Law and Philosophy Commons^™

Revisiting Marcuse On Repressive Tolerance: A Twenty-First Century Retrospective, David Ingram

Philosophy: Faculty Publications and Other Works

Herbert Marcuse’s essay Repressive Tolerance (RP) has been praised by the Left and vilified by the Right for its alleged promotion of censorship targeting reactionary opinions and actions. I argue that this interpretation of the text is mistaken. According to my alternative reading of the text, RP should be understood as an exercise in provocation and irony aimed at defending civil disobedience and dissent. Marcuse’s defense of dissent, however, appeals to a critique of pure tolerance that exposes the unavoidably partisan practice of tolerance, which invariably favors the reigning undemocratic status quo. The choice whether to tolerate in a manner …

Can Human Rights Be Reconciled With Citizenship: Reconsidering Marx's Zur Judenfrage Today, David Ingram

Philosophy: Faculty Publications and Other Works

This essay critically re-examines Marx’s youthful analysis of the separation of church and state and his complex views about the function of rights in the modern state. I argue that Marx’s condemnation of Christian nationalism and endorsement of citizenship for Jews is consistent with his view that the modern, secular state cannot emancipate itself entirely from religiosity, as evidenced by the continuing legacy of nationalism and cultural identity politics today. Although Marx correctly follows Hegel in identifying modernity with a structural differentiation between civil society and state, I argue that he misunderstands the nature of this separation and, along with …

Civic Education And Democracy's Flaws, Robert L. Tsai

Faculty Scholarship

Today, liberalism and democracy are beset by competitors that seek to return power to religious traditionalists or partisans masquerading as civic republicans. In such an environment, can civic education do some good, and even help bridge our society’s deepening divides?

Seana Shiffrin has characteristically brought deep learning and penetrating insight to the project of civic education in a modern democracy. Against a “dominant” model of citizenship in which “citizens vote and hand off power to their representatives”— which she believes encourages the people to maintain an unhealthy distance from government— she proposes a richer account of political community in which …

No Balancing For Anti-Constitutional Government Conduct, Bruce Ledewitz

Ledewitz Papers

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

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

Seattle University Law Review

The information we gathered during 2021–2023 shows that critical faculty and other academic resources are present throughout most of U.S. legal academia. Counting only full-time faculty, our limited research identified 778 contacts in 200 schools equating to nearly four contacts on average per school. But no organized critical “core” had coalesced within legal academia or, more broadly, throughout higher education expressly dedicated to defending and advancing critical knowledge and its production up to now. And yet, as the 2021–2022 formation of the Critical (Legal) Collective (“CLC”) outlined below demonstrates, many academics sense or acknowledge the need for greater cohesion among …

The Theological Error Behind Post-Liberalism’S Bid For Political Power, Bruce Ledewitz

Ledewitz Papers

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

Why I Am No Longer A Jew, Bruce Ledewitz

Ledewitz Papers

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

An Alternative To The Independent State Legislature Doctrine, Bruce Ledewitz

Ledewitz Papers

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

The Openness Of Talmud, Bruce Ledewitz

Ledewitz Papers

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

The Made And The Made-Up, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law

Law Faculty Research Publications

Truth is an ethical relation. Facts, whether descriptions of the physical world or of historical events, are necessarily mediated by our frames of reference. This contingency opens a space for disagreement that cannot be adjudicated by an absolute standard of truth. For those seeking power or profit, the temptation to exploit this state of undecidability is strong. When many question the institutions that broker meaning – science, the professions, the media – rumors, misinformation, deliberate distortions and falsehoods all proliferate. In the digital age, the ‘made’ is swiftly supplanted by the made-up. The remedy for this predicament is not technological …

The Role Of Recognition In Kelsen's Account Of Legal Obligation And Political Duty, David Ingram

Philosophy: Faculty Publications and Other Works

Kelsen’s critique of absolute sovereignty famously appeals to a basic norm of international recognition. However, in his discussion of legal obligation, generally speaking, he notoriously rejects mutual recognition as having any normative consequence. I argue that this apparent contradiction in Kelsen's estimate regarding the normative force of recognition is resolved in his dynamic account of the democratic generation of law. Democracy is embedded within a modern political ethos that obligates legal subjects to recognize each other along four dimensions: as contractors whose mutually beneficial cooperation measures esteem by fair standards of contribution; as autonomous agents endowed with equal rights; as …

Dobbs Is Not A Religion Case, Bruce Ledewitz

Ledewitz Papers

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

The Future Of Secularism, Bruce Ledewitz

Ledewitz Papers

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

On Controlling The Supreme Court: Is There A Future For American Law?, Bruce Ledewitz

Ledewitz Papers

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

This Earthly Frame: The Making Of American Secularism, Bruce Ledewitz

Ledewitz Papers

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

Against The Wind: James Boyd White And The Struggle To Keep Law Alive, Todd M. Stafford

Publications

No abstract provided.

Why Secular Society Desperately Needs The Recognition Of Religious Holidays, Bruce Ledewitz

Ledewitz Papers

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

What Is "United" About The United States?, Gary S. Lawson

Faculty Scholarship

Jack Balkin’s The Cycles of Constitutional Time aims, among other things, to preserve and promote what Jack regards as “democracy and republicanism,” understood as “a joint enterprise by citizens and their representatives to pursue and promote the public good.” My question is whether and how this normative project is possible in a world full of perceptions of social, political, and moral phenomena akin to the white dress/blue dress internet controversy of 2015. Even if Madison had the better of Montesquieu in 1788 (and that is questionable), the United States has grown dramatically since the founding era, in a patchwork, and …

I Am Resigning From The Pro-Life Movement, Bruce Ledewitz

Ledewitz Papers

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

With Jews Under Attack, Here Is A Chance To Act, Bruce Ledewitz

Ledewitz Papers

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

The Limits Of Deliberation About The Public's Values, Mark Seidenfeld

Michigan Law Review

A Review of The Public's Law: Origins and Architecture of Progressive Democracy by Blake Emerson.

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Program: Senior Projects (Public)

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Book Review, Secular Surge: A New Fault Line In American Politics, Bruce Ledewitz

Ledewitz Papers

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

The Values Of The Administrative State: A Reply To Seidenfeld, Blake Emerson

Michigan Law Review Online

I appreciate the opportunity to continue the conversation on democracy in the administrative state that I hoped The Public’s Law would inspire. In his review, Mark Seidenfeld critiques some of the book’s legal reform proposals. He argues that I am too optimistic about the general public’s ability to participate in the administrative process, about administrators’ competence to reason about social values, and about courts’ capacity to police such reasoning.

The aspects of my argument Seidenfeld criticizes come at the conclusion of the book’s broader study of the intellectual and institutional history of the administrative state. This history is meant to …

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Saving Judicial Independence From The Nihilism Of Court-Packing, Bruce Ledewitz

Ledewitz Papers

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

Don’T Lock Trump Up, Just Because Mueller Said You Can, Bruce Ledewitz

Ledewitz Papers

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

The Supreme Court Will Preserve The Bladensburg Cross, But It Matters How, Bruce Ledewitz

Ledewitz Papers

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

What Has Gone Wrong And What Can We Do About It?, Bruce Ledewitz

Ledewitz Papers

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

What Is The Best Model For Investigating Presidential Wrongdoing Today?, Bruce Ledewitz

Ledewitz Papers

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