Law and Philosophy Commons^™

Collective Guilt And Collective Punishment, George P. Fletcher

Faculty Scholarship

Attitudes toward collective guilt in the Middle East require us to take a closer look at guilt in the Bible. It turns out the text of Genesis is conflicted. Some passages support a theory of guilt linked with the inevitability of cleansing and punishment; other passages appear to treat guilt as a psychological state that might be cured by a confession of sins. The tension is important today in trying to understand whether the collective guilt of nations should also entail collective punishment.

Torture, Marcy Strauss

NYLS Law Review

No abstract provided.

The Song Sparrow And The Child: Claims Of Science And Humanity, Joseph Vining

Books

For centuries public claims on behalf of science have been made about our nature and the nature of the world as a whole. Over the twentieth century such claims on behalf of science have grown deeper and stronger. More and more they are total claims, cosmological in the largest sense, and they have evoked opposition equally deep and strong.

There is the scientist in all of us. There is, too, the lawyer and law in all of us, which we realize the moment we serve as a witness or citizen juror. This book explores what the legal mind and ear …

Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber

Publications

Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and …

My Dinner At Langdell's, Pierre Schlag

Publications

This essay begins on one of those cold wet April Cambridge mornings. It was too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse - the laudanum was wearing off. Tonight would be dinner at Langdell's. It occurred to me that not everyone is invited to Langdell's for dinner - certainly not wayward law professors from the provinces. This was an extraordinary opportunity. Blackstone would be there. Duncan Kennedy perhaps. Certainly the early Llewellyn. I knocked on the door.

Nietzsche’S Place In Nineteenth Century German Philosophy, Michael S. Green

Faculty Publications

No abstract provided.

The Illusion Of Law: The Legitimating Schemas Of Modern Policy And Corporate Law, Ronald Chen, Jon Hanson

Michigan Law Review

This Article is about some of the schemas and scripts that form and define our lives. It is about the knowledge structures that shape how we view the world and how we understand the limitless information with which we are always confronted. This Article is also about the "evolution of ideas" underlying corporate law and all of modern policymaking. It is about the ways in which schemas and scripts have influenced how policy theorists, policymakers, lawyers, and many others (particularly in the West) understand and approach policymaking generally and corporate law specifically. It is about both the invisibility and blinding …

Satirical Legal Studies: From The Legists To The Lizard, Peter Goodrich

Michigan Law Review

In Part I, I expand on the distinction between the Horatian and the Menippean forms of satire and then suggest that a similarly bold division can be used to map satirical legal studies. In support of that argument, I use the example of the earliest surviving satirical legal poem within the Western tradition. My analysis of this exemplary satirical legal artifact delineates four principal modes of legal satire that will organize the ensuing discussion of more contemporary examples of the genre. In Part II, I will address the currently popular and yet somewhat novel mode of ad hominem or nominate …

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 …

Philosophy Of Contract Law, Jody S. Kraus

Faculty Scholarship

This article identifies a set of methodological commitments that help to explain the methodological differences between autonomy (deontic) and economic contract theories that have opposing views about the nature of law and legal theory. It begins with the discussion of the four methodological issues that divide contemporary autonomy and economic theories of contract. The dispute over the relative priority of the normative and explanatory enterprises of contract theory may simply reflect the different theoretical goals of deontic and economic theorists. These intellectual origins may explain not only the different priorities of deontic and economic contract theories, but their different conceptions …

Treaty Governance, Intellectual Property And Biodiversity, John Linarelli

Scholarly Works

When resources become valuable, various social and institutional pressures come to bear to enclose them in a property rights regime. Given the substantial progress of biotechnology and the life sciences, genetic resources found in biological diversity are experiencing such pressures. The question of how much commodification or commercialization of genetic resources is appropriate is of global concern; it affects the distribution of wealth in and among societies and countries. This article explores the emerging treaty law on intellectual property and biodiversity. It inquires What is biodiversity? and Why is biodiversity preservation important? It then focuses on the United Nations Framework …

Personal Practical Conflicts, Joseph Raz

Faculty Scholarship

This preliminary reflection about practical conflicts confronting single agents does little to solve the problems conflicts create. Rather, it attempts to explain what conflicts are and what questions they raise. I suggest that we have two distinct notions of single-agent conflicts reflecting two distinct theoretical questions. The first concerns the possibility of there being a right action in conflict situations. It is the question of whether and, if so, how reasons deriving from different concerns or affecting different people can be of comparable strengths. The second concerns a sense that there is something unfortunate about conflicts and that when facing …

Incorporation By Law, Joseph Raz

Faculty Scholarship

My purpose here is to examine the question of how the law can be incorporated within morality and how the existence of the law can impinge on our moral rights and duties, a question (or questions) which is a central aspect of the broad question of the relation between law and morality. My conclusions cast doubts on the incorporation thesis, that is, the view that moral principles can become part of the law of the land by incorporation.

The Role Of Well-Being, Joseph Raz

Faculty Scholarship

"Well-being" signifies the good life, the life which is good for the person whose life it is. I have argued that well-being consists in a wholehearted and successful pursuit of valuable relationships and goals. This view, a little modified, is defended , but the main aim of the article is to consider the role of well-being in practical thought. In particular I will examine a suggestion which says that when we care about people, and when we ought to care about people, what we do, or ought to, care about is their well-being. The suggestion is indifferent to who cares …

From Rethinking To Internationalizing Criminal Law, George P. Fletcher

Faculty Scholarship

Writing Rethinking Criminal Law ("Rethinking") was a gamble. No one had ever written a serious book on comparative criminal law – in English or in any other language. No one had ever addressed English-speaking readers with the argument that some other system of legal thought – espoused by a nation defeated in a major war just thirty years before – had a superior literature on criminal law and a more refined way of thinking about the structure of criminal offenses. No one had tried to present the system of criminal law as though it were a species of …

Nietzsche In Law's Cathedral: Beyond Reason And Postmodernism, John Linarelli

Scholarly Works

Nietzsche had very little to say about law and what he did say is fragmentary and sporadic. Nietzsche's philosophy, however, offers a basis for theorizing about law. I use Nietzsche's important works to interpret two major movements in legal thought. The first part of the paper examines how Nietzsche's philosophy augments our understanding of deontological theories about the law. Nietzsche produced a substantial ethical theory. The second part of the paper examines how Nietzsche's philosophy helps us to understand law and economics. Nietzsche had a great deal to say about the intellectual predecessor to law and economics, utilitarianism, and his …

Copyrighting Facts, Michael S. Green

Faculty Publications

No abstract provided.

To Finish The Work We Are In: Abraham Lincoln's Speeches, From Lawyer's Briefs To Moral Manifesto, Kenneth Anderson

Book Reviews

This essay from the Times Literary Supplement (23 May 2003) reviews books on Lincoln's speeches and writings, particularly the Second Inaugural Address. It examines the transition from the First Inaugural Address to the Second Inaugural Address, finally focusing on how Lincoln seeks to steer between moral relativism about the war - each side does as it sees right - and moral absolutism.

The New Leviathan, Dennis Patterson

Michigan Law Review

Reputation in any field is an elusive phenomenon: part notoriety, part honor, part fame, part critical assessment. Even in legal scholarship it has an uneven, unpredictable quality. It is hard to imagine a book by a law professor that has had more immediate impact on world leaders than Philip Bobbitt's The Shield of Achilles. Much of the national-security strategy devised by the U.S. administration after the September 11 attacks expresses ideas Bobbitt conceived long before; and from a different point on the political spectrum is the Archbishop of Canterbury, whose televised nationwide address in January explicitly took the book as …

The Unruliness Of Rules, Peter A. Alces

Michigan Law Review

Analytical jurisprudence depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory - indeed, before we can even know what those questions are - we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence (or lack thereof) between inclusive and exclusive positivism. That …

Meaning's Edge, Love's Priority, Patrick Mckinley Brennan

Michigan Law Review

The story is told of an American wending his way through the British Museum. Reaching the Rosetta Stone, he reached right over the railing, touched the scarred slab, and lamented: "It doesn't feel meaningful." Whereupon an old Briton was heard to mumble: "The poor American's got this old thing confused with the Blarney Stone." A bully presses his case, but meaning is much more modest. Powerless to insist upon itself, meaning lies in wait of discovery. What distinguishes the Rosetta Stone from other rocks of the same kind and size is that it was someone's - or rather a group's …

Meditating Comparisons, Or The Question Of Comparative Law, Igor Stramignoni

San Diego International Law Journal

Many today claim that, after WWII, the fall of the Berlin wall and, now, September 11, 2001, the changing nature of nation states, democracy, and the law can no longer be sensibly ignored. How can comparative law contribute to such an important debate? In what follows, it is argued that one way to contribute to the debate over the changing nature of nation states, democracy, and the law would be to engage in poetic comparisons of law's many domains. What, then, are poetic comparisons of law, and what do they invite us to do? Learning from Martin Heidegger's life-long advocacy …

Corporate Advertising's Democracy, Bruce Ledewitz

Ledewitz Papers

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

The Promise Of Democracy, Bruce Ledewitz

Ledewitz Papers

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

Responsibility And Blame: Psychological And Legal Perspectives - Introduction, Lawrence M. Solan

Faculty Scholarship

No abstract provided.

Holmes, Common Law Theory, And Judicial Restraint, 36 J. Marshall L. Rev. 457 (2003), Frederic R. Kellogg

UIC Law Review

No abstract provided.

Review Of Explaining The English Revolution: Hobbes And His Contemporaries, Donald J. Herzog

Reviews

The explosion of primary texts from seven- teenth-century England continues to trigger an explosion of scholarly treatments today. For good reason, too: Lots of the primary texts are amazing, and not just those tired old warhors- es, Hobbes's Leviathan and Locke's Second Treatise. As fun and challenging as the primary texts are, you are forgiven a touch of skepticism if you wonder just what the latest author has to add to our understanding. You might redouble your skepticism if you just glance at Mark Stephen Jendrysik's table of contents, offering chapters on Winstanley, Milton, Cromwell, Filmer, and Hobbes, and zeroing …

A New Era In Humane Education: How Troubling Youth Trends And A Call For Character Education Are Breathing New Life Into Efforts To Educate Our Youth About The Value Of All Life, Lydia S. Antoncic

Animal Law Review

The purpose of education is to create in a person the ability to look at the world for himself, to make his own decisions, to say to himself this is black or this is white, to decide for himself whether there is a God in heaven or not. To ask questions of the universe, and then to learn to live with those questions, is the way he achieves his own identity. But no society is really anxious to have that kind of person around. What societies really, ideally want is a citizenry which will simply obey the rules of society. …

Book Review, Mark C. Modak-Truran

Journal Articles

While Bauman provides persuasive rebuttals to many of the CLS criticisms of liberalism, contemporary liberalism suffers from some of the same shortcomings Bauman observes about CLS. For example, Bauman criticizes CLS for not having a conceptual foundation (an external standard of truth) to demystify the liberal legal consciousness claimed to be inherent in the law. Bauman also argues that contemporary liberal theorists, like John Rawls, avoid the “comprehensive metaphysical or ontological framework” (p.30), held to be incoherent by CLS. However, Bauman fails to realize that Rawls similarly lacks a conceptual foundation to justify his “political not metaphysical” form of political …

Adam, Eve, And Emma: On Criminal Responsibility And Moral Wisdom, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.