Legal Theory Commons^™

Deconceptualizing Artists' Rights, Steven G. Gey

San Diego Law Review

During the last three decades, visual artists and their supporters have convinced several states and the federal government to enact legislation protecting the moral rights of artists. This effort culminated in the federal government’s enactment of the Visual Artists Rights Act of 1990. These statutes protect various aspects of art, including most importantly artistic integrity, which gives artists the right to prevent the intentional distortion, mutilation, or other modification of an artistic work if the modification would damage the artist’s reputation. These statutes have recently come under attack, surprisingly, from within the art community itself. Professor Amy Adler recently published …

Fidelity To Law And The Moral Pluralism Premise, Katherine R. Kruse

Scholarly Works

In Fidelity to Law, Wendel presents and defends a comprehensive theory of legal ethics with two interrelated arguments: a functional argument that law deserves respect because of its capacity to settle normative controversy in a morally pluralistic society; and a normative argument that law deserves respect because democratic lawmaking processes respect the equality and dignity of citizens. This review essay questions Wendel’s move from the premise of moral pluralism to his conclusion that the function of law is to settle normative controversy in society on both practical and theoretical grounds. Practically, it argues that law lacks the capacity to …

Confucian Virtue Jurisprudence, Linghao Wang, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects the central aim of our work, to build a contemporary theory of law that is both virtue-centered and that provides a contemporary reconstruction of the central ideas of the early Confucian intellectual tradition.

This essay provides a sketch of our contemporary version of Confucian virtue jurisprudence, including a view of …

How The "Unintended Consequences" Story Promotes Unjust Intent And Impact., Martha T. Mccluskey

Journal Articles

In the guise of critical analysis of the limits of law reform, the familiar phrase “unintended consequences” serves to rationalize rising inequality and to undermine democratic accountability. This paper examines how the phrase promotes a story of disentitlement, using the recent financial crisis as an example. By naturalizing inequality as power beyond law’s reach, this phrase’s message that benign law is likely to bring unequal consequences dovetails with a seemingly contradictory message that benign intent, rather than harmful impact, is what primarily counts for evaluating inequality.

As part of a LatCrit XV symposium taking a “bottom-up” view of the recent …

Together Again, John Henry Schlegel

Journal Articles

No abstract provided.

Faith And Fidelity: Originalism And The Possibility Of Constitutional Redemption, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay reviews Constitutional Redemption: Political Faith in an Unjust World by Jack Balkin (2011) and Living Originalism by Jack M. Balkin (2011).

Contemporary scholarly debates about originalism and living constitutionalism are filled with claims about the political valence of these two theories. Here are some examples: "Originalism remains even now a powerful vehicle for conservative mobilization. ..." "[L]iving constitutionalism...has been at the core of progressive constitutional thought since the 1970s." "[A]ny reasonably well-informed observer knows that the term 'living Constitution' encodes liberal sympathies, just as originalism encodes conservative ones. ..." "[O]riginalism cannot easily be appropriated to progressive constitutional arguments." …

The Structural Injustice Of Forced Migration And The Failings Of Normative Theory, David Ingram

Philosophy: Faculty Publications and Other Works

I propose to criticize two strands of argument - contractarian and utilitarian – that liberals have put forth in defense of economic coercion, based on the notion of justifiable paternalism. To illustrate my argument, I appeal to the example of forced labor migration, driven by the exigencies of market forces. In particular, I argue that the forced migration of a special subset of unemployed workers lacking other means of subsistence (economic refugees) cannot be redeemed paternalistically as freedom or welfare enhancing in the long run. I further argue that contractarian and utilitarian approaches are normatively incapable of appreciating this fact …

Inchoate Crimes At The Prevention/Punishment Divide, Kimberly Kessler Ferzan

San Diego Law Review

In this Article, I argue that inchoate crimes are best dealt with under a preventive regime. Part II argues that inchoate crimes and preparatory offenses are primarily aimed at preventing a harm and not at punishing those who deserve it. It also revisits concerns with punishing incomplete attempts that Larry Alexander and I have voiced previously. Part III considers Alec Walen's recent proposal to combat terrorism through the criminalization of threats as an inchoate offense. It also addresses general concerns with Walen's proposal and claims that Walen does not resolve the problems with inchoate criminality set forth in Part II. …

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

San Diego Law Review

This Article contends that properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so, at least for crimes against person and most other street crimes.

More specifically, the position defended in this Article is that, once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. Compared to determinate sentencing, the sentencing regime advanced in this Article relies on wider sentence ranges and explicit assessments of risk, …

Lifting The Cloak: Preventive Detention As Punishment, Douglas Husak

San Diego Law Review

Most of the scholarly reaction to systems of preventive detention has been hostile. Negative judgments are especially prevalent among penal theorists who hold nonconsequentialist, retributivist rationales for criminal law and punishment. Surely their criticisms are warranted as long as we confine our focus to the existing systems of preventive detention that flagrantly disregard fundamental principles of legality and desert. Nonetheless, I believe that many of their more sweeping objections tend to rest too uncritically on doctrines of criminal theory that are not always supported by sound arguments even though they are widely accepted. I will contend that we cannot fully …

Prevention And Imminence, Pre-Punishment And Actuality, Gideon Yaffe

San Diego Law Review

In a variety of circumstances, it is justified to harm persons, or deprive them of liberty, in order to prevent them from doing something objectionable. We see this in interactions between individuals--think of self-defense or defense of others--and we see it in large-scale interactions among groups--think of preemptive measures taken by countries against conspiring terrorists, plotting dictators, or ambitious nations. We can argue, of course, about the details. Under exactly what conditions is it justified to inflict harm or deprive someone of liberty for reasons of prevention? But in having such arguments we agree on the fundamental idea: there are …

A Punitive Precondition For Preventive Detention: Lost Status As A Foundation For A Lost Immunity, Alec Walen

San Diego Law Review

This Article argues that the presumption that an actor will be law-abiding, like the right to liberty itself, can be forfeited by criminal actions. In other words, the point is to argue that a just punishment could involve loss of the status of being a beneficiary of this presumption just as much as it could involve the loss of liberty.

In Part II, I introduce a basic framework for detention consistent with respect for autonomy and locate the lost status view within that framework. In Part III, I spell out the lost status view in more detail and contrast it …

How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources …

The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell

San Diego Law Review

In this Article, I argue that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power--whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled.

Socioeconomic Rights And Theories Of Justice, Jeremy Waldron

San Diego Law Review

This Article considers the relation between theories of justice - such as John Rawls's theory - and theories of socioeconomic rights. In different ways, these two kinds of theories address much of the same subject matter. But they are quite strikingly different in format and texture. Theories of socioeconomic rights defend particular line-item requirements: a right to this or that good or opportunity, such as housing, health care, education, and social security. Theories of justice tend to involve a more integrated normative account of a society's basic structure, though they differ considerably among themselves in their structure. So how exactly …

Independent Counsel In Insurance, Douglas R. Richmond

San Diego Law Review

Mention the term "independent counsel" to many lawyers and they think immediately of the process whereby the Attorney General of the United States requests a panel of federal judges to appoint an Independent Counsel to investigate and prosecute crimes by government officials. Business lawyers may think of "independent counsel" in the context of counsel for independent directors on a corporate board in connection with select matters. For most litigators, however, the term "independent counsel" describes a lawyer engaged to defend an insured at a liability insurer's expense in a case in which the liability insurer has lost the right to …

Executions In America: How Constitutional Interpretation Has Restricted Capital Punishment, Andrea Paone

Pell Scholars and Senior Theses

In upholding the constitutionality of capital punishment, the United States Supreme Court has utilized a strict construction interpretation of the Fourteenth Amendment's Due Process Clause, which has led the opponents of capital punishment to abandon the Due Process approach and look to the Eighth Amendment, for which the justices utilize a loose construction interpretation.

Analyzing Sexual Expression: Marriage, Prostitution, And The Law, Leah Christiani

Honors Scholar Theses

Marriage and prostitution laws solidify and propagate norms about sexual expression. Marriage law functions positively to dictate the kind of expression that is acceptable, normal, and natural while prostitution law frames the illegal, deviant, and unnatural. The legal benefits offered to those who marry function as an endorsement of a particular type of sexual expression: monogamous, faithful, loving, long term, and procreative. Equally, the criminalization of prostitution solidifies norms about the wrong, illegal unnatural kind of sexual expression; one focused on pleasure and money, not monogamy, fidelity, love, or procreation. These valuations of sexual expression solidified by the law impact …

The Right To Privacy In Light Of The Patriot Act And Social Contract Theory, Betsey Sue Casman

UNLV Theses, Dissertations, Professional Papers, and Capstones

There is a continual debate between individuals who attempt to measure the individual’s right to privacy against the government’s right to know in order to provide for the security of all citizens.

The questions that beg to be answered are whether the individual’s right to privacy outweighs the government’s duty to provide security; and if security is deemed more important, can there even be a right to privacy. It is critical to our nation’s anti-terrorism effort that our intelligence agencies possess the legal capacity to intercept all forms of communications utilized by terrorists and hostile intelligence agents. Inevitably this will …

Contested Legality And The Insecurity Of Status: Some Snapshots From A Decade Of Refugee Law, Donald Galloway

Western Migration Conference Series

Bio:

Donald Galloway is a Professor of Law at the University of Victoria, British Columbia. He specializes in Refugee Law, Citizenship Law and Immigration Law. He was the founding President of the Canadian Association of Refugee and Forced Migration Studies (CARFMS) and is a former member of the Immigration and Refugee Board.

Reviewing Racism And The Right To Marry: An Analysis Of Loving V. Virginia, Kathryn L. Jordan

Senior Honors Theses

Prior to the 1967 United States Supreme Court case of Loving v. Virginia, many states had laws that banned the intermarriage of whites with black or other minorities. Since then, the number of interracial marriages has increased and the attitudes of society have shifted. This thesis uses Loving as basis to explore the ways in which societal views have changed since the overruling of the anti-miscegenation statutes. It first discusses the culture in America before Loving and then, explains the details of the Loving case. This is then followed by a synopsis of how the culture changed after Loving. After …

Should Primates Have Legal Rights?, Hannah Barten, Zhimin Chen

Festival of Communities: UG Symposium (Posters)

A primate having legal rights is a controversial topic these days. Many other countries around the world support the idea of great apes having legal rights, because we for one are one of the five great primates. Others do not support this trending topic as much as others. These types of people believe that great apes such as chimpanzees are superb testing animals for medical purposes, because of the fact that they are closely related to mankind. Organizations such as Great Ape Protection, work towards protecting the rights of these great apes since they cannot speak for themselves. In many …

What Kind Of Right Is The Right To The City?, Kafui A. Attoh

Publications and Research

No abstract provided.

Globalization And Eligibility To Deliver Legal Advice: Inbound Legal Services Provided By Corporate Counsel Licensed Only In A Country Outside The United States, Carol A. Needham

San Diego Law Review

The regulation of cross-border delivery of legal services remains in flux. Clients in the United States, particularly sophisticated corporate clients, should be allowed to utilize the special expertise possessed by lawyers licensed outside the United States. Key reforms that at this point are gaining traction include the following: allowing lawyers licensed outside the United States to qualify for limited licenses as in-house counsel; broadening the scope of practice so that all foreign legal consultants are allowed to give legal advice related to third-country and international law; and allowing fly in, fly out practice while temporarily present in the host state. …

Facing The Unfaceable: Dealing With Prosecutorial Denial In Postconviction Cases Of Actual Innocence, Aviva Orenstein

San Diego Law Review

This Article develops a question that intrigued Fred: prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and why prosecutors resist allowing DNA testing and, more startlingly, deny the obvious implications of DNA evidence when that evidence exonerates the convicted.

Part II of this Article briefly summarizes two of Fred’s major articles on the subject of prosecutorial ethics. Part III documents the problem of postconviction DNA exonerations and prosecutors’ varied reactions. …

Federalizing Legal Ethics, Nationalizing Law Practice, And The Future Of The American Legal Profession In A Global Age, Eli Wald

San Diego Law Review

This Article is organized as a response to Zaharias’s influential paper, revisiting each of his four analytical steps. Following Zacharias, Part II documents the growing nationalization and globalization of law practice, and argues that the transformation of law practice renders the state-based regulation of lawyers ineffective. Part III parts ways with Zacharias’s thesis. It asserts that nationalizing, by federalizing, legal ethics is not warranted by changing practice realities and that, worse, federalizing legal ethics without more will leave some of the most troubling aspects of the transformation of law practice, including client needs, unaddressed. Instead, Part III argues that the …

Three Concepts Of Roles, W. Bradley Wendel

San Diego Law Review

There is something distinctive about the law, legal reasoning, and the role of lawyers. That distinctiveness is captured by the idea that normative reasoning by citizens in communities is necessarily aimed at discovering what rights and obligations everyone ought to have, consistent with the interests of other citizens. It is implausible to believe that ordinary moral reasoning is well-suited to working out a scheme of public entitlements that is suited to regulating the interactions among citizens who disagree about what their entitlements ought to be. The law has authority to the extent it enables people to do better than they …

Confidentiality And Common Sense: Insights From Philosophy, Thomas Morawetz

San Diego Law Review

In this Article, I will consider two aspects of the controversy that help explain why it is static. I will consider the significance of empirical evidence that lawyers and clients find the rules morally troubling. Zacharias plausibly assumes that such evidence carries compelling weight. I will also look at the nature of morality itself and the extent to which professional rules should be expected to conform to morality.

On The Connection Between Law And Justice, Anthony D'Amato

Faculty Working Papers

What does it mean to assert that judges should decide cases according to justice and not according to the law? Is there something incoherent in the question itself? That question will serve as our springboard in examining what is—or should be—the connection between justice and law. Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.