Law and Philosophy Commons^™

Aquinas In The Twenty-First Century: A Reconciliation With The Catholic Church’S Teaching On The Death Penalty, Diego G. T. Abele

Honors Theses

When the Catholic Church revised its paragraph in the Catechism that concerned the teaching on the death penalty, many believed that this seemed to contradict the Church’s traditional teaching on the death penalty, which has included the writings of thinkers like St. Thomas Aquinas. However, after applying principles of his natural law theory, this apparent contradiction goes away, and the full Catholic teaching on the death penalty comes to light. Several key theses of Thomist natural law will be described, addressing the metaphysical, epistemological, and ethical questions it seeks to answer. This will be the backbone of my paper as …

The Eunomics Of Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship

Originally developed by the legal theorist Lon L. Fuller, eunomics is the “study of good order and workable arrangements,” directed at understanding the structure, form, or ordering adopted by an area of law. Yet, unlike the ordinary analysis of institutional design, eunomics views the form adopted by an area of law as neither preordained nor wholly contingent. Instead, eunomics sees form as playing an important role in clarifying and developing the goals of an area through a means-ends interaction. This Article develops the central insights of Fuller’s eunomics project for intellectual property. Until now, most theoretical accounts of intellectual property …

Defending Rule-Of-Law Minimalism, Ashraf Ahmed

Faculty Scholarship

The rule of law is a political idea that counts only allies and no enemies. As a popular concept, the rule of law inspires broad rhetorical support. In the United States, for instance, liberals and conservatives alike invoke the “rule of law” as a normative lodestar in political conflicts. Liberals targeting the Trump administration cast their lawsuits as a defense of the rule of law. In parallel fashion, conservatives often charge creative readings of old statutes and ambitious administrative action as departures from the rule of law. It seems that any viable political venture must defend, advance, or at least …

Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

Criminal Law's Hidden Consensus, Steven Arrigg Koh

Faculty Scholarship

American criminal law is facing a crisis of meaning. On one hand, the “traditional school” invokes the archetype of the violent criminal—a murderer, rapist, or thief—who must be prosecuted and punished. On the other hand, the “critical school” invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law …

What Do Law Professors Believe About Law And The Legal Academy?, Eric H. Martinez, Kevin Tobia

Faculty Scholarship

Legal scholarship is replete with debates about competing legal theories: textualism or purposivism; formalism or realism; natural law or positivism; prison reform or abolition; universal or culturally specific human rights? Despite voluminous literature about these debates, great uncertainty remains about which views experts endorse. This Article presents the first dataset of American law professors’ views about legal theory. A study of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding debates.

Law professors also debate questions about the legal academy. These include descriptive questions: Which subjects (for example, constitutional law) and methods (for example, law …

The Mystery Of Law: A Critical Analysis Of H.L.A Hart’S The Concept Of Law, Stephen Mark Gray Ii

Honors Theses

This thesis explores the role of morality in law through a critical examination of the work of one of the most widely cited and renowned judicial scholars, H.L.A. Hart. His modified theory of positivism, which denotes that law and morality are separable and that legal rules may have any content, has had an enduring impact on the landscape of judicial thought in the last century. As Hart’s work has had an indelible hand in shaping analytical jurisprudence and as it exemplifies the antithesis of my argument, it will serve as a theoretical foil. From it, I hope to articulate my …

The Conceptions Of Self-Evidence In The Finnis Reconstruction Of Natural Law, Kevin P. Lee

St. Mary's Law Journal

Finnis claims that his theory proceeds from seven basic principles of practical reason that are self-evidently true. While much has been written about the claim of self-evidence, this article considers it in relation to the rigorous claims of logic and mathematics. It argues that when considered in this light, Finnis equivocates in his use of the concept of self-evidence between the realist Thomistic conception and a purely formal, modern symbolic conception. Given his respect for the modern positivist separation of fact and value, the realism of the Thomistic conception cannot be the foundation for the natural law as Finnis would …

5 1/2 Problems With Legal Positivism And Tax Law, Bret N. Bogenschneider

Pepperdine Law Review

This essay is a reply to the famous paper by John Gardner, Legal Positivism: 51⁄2 Myths, and the more recent paper by John Prebble, Kelsen, the Principle of Exclusion of Contradictions, and General Anti-Avoidance Rules. The reply is developed from the perspective of tax law where the respective issues are of major significance. The “51⁄2 problems” correspond to Gardner’s arguments and are as follows: (#1) Legal Positivism centers on determining whether a tax law is legally valid based on its source (e.g., the legislature enacted a valid law applying tax at the rate of 25%). However, in the tax context, …

R2h And The Prospects For Peace: An Essay On Sovereign Responsibilities, David Luban

Georgetown Law Faculty Publications and Other Works

This essay examines novel threats to peace – social and political threats as well as military and technological. It worries that familiar conceptions of state sovereignty cannot sustain a legal order capable of meeting those threats, not even if we understand sovereignty as responsibility to protect human rights. The essay tentatively proposes that recent efforts to reformulate state sovereignty as responsibility to humanity – ‘R2H’ for short – offer a better hope. Under this reformulation, states must take into account the interests of those outside their sovereign territory as well as those of the of their own people – in …

Picking And Choosing Text: Lessons For Statutory Interpretation From The Philosophy Of Language, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Textualists claim that they follow statutory text. This Article argues that, in practice, textualists often create meaning rather than find it. Deploying the analytics of linguistic philosophy, this Article takes a deep dive into textualist methodology. The philosophy of language reveals what legal scholarship has left submerged: The very choice of text can put the thumb on the scales of any interpretation. When one pulls a term out of a statute and isolates it from the rest of the text (what I call “isolationist” method), this decontextualization offers the opportunity for adding and subtracting meaning from the statute by “pragmatic …

A Theory Of Differential Punishment, Jack Boeglin, Zachary Shapiro

Faculty Publications

A puzzle has long pervaded the criminal law: why are two offenders who commit the same criminal act punished differently when one of them, due to circumstances beyond her control, causes more harm than the other? This tradition of result-based differential punishment the practice of varying offenders' punishment based on whether or not they cause specific "statutory harms"-has long stood as an intractable problem for scholars and jurists alike.

This Article proposes a solution to this long-standing conceptual problem. We begin by introducing a dichotomy between two broad and exhaustive categories of ideological justifications for punishing criminal offenders. The first …

The Psychology Of Conflict: Mediating In A Diverse World, Samantha Skabelund

Arbitration Law Review (2009 - Present)

No abstract provided.

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Brooklyn Law Review

The decade-and-a-half period when Earl Warren served as the fourteenth Chief Justice (1953–1969) was marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association, and religion, voting rights, and more. These decisions led to positive, fundamental changes in the lives of millions of less advantaged Americans who had been historically disfavored because of their race, nationality, gender, socioeconomic class, or political views. The legacy of the Warren Court is one of an institution committed to “a dedication in the law to the timeless ideals of ‘human dignity, individual rights, …

A Conceptual Disaster Zone Indeed: The Incoherence Of The State And The Need For State Action Doctrine(S), Brookes Brown

Maryland Law Review

No abstract provided.

The End Of Jurisprudence, Scott Hershovitz

Articles

For more than forty years, jurisprudence has been dominated by the HartDworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how the content of these rights and obligations is determined. Positivists say that their content is determined ultimately or exclusively by social facts. Anti-positivists say that moral facts must play a part in determining their content. In this Essay, I argue that the debate rests on a mistake. Our legal practices do not generate rights and obligations that are distinctively legal. At best, …

Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield

Articles

It is now a commonplace among historians that American criminal jurisprudence underwent a dramatic change something like two-thirds to three-quarters into the last century. Roughly, this development is understood as a shift (or drift) from a more-or-less pure consequentialism to a "mixed theory" wherein retributivism played a major-at times, dominant-role. As the new paradigm remains intact, now approaching a half-century, the development qualifies as a significant historical fact. The fact applies not only to the history of justification for punishment but also to conceptions of the underlying principle of (basis for) responsibility. The two are rightly distinguished: for many scholars …

The Improbability Of Positivism, Andrew Tutt

Pace Law Review

Ronald Dworkin’s contributions to legal philosophy have been subject to severe criticism in recent years. Other legal philosophers call his arguments “deflected or discredited,” laced with “philosophical confusions,” and “deeply embedded” mistakes. As Brian Leiter writes, “[t]he only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path . . . .”

This Article endeavors to show that, far from an effort beset with primitive errors, Dworkin’s challenge to legal positivism in the opening pages of his seminal work was neither misguided nor trivial. Rather, Dworkin’s …

Legal Ethics As A Moral Idea: A Theory Of Philosophical Legal Ethics Based On The Work Of Lon Fuller, Emanuel Raul Tucsa

LLM Theses

The legal philosophy of Lon Fuller, both in his idea of internal morality and in his theory of legal interpretation, is particularly useful for the purpose of making sense of the relationship between law and morality vis-à-vis the legal profession. Legal ethicists have recently developed accounts of legal ethics that are based on jurisprudential theories. These include the exclusive positivist theory of Tim Dare, the inclusive positivist approach of Bradley Wendel, and the substantive contextual judgment view of William Simon. Additionally, David Luban has proposed and evaluated an insightful interpretation of Fuller’s legal philosophy.

In this paper, I will argue …

Unfriendly Unilateralism, Monica Hakimi

Articles

This Article examines a category of conduct that I call “unfriendly unilateralism.” One state deprives another of a benefit (unfriendly) and, in some cases, strays from its own obligations (noncompliant), outside any structured international process (unilateral). Such conduct troubles many international lawyers because it looks more like the nastiness of power politics than like the order and stability of law. Worse, states can abuse the conduct to undercut the law. Nevertheless, international law tolerates unfriendly unilateralism for enforcement. A victim state may use unfriendly unilateralism against a scofflaw in order to restore the legal arrangement that existed before the breach. …

Fuller And Godel: Prophets Against The Evils Of Positivism: How The Natural Law Is Necessary To Provide Legal Meaning And Consistency, Henry James Garon

LLM Theses

Gödel showed that formal systems which discuss natural numbers cannot be complete or prove their own consistency. Incompleteness in this sense is limited to formal systems, and so is not applicable to law by it own terms.

Looking to the philosophy behind the Incompleteness Theorem, Gödel intended to show that positivism was a bankrupt world-view, and this resonates strongly with Lon Fuller. Fuller is analogous to Gödel in his condemnation of the positivist philosophy because he showed that a system of rules, by itself, was not capable of rendering judgments. A legal system is dependent upon an external morality, but …

Herbert Hart Elucidated, A. W. Brian Simpson

Michigan Law Review

There are a number of good biographies of judges, but very few of individual legal academics; indeed, so far as American legal academics are concerned, the only one of note that comes to mind is William Twining's life of Karl Llewellyn. Llewellyn was, of course, a major figure in the evolution of American law, and his unusual life was a further advantage for his biographer. In this biography, Nicola Lace has taken as her subject an English academic who also had an unusual career, one whose contribution was principally not to the evolution of the English legal system but to …

Credible Coercion, Oren Bar-Gill, Omri Ben-Shahar

Articles

The ideal of individual freedom and autonomy requires that society provide relief against coercion. In the law, this requirement is often translated into rules that operate "postcoercion" to undo the legal consequences of acts and promises extracted under duress. This Article argues that these ex post antiduress measures, rather than helping the coerced party, might in fact hurt her. When coercion is credible-when a credible threat to inflict an even worse outcome underlies the surrender of the coerced party-ex post relief will only induce the strong party to execute the threatened outcome ex ante, without offering the choice to surrender, …

Book Review: Postmodern Legal Movements: Law And Jurisprudence At Century's End By Gary Minda, Chris Sagers

Law Faculty Articles and Essays

Postmodem Legal Movements does two things. First, the bulk of the book provides an overview of American jurisprudence, from Christopher Columbus Langdell to the present. This overview is necessary because, in order to understand "postmodem forms of jurisprudence, we must first explore what came before postmodernism, that is, modernism" (p. 5). Second, the relatively short latter portion of the book presents an argument about the current state of American legal scholarship and its future. Minda's picture of contemporary legal thought is that of a paradigm shift in the making.

Postmodern Legal Movements will prove useful to those in search of …

Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens

Faculty Articles

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. …

Whose Loyalties?, Christina B. Whitman

Reviews

It is disconcerting to open a book subtitled An Essay on the Morality of Relationships and find that the two case studies that most interest the author are reciting the Pledge of Allegiance in public schools and the criminalization of flag burning. Although George Fletcher begins to make his case for giving moral priority to loyalties by referring to the impulse to save one's mother from a burning house (p. 12), he is more concerned with the ties that bind individuals to groups than with the ethics of relationships between individuals. The loyalties to which Fletcher would give "moral importance" …

"Liberalism's Dangerous Supplements": Medieval Ghosts Of International Law, Anthony Carty

Michigan Journal of International Law

A book review of From Apology to Utopia: The Structure of International Legal Argument by Martti Koskenniemi

Book Review Of Abortion And Divorce In Western Law, Joan M. Krauskopf

Journal of Legal Education

No abstract provided.

Hegelian Vanity, Common Law Humility: On Legal Theory, Its Expression And Its Criticism, Thomas D. Eisele

Faculty Articles and Other Publications

Commentary on Arthur Jacobson, Hegel's Legal Plenum, 10 Cardozo L. Rev. 877 (1989).

Law, Morality, And The Relations Of States, Michigan Law Review

Michigan Law Review

A Review of Law, Morality, and the Relations of States by Terry Nardin