Law and Philosophy Commons^™

Four Futures Of Legal Automation, Frank A. Pasquale, Glyn Cashwell

Faculty Scholarship

Simple legal jobs (such as document coding) are prime candidates for legal automation. More complex tasks cannot be routinized. So far, the debate on the likely scope and intensity of legal automation has focused on the degree to which legal tasks are simple or complex. Just as important to the legal profession, however, is the degree of regulation or deregulation likely in the future.

Situations involving conflicting rights, unique fact patterns, and open-ended laws will remain excessively difficult to automate for an extended period of time. Deregulation, however, may effectively strip many persons of their rights, rendering once-hard cases simple. …

An Addendum In Light Of Recent Developments, Bruce Ledewitz

Ledewitz Papers

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

Beyond Edmunds: The State Constitutional Legacy Of Chief Justice Ronald D. Castille, Bruce Ledewitz

Ledewitz Papers

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

Constructing Autonomy, Bailey Kuklin

Faculty Scholarship

No abstract provided.

The Medical Cost Pandemic:Why Limiting Access To Cost-Effective Treatments Hurts The Global Poor, Govind Persad

Sturm College of Law: Faculty Scholarship

Medical innovation in developed countries like the U.S. leads to an ever-changing medical standard of care. This innovation frequently also brings rising costs. While these costs strain even the sizeable health care budgets of developed countries, imposing them on developing countries would be much more burdensome. Yet a variety of commentators and legal actors, such as the World Health OrganiZation and UNAIDS, have argued that the same standards of care must be provided worldwide, and have enforced mandates to that effect. Interpretations of the human rght to health as a tight to the "highest attainable standard of health" similarly advance …

Republicanism: Philosophical Aspects, Mortimer N.S. Sellers

All Faculty Scholarship

Republicanism is the doctrine that public power should always serve the common good of all those subject to its rule. This raises the question how to do so most effectively, either through particular policies or through constitutional structure (‘the republican form of government'). The republican philosophical tradition began with Plato and Aristotle, flowered in the writings of Marcus Tullius Cicero, and reappeared with the revival of learning in such authors as Niccolo Machiavelli, James Harrington, John Adams, and Immanuel Kant. More recently Philip Peuit, Jürgen Habermas, and others have returned to the republican conception of liberty as nondomination, and how …

Denying Death, Teneille R. Brown

Utah Law Faculty Scholarship

Terminal cancer patients are being kept in the dark about the purpose of their care. Several studies show that these patients undergo expensive and painful interventions because they are holding out hope for a cure, even when their physicians know that a cure is very unlikely. The current Medicare reimbursement system encourages this false hope by incentivizing physicians to medicate and operate on patients, rather than to talk about whether or why to do these things. Our culture also encourages this false hope by treating cancer as a war that must be won. As a result, patients are admitted to …

A Standard Of Global Justice, Steven R. Ratner

Book Chapters

This chapter presents the standard of justice that is used in this book to appraise international law. That standard is based on two core principles, or what the book calls pillars—the promotion of international and intrastate peace, on the one hand, and respect for the basic human rights of all individuals, on the other. The justice of international norms is determined by the extent to which they lead to a state of affairs involving peace and human rights, with some room for deontological considerations in limited situations. The chapter defends the choice of these two pillars. It elaborates on the …

Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun

Osgoode Legal Studies Research Paper Series

It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.
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Concept And Contract In The Future Of International Law, John Linarelli

Scholarly Works

This is an article written for a symposium on Joel Trachtman’s book, The Future of International Law. I first deal with the contractarian features of Trachtman’s approach to understanding international law. Using the tools of new institutional economics and constitutional economics, Trachtman seeks to describe the features of an international legal system. This is positive political theory or at least relates substantially to the methods of positive political theory. I explore a different approach, one connecting to normative political theory. In its ambitious sense, my approach would see international law as a form of moral argument, but in its modest …

Human Rights Thinking And The Laws Of War, David Luban

Georgetown Law Faculty Publications and Other Works

In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person…. The general principle of respect for human dignity is . . . the very raison d'être of international humanitarian law and human rights law.”

Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is …

Do Corporations Have Religious Beliefs?, Jason Iuliano

Indiana Law Journal

Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …

A Primer On Higher Education In The 21st Century: The University As A Whole And Contributions Made By Law Schools, Ronald Griffin

Journal Publications

Citizens live within their unit's belief systems and superstitions. Truth is derived from family narratives, stories spun by old friends, outbursts from neighbours, barbers, religious figures, and priests. Certainty and comfort come from living in these spaces. But there is a wider world out there with characters doing things that conflict with routine. Higher education illuminates this realm. Legal education predicts what authorities will do about their antics and, while this is a laudable undertaking in the abstract, legal education should do more. It should arm the next generation with tools to cope with cultural ruptures, social confusion, dislocations, avatars, …

Pluralism And Its Perils: Navigating The Tension Between Gay Rights And Religious Expression, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake.

The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the values of learning things undecided, while real, may be outweighed by lost opportunities for advancing principles that also foster …

Autonomy, Residence, And Return, David Lefkowitz

Philosophy Faculty Publications

This article argues that those unjustly displaced from a particular territory T cannot involuntarily lose their rights to reside there, or, as a consequence, their rights of return to it, even if they develop territorially grounded conceptions of the good where they now reside. The contrary position fails to accord the unjustly displaced the respect due to them in virtue of their personal autonomy. Facts commonly alleged to justify the supersession of rights of return to T only provide evidence that the unjustly displaced have abandoned their rights to reside there, or would do so if given a just opportunity …

Giving Up On Moral Truth Shall Set You Free: Walzer On Relativism, Criticism, And Toleration, David Lefkowitz

Philosophy Faculty Publications

Morality, Michael Walzer contends, is plural, subjective, and concrete, a multitude of moralities or moral ways of life created over time by the members of distinct historically situated communities. This entails that we must abandon the familiar notion of moral truth, according to which at least some claims of the form ‘it is wrong to ϕ’ are true in virtue of their tracking or reflecting objective and universal moral principles binding on all moral agents as such. Many of Walzer’s critics take this implication to constitute a reductio ad absurdum refutation of Walzer’s relativist meta-ethics. But what precisely do we …

Blame And The Criminal Law, David Lefkowitz

Philosophy Faculty Publications

Many retributivists appear to presume that the concept of blame that figures in their accounts of just punishment is the same one people employ in their interpersonal moral relationships. David Shoemaker contends that this presumption is mistaken. Moral blameworthiness, he maintains, tracks only the meaning of a person's action––his reasons for acting as he did––while criminal blameworthiness, which he equates with liability to punishment, tracks only the impermissibility of an agent's action. I contest the second of these two claims, and in doing so defend the retributivists’ presumption. First, I argue that the purpose of a criminal trial can be …

The Procedural Aspect Of The Rule Of Law: India As A Case Study For Distinguishing Concept From Conception, Karina T. Hwang

CMC Senior Theses

In this thesis, the concept of the procedural aspect of the Rule of Law will be distinguished from what I argue are conceptions that are falsely promulgated as concept. The different aspects of the Rule of Law—form, substance, and procedure— are helpful in making the distinction between concept and conception. Examining procedure within the Rule of Law is particularly important, and I define a broader set of requirements of the concept of the procedural aspect of the Rule of Law. This concept is applied to understand the Indian conception of the Rule of Law, a particularly interesting case that brings …

Beyond Max Weber: The Need For A Democratic (Not Aristocratic) Theory Of The Modern State, William J. Novak

Articles

We cannot wish (or think) away the modern state any more than the postwar generation could wish away atomic power. And we cannot ignore the state in our efforts to come to terms with modern economy and society any more than we can ignore equally difficult concepts like modern capitalism or modern law. Attempts to try to reckon with modernity in lieu of hard thinking about such abstract concepts will probably end up deploying some overdetermined and cartoonish causation of a mainly biographical or interest-group sort. Or, like libertarianism, neoliberalism, or other popular anti-statist credos, they will leave us with …

Time-Mindedness And Jurisprudence, David Luban

Georgetown Law Faculty Publications and Other Works

Analytic jurisprudence often strikes outsiders as a discipline unto itself, unconnected with the problems that other legal scholarship investigates. Gerald Postema, in the article to which this paper responds, traces this “unsociability” to two narrowing defects in the project of analytic jurisprudence: (1) from Austin on, it has concerned itself largely with the analysis of professional concepts, without connecting that analysis with other disciplines that study law, nor with the history of jurisprudence itself, nor with general philosophy; (2) analytic jurisprudence studies only time-­‐slice legal systems, rather than legal systems unfolding in history. He argues that a time-­‐slice legal system …

Irb Licensing, Philip A. Hamburger

Faculty Scholarship

This chapter examines conflicting norms in the government's licensing of speech and the press on “human-subjects research” through institutional review boards (IRBs). It begins by discussing licensing and why the prohibition of it is so fundamental and prroceeds by providing an overview of the structure of institutional review board licensing. It then highlights the unconstitutionality of IRB laws, arguing that the use of IRBs violates the principles of academic freedom. It asserts that licensing of speech or the press was a method of controlling the press employed by the Inquisition and the Star Chamber, and the First Amendment unequivocally barred …

The Limits Of Moral Argument: Reason And Conviction In Tadros' Philosophy Of Punishment (With Response By Victor Tadros), Eric Blumenson, Victor Tadros

Suffolk University Law School Faculty Works

For generations, philosophers of punishment have sought to revise or combine established theories of punishment in a way that could reconcile the utilitarian aims of punishment with the demands of deontological justice. Victor Tadros’ recent work addresses the same problem, but answers it with an entirely original theory of punishment based on the duties criminals acquire by committing their crimes. The unexpected appearance of a new rationale for punishment has already inspired a robust dialogue between Tadros and his critics on many of the individual claims that, linked together, comprise his argument. This critique focuses instead on Tadros’ theory as …

Jack Sammons As Therapist, Jospeh Vining

Articles

Jack Sammons is well known as a pioneer in making the practice of law a field of academic study and teaching. He is also an original and penetrating analyst of law as such. This essay comments on his recent work, especially his putting the way we understand law and the way we understand music side by side and drawing out the parallels between them. Many will find his work a revelation.

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 Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America, David Pozen

Faculty Scholarship

This essay reframes the debate over the "growing disjunction" between legal scholarship and legal practice. Law review articles continue to make the world a better place, the essay stipulates. But are judicial opinions becoming less useful to students and scholars? A rigorous analysis and concrete prescriptions follow.

Intention And Value, Joseph Raz

Faculty Scholarship

The paper sketches the role of reasons and intentions in leading to action with an intention, explaining the way possession of rational powers transforms the formation of intentions. Part One explains how when humans act with an intention they act in the belief that there is value in the action. Part Two explains the relative role of value and intention in “producing” the action, and relates their role to that of motivation.

Would You Choose To Be Happy? Tradeoffs Between Happiness And The Other Dimensions Of Life In A Large Population Survey, Matthew D. Adler, Paula Dolan, Georgios Kavetsos

Faculty Scholarship

A large literature documents the correlates and causes of subjective well-being, or happiness. But few studies have investigated whether people choose happiness. Is happiness all that people want from life, or are they willing to sacrifice it for other attributes, such as income and health? Tackling this question has largely been the preserve of philosophers. In this article, we find out just how much happiness matters to ordinary citizens. Our sample consists of nearly 13,000 members of the UK and US general populations. We ask them to choose between, and make judgments over, lives that are high (or low) in …

Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie

Faculty Scholarship

This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.

Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson

Cultural Encounters, Conflicts, and Resolutions

Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.

This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …

December 30, 2014: The Radical Religious Message Of A Charlie Brown Christmas, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Radical Religious Message of A Charlie Brown Christmas“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.