courtrooms Of Dostoevsky And Tolstoy, Abby Moore

Senior Theses

The Great Reforms of Alexander II are regarded as transformative policies in the history of Tsarist Russia, drastically changing the empire’s social and political fabric. The judicial reforms of 1864 in particular addressed longstanding issues within the existing criminal justice system, yet they also liberalized the institution at large. Following in the West’s footsteps, the reforms introduced an unprecedented level of democracy into Russia’s courtroom. Among the critics of these changes were renowned authors Fyodor Dostoevsky and Leo Tolstoy, both of whom used the realm of fiction to explore their respective concerns with reformed Russian jurisprudence. Both authors bring distinct …

A Denial Of Personhood: Why Hate Crime Legislation Is Necessary To Assure Proportionality In Punishment, Clare Godfryd

JCLC Online

The term “hate crime” entered the mainstream in the United States during the 1980s, when advocates began to track incidents of bias-motivated violence. Since then, hate crimes have continued to garner significant attention. Advocates and legislators have traditionally justified hate crime law under the “expressive theory,” the idea that the purpose of such laws is to condemn prejudice and express messages of tolerance and equality.

In this Comment, I offer a distinct justification for hate crime legislation. Specifically, I argue that, when a perpetrator targets a victim because of perceived immutable characteristics, the hate crime offender denies the victim’s agency …

Looking And Seeing, Nicolas Cornell

Book Chapters

On November 6, 1938, Charles T. Dashiell, Jr, was driving south through Maryland. Around 5.30 or 6, Dashiell picked up two 19-year- old hitchhikers, J. Reginald Moore and Reginald Porter. Moore and Porter had been dropped off by Moore’s older brother and were now seeking to rejoin him several miles further on. The two boys got into Dashiell’s one-seat coup, with Moore sitting in the middle and Porter sitting on the right. It was a clear day, and the road was dry. Dashiell’s car lights were turned on and in good working condition.

Throwing Tomato Soup At A Van Gogh: How Climate Activists Leveraged Legal Theory, Criminal Law, And Moral Outrage To Conduct A Radical Protest Campaign In The World's Most Famous Museums, Joe Udell

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Legal Realists On Law And Literature, Dan Priel

All Papers

This encyclopedia entry considers the legal realists’ neglected contribution to law and literature. Starting with Cardozo’s essay ‘law and literature’ on the importance of judicial style, it then considers the contributions of the legal realists to the topic, focusing especially on Karl Llewellyn and Jerome Frank. Cardozo and Frank—both judges who were interested in making sure they effectively conveyed their ideas—focused on the style a judge should adopt. By contrast, Llewellyn’s more sociological perspective was concerned with how different periods (as well as different jurisdictions) were dominated by different judicial styles. However, in both cases the question of judicial style …

Shadows Or Forgeries? Explaining Legal Normativity, Alma Diamond

Fellow, Adjunct, Lecturer, and Research Scholar Works

Legal norms serve as practical standards for individuals and officials. While this ‘normative aspect’ of law is widely acknowledged, its significance for theories of law remains contested. In this paper, I examine three views on the matter. First, that we should explain legal norms as reason-giving. Second, that we should explain legal discourse as being about reasons for action. Third, that we should explain law as capable of being reason-giving. I survey some challenges associated with each of these views. What they have in common is an implicit assumption about the form that normative explanation must take: that it must …

Corpus Linguistics And The Original Public Meaning Of The Sixteenth Amendment, Thomas R. Lee, Lawrence B. Solum, James C. Phillips, Jesse A. Egbert

Faculty Scholarship

Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes, from whatever source derived” under the original meaning of the Sixteenth Amendment. Moore is widely viewed as the most important tax case to reach the United States Supreme Court in decades. It is also an opportunity for the Court to refine its theory and method of finding original meaning.

We focus here on the original public meaning of the Sixteenth Amendment—the ordinary, common meaning attributed to its text by the general public in 1913. So far, the …

The Problem Of Extravagant Inferences, Cass Sunstein

Georgia Law Review

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a …

Tackling Vulnerabilities Through Corporate Duties, Jingchen Zhao

Catholic University Law Review

In this article, and drawing on the work of Fineman and others, we use a vulnerability lens as a device to emphasize the protection that could be offered to vulnerable parties in corporations through directors’ duties. By situating corporations in the vulnerability paradigm, we will discuss the limitations of formal equality and clarify the role played by corporate law. The increasingly blurred distinction between private law and public law will be discussed to rationalize the protection of the vulnerable through collective responsibility. Vulnerability theory mediates conflicts between calls for “regulatory state policies” and “individual responsibility” to supervise and monitor corporate …

The Red Pill: Critical Race Theory, Ostrich Law, And The 14th Amendment Right To Free And Equal Thought And Dignity, Kindaka J. Sanders

St. Mary's Law Journal

No abstract provided.

“Zealous” Professional Ethics: The Transcendence Of Natural Law, Legal Positivism, And The Ethical Stage In The U.S. Legal Ethics System And The Moral Dilemma That Surround Zealous Representation, Sudarsanan Sivakumar, Marshall Maina

St. Mary's Journal on Legal Malpractice & Ethics

The zealous pursuit of law has its own ideals and dogma that sets it apart from the other rules in the Model Rules of Professional Conduct. Decades after many enactments and amendments, there still exists many debates considering its operation as to whether an attorney owes a duty toward society over the representation of the client. This is a Delphi method that has made even the best seasoned ‘Justiciar’ and ‘Legislator’ unable to find the proper guidelines to implement upon the Legal Superstructure. The Model Rules of Professional Conduct attempt to clear the fog around the existing principle of Zealous …

No Balancing For Anti-Constitutional Government Conduct, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Notes, Papers, And Manuscripts - Robert Taylor/Bruce Ledewitz Collection, Bruce Ledewitz, Robert Taylor

Ledewitz Papers

A collection of notes, articles, manuscripts produced by Robert Taylor and Bruce Ledewitz during their decade-long collaboration.

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Deconstructing Concepts About Nature: An Alternative Perspective For Ecofeminism Based On The Rights Of Nature, Leslie Terrones

PEEL Student Scholarship

No abstract provided.

Time And Retribution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Time is missing from discussions on the theory of retribution. A colossal body of scholarship has been devoted to exploring the theory of retribution, or 'just deserts," but much less has attempted to translate this theory into practice, explaining how to determine an actual offender's desert in real life. The limited scholarship on this topic touches on who might best assess an offender's desert. For example, should a judge, a juror, or the public itself be making these desert decisions? But there is also a temporal aspect to this decision making that has thus far largely eluded exploration: When should …

Non-State Actors For Profit: Revisiting Transnational Corporations' Personhood And Responsibility Under International Law, Katayoon Beshkardana, Faraz Shahlaei

Northwestern Journal of International Law & Business

The growing impact of Transnational Corporations (TCs) on international trade, investment, and human rights raises the question of international corporate responsibility. For international responsibility, TCs must be recognized as subjects of international law with legal personality. Apart from states as the primary subjects of international law, such status has been granted to inter-governmental organizations (IGOs). The factors that contributed to the IGOs’ recognition as international law subjects seem to be present for TCs today. While the International Court of Justice granted such legal status to IGOs, for TCs, the best path to recognition would be to establish a global authority …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents