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Articles 1 - 17 of 17
Full-Text Articles in Social and Behavioral Sciences
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
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For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
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The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …
Rethinking Copyright And Personhood, Christopher S. Yoo
Rethinking Copyright And Personhood, Christopher S. Yoo
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One of the primary theoretical justifications for copyright is the role that creative works play in helping develop an individual’s sense of personhood and self-actualization. Typically ascribed to the writings of Immanuel Kant and Georg Wilhelm Friedrich Hegel, personhood-based theories of copyright serve as the foundation for the moral rights prominent in European copyright law and mandated by the leading intellectual property treaty, which give authors inalienable control over aspects of their works after they have been created. The conventional wisdom about the relationship between personhood and copyright suffers from two fatal flaws that have gone largely unappreciated. First, in …
Judge Posner’S Simple Law, Mitchell N. Berman
Judge Posner’S Simple Law, Mitchell N. Berman
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The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.
Posner’s diagnoses and prescriptions range widely—from the Bluebook …
Privacy Law: Positive Theory And Normative Practice, Anita L. Allen
Privacy Law: Positive Theory And Normative Practice, Anita L. Allen
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No abstract provided.
Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick
Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick
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The federal preemption of state law has emerged as a prominent field of study for legal scholars and political scientists. This rise to prominence of a technical and often dull field of jurisprudence is due to a number of developments-increasingly frequent federal statutory preemptions; the states' unprecedented aggressiveness in regulating business transactions, the expansion of corporate liability under state common law and the increased resort of corporate defendants to federal preemption defenses; and, not least, the Rehnquist Court's discovery of federalism and states' rights.
Unfortunately, the preemption debate has been marred by misperceptions and a lack of reliable data. Extravagant …
Method And Principle In Legal Theory, Stephen R. Perry
Method And Principle In Legal Theory, Stephen R. Perry
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No abstract provided.
Why The Successful Assassin Is More Wicked Than The Unseccessful One, Leo Katz
Why The Successful Assassin Is More Wicked Than The Unseccessful One, Leo Katz
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No abstract provided.
Threats And Preemptive Practices, Claire Oakes Finkelstein
Threats And Preemptive Practices, Claire Oakes Finkelstein
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No abstract provided.
Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz
Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz
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Economists and philosophers working on problems of rational choice have for some time been concerned with various puzzles raised by so-called "Ullysean" configurations: actors who rationally cause themselves to act irrationally. (e.g., the person who swallows Thomas Schelling's famous irrationality pill to preempt an attempted robbery). What has attracted less attention is that these configurations present fascinating problems for morality, most especially for non-consequentialist morality. This article undertakes the exploration of some of these problems and the implications they hold for the morality of preemptive detention, preemptive self-defense, the creation of prophylactic crimes (like our drug laws) and a variety …
Crazy Reasons, Stephen J. Morse
The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer
The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer
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No abstract provided.
Government "Largesse" And Constitutional Rights: Some Paths Through And Around The Swamp, Seth F. Kreimer
Government "Largesse" And Constitutional Rights: Some Paths Through And Around The Swamp, Seth F. Kreimer
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No abstract provided.
Manners, Metaprinciples, Metapolitics And Kennedy's Form And Substance, William W. Bratton
Manners, Metaprinciples, Metapolitics And Kennedy's Form And Substance, William W. Bratton
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No abstract provided.
Justice, Mercy, And Craziness, Stephen J. Morse
Justice, Mercy, And Craziness, Stephen J. Morse
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No abstract provided.
The Twilight Of Welfare Criminology, Stephen J. Morse
The Twilight Of Welfare Criminology, Stephen J. Morse
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No abstract provided.
The Twilight Of Welfare Criminology: A Final Word, Stephen J. Morse
The Twilight Of Welfare Criminology: A Final Word, Stephen J. Morse
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No abstract provided.