Law and Philosophy Commons^™

Original Intent: Does The Double Jeopardy Clause Apply To Incarceration?, Bruce Ledewitz

Ledewitz Papers

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

Internal Versus External Perspectives On Law: Toward Mediation, Douglas E. Litowitz

Florida State University Law Review

No abstract provided.

Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler

Michigan Law Review

The Bill of Rights, by means of open-ended terms such as "freedom of speech," "equal protection," or "due process," refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers' beliefs about that content; the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers' views. Bracketing this disagreement, however, …

Imperfect Death Penalty Not Acceptable, Bruce Ledewitz

Ledewitz Papers

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

Constitutionalizing Kwik-E-Mart, Bruce Ledewitz

Ledewitz Papers

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

Reply: Is Ignorance Of Fact An Excuse Only For The Virtuous?, Dan M. Kahan

Michigan Law Review

Professor Yeager's thoughtful response to my essay has convinced me that there is indeed a connection worth noting between the mistake of law doctrine and the mistake of fact doctrine. Yeager suggests that my position on mistake of law reduces to the view that someone who would be guilty of a "lesser wrong" were things as he perceived them to be may be punished for the "greater wrong" that he actually commits - a conception of mistake of fact that has provoked fierce denunciation from commentators. But I would in fact put things slightly differently: under both doctrines courts excuse …

Kahan On Mistakes, Daniel Yeager

Michigan Law Review

In Ignorance of Law Is an Excuse - but Only for the Virtuous, Professor Dan Kahan reconciles what I had thought was an irreconcilable body of law. To be sure, imposing order on whether and when mistakes of law should pass as responsibility-evading accounts of untoward actions is far from light work. Yet Kahan somehow pulls it off in just twenty-seven pages. In addition to acknowledging the importance of Professor Kahan's essay, I write here to point out if not correct what might have been two oversights in his view of the meaning and operation of mistakes. First, Kahan never …

Review Of What Are Freedoms For?, By John H. Garvey, Scott D. Pomfret

Michigan Law Review

In 1988, Jeffrey Kendall and Barbara Zeitler Kendall were married. Though Jeffrey was Catholic at the time and Barbara was Jewish, the couple agreed to raise their children in Barbara's faith. In 1991, Jeffrey joined Boston Church of Christ, a fundamentalist Christian church. The tenets of that faith include a belief that those who do not accept Jesus Christ are damned to Hell, where there will be "weeping and gnashing of teeth." Barbara's faith also underwent a change during the marriage: she became an Orthodox Jew. Citing irreconcilable differences, the Kendalls sought a divorce in November, 1994. Before their marriage …

Focus On Fairness, Efficiency, And The Law: Response. An Integration Of Equity And Efficiency, Richard O. Zerbe Jr.

Washington Law Review

Swygert and Yanes, in an article in this issue of the Washington Law Review, suggest a means to achieve this integration. In this Article, I first discuss the shortcomings of the approach suggested by Swygert and Yanes. Next, I suggest a more practical approach for integrating efficiency and equity that relies on benefit cost analysis. Finally, I consider some of the cases to which Swygert and Yanes apply their analysis. The fundamental shortcoming of the Swygert and Yanes approach is that it offers little for deciding practical cases. The authors combine two abstract and heuristic proposals and quite naturally …

Focus On Fairness, Efficiency, And The Law: Response. Efficiency And Equity: What Else Can Be Gained By Combining Coase And Rawls, Russell B. Korobkin, Thomas S. Ulen

Washington Law Review

Professors Swygert and Yanes seek to bring efficiency and equity to bear explicitly on the economic analysis of law by merging Rawlsean social contract philosophy into law and economics' basic premise, the Coase Theorem. We are in complete agreement with Swygert and Yanes that good legal policy should be concerned with both efficiency and equity, and we welcome their attempt to merge the two as a useful step in an important debate. Ultimately, though, we are unconvinced by their argument as it currently stands for two reasons. First, by focusing only on the way in which their approach might affect …

Focus On Fairness, Efficiency, And The Law. A Unified Theory Of Justice: The Integration Of Fairness Into Efficiency, Michael I. Swygert, Katherine Earle Yanes

Washington Law Review

An idea generally shared by both economists and philosophers is that a legal rule may either achieve distributive fairness or bring about an efficient outcome, but not both. In this Article, the authors argue that justice requires that legal rules consider both fairness and efficiency. The Article discusses the Coase Theorem, as a tool for determining the most efficient allocation of rights and duties, and the ideas of John Rawls for deriving a fair social contract. The authors then combine aspects of these two hypothetical consensus models into a unified theory of justice that considers the question of what agreements …

Establishing A Federal Constitutional Right To A Healthy Environment In Us And In Our Posterity, Bruce Ledewitz

Ledewitz Papers

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

"O Wind, Remind Him That I Have No Child": Infertility And Feminist Jurisprudence, Linda J. Lacey

Michigan Journal of Gender & Law

Feminists have constructed a "grand theory" of infertility and new reproductive techniques that has little to do with reality. Much of the discussion of reproductive technology is written in highly abstract, philosophical terms, rather than in the more experiential, narrative style which characterizes much of feminist jurisprudence. The infertile woman is generally voiceless and invisible in the telling of this story; when she does appear she is dismissed or criticized. This Article is an attempt to begin dialogue which incorporates her perspective into the discussion.

Review Of Political Theory For Mortals: Shades Of Justice, Images Of Death, Donald J. Herzog

Reviews

Daring to go where plenty of mortals have gone before him, John Seery sets out to explore death. The resulting volume, more episodic than sustained, is brash, even feverishly energetic, as though Seery is desperately cheery about his chosen topic. This book is by turns witty and irritating, its interesting conjectures and lines of argument intimately mixed up with what this stodgy reader saw as frivolous posturing. It's easy to lampoon Seery's prose style; in fact, all one needs to do is quote it. Socrates, we learn, is "a blowhard buffoon," or at least readers might reasonably see him that …

A Feminist Approach To Social Scientific Evidence: Foundations, Andrew E. Taslitz

Michigan Journal of Gender & Law

This Article addresses several aspects of a feminist approach to social scientific evidence, specifically, the interpretive nature of mental states, the feminist attitude toward juries, and the political nature of evidence law.

The Plausibility Of Legally Protecting Reasonable Expectations, Bailey Kuklin

Faculty Scholarship

No abstract provided.

From Odysseus To Capgras: Seven Episodes Of Personal Identity In Law, Robert Birmingham

Faculty Articles and Papers

No abstract provided.

Republican Legal Systems, Mortimer N.S. Sellers

Book Chapters

This paper discusses the basic attributes of republican legal systems. I will suggest that republican principles provide the only sound basis for a just legal order, and conclude that all laws in all jurisdictions deserve public deference only to the extent that they reflect republican structures of government and legislation.

Holmes And The Romantic Mind, Anne Dailey

Faculty Articles and Papers

No abstract provided.

Sex And The Social Order: The Selective Enforcement Of Colonial American Adultery Laws In The English Context, Carolyn B. Ramsey

Publications

No abstract provided.

Introduction: Symposium On Constitutional Elitism, Robert F. Nagel

Publications

No abstract provided.

Truth In Codification, George P. Fletcher

Faculty Scholarship

Some men think that the earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it?

These are the words of Thomas More as interpreted by Robert Bolt in his play A Man for All Seasons. More invokes the issue of scientific truth to question Parliament's authority to determine whether King Henry VIII should be recognized as the head of the Church of England. The point is well taken. When the issue is scientific …

Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond "Empty" Toleration To Toleration As Respect, Linda C. Mcclain

Faculty Scholarship

This Article considers discontent with liberal toleration as being both too empty, because it fails to secure respect and appreciation among citizens who tolerate each other, and too robust, because it precludes government from engaging in a formative project of helping citizens to live good, self-governing lives. To meet these criticisms, the Article advances a model of toleration as respect, as distinguished from a model of empty toleration, drawing on three rationales for toleration: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale. It defends toleration as respect against some common criticisms-emanating from feminist, civic republican, and liberal perfectionist …

The Origin, Development, And Regulation Of Norms, Richard H. Mcadams

Michigan Law Review

For decades, sociologists have employed the concept of social norms to explain how society shapes individual behavior. In recent years, economists and rational choice theorists in philosophy and political science have started to use individual behavior to explain the origin and function of norms. For many in this group, the focus of study is the interaction of law and norms, of formal and informal rules. Exemplified by Robert Ellickson's Order Without Law, this literature uses norms to develop more robust explanations of behavior and to predict more accurately the effect of legal rules. Norms turn out to matter in legal …

The Empty Circles Of Liberal Justification, Pierre Schlag

Michigan Law Review

American liberal thinkers are fascinated with the justification of the liberal state. It is this question of justification that inspires and organizes the work of such leading liberal thinkers as John Rawls, Ronald Dworkin, Frank Michelman, and Bruce Ackerman. The manifest import and prevalence of the question of justification among liberal thinkers makes it possible to speak here of a certain "practice of liberal justification." This practice displays a certain order and certain recursive characteristics. It is composed of a common ontology and a common narrative. It poses for itself a series of recursive intellectual problems answered with a stock …

Ignorance Of Law Is An Excuse - But Only For The Virtuous, Dan M. Kahan

Michigan Law Review

It's axiomatic that "ignorance of the law is no excuse." My aim in this essay is to examine what the "mistake of law doctrine" reveals about the relationship between criminal law and morality in general and about the law's understanding of moral responsibility in particular. The conventional understanding of the mistake of law doctrine rests on two premises, which are encapsulated in the Holmesian epigrams with which I've started this essay. The first is liberal positivism. As a descriptive claim, liberal positivism holds that the content of the law can be identified without reference to morality: one needn't be a …

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 …

Pavčnik's Theory Of Legal Decisionmaking: An Introduction, Louis E. Wolcher

Washington Law Review

Professor Pavčnik is one of the most prolific and interesting of those academics from the formerly communist states of Central and Eastern Europe who are currently writing on topics germane to legal philosophy. I had the privilege of co-teaching two classes with him at the University of Ljubljana in the fall of 1996-one on legal theory and the other on the philosophy of law-and in the course of our collaboration I acquired a great deal of respect for both the man and his work. The editors of the Washington Law Review, having had the excellent judgment to want to publish …

Equality Revisited, Christopher J. Peters

All Faculty Scholarship

In legal, political, and philosophical discourse, and indeed in everyday life, equality often plays the role of a normatively significant prescriptive principle, a principle that provides reasons for action. Professor Peters, however, joins Peter Westen and others who argue that the traditional statement of prescriptive equality-equals are entitled to equal treatment--is normatively empty because it is a tautology. Like Professor Westen, Professor Peters notes that this traditional principle translates into a statement of simple redundancy: people entitled to equal treatment are entitled to equal treatment. Unlike Professor Westen, however, Professor Peters discerns a nontautological principle of equality, which claims that …

Legal Decisionmaking As A Responsible Intellectual Activity: A Continental Point Of View, Marijan Pavčnik

Washington Law Review

The legal decision in a concrete case is never completely given in advance in the statute. A theory of legal decisionmaking that sees the decider as someone who merely "applies the law" is inadequate to explain what goes on in the process of legal decisionmaking. The legal decision is a value synthesis assessing the normative starting point with regard to the factual starting point, and vice versa. This means that a legal decision can only be made when the normative state of constituent facts of the case has been formed on the basis of the statute, when from the life …