Law and Philosophy Commons^™

The Apostrophic Impasse: Diacritical Remarks On The Stories Of International Law, Legal Decolonial Genealogy And Antony Anghie’S Historiography, Britt L.A.Q. (Haadiya) Hendrix

Theses and Dissertations

The (hi)stories of international law have strengthened the tentacles of coloniality in the legal regime as they continue to taunt the precarious lifeworlds of people, our planet and social imaginaries of an otherwise. The flow of coloniality has similarly rematerialized in decolonial legal theories and the postcolonial historiographical accounts of international law. I intend to demonstrate this colonial revival in the groundbreaking text of Antony Anghie Imperialism, Sovereignty and the Creation of International Law (2005) which challenged the (hi)stories of traditional jurisprudence. The latter was not necessarily a rejection nor negation of Western thought, because I argue that ...

"I'M Concerned About This Post": Combatting Fake News On Social Media, Jake Latimer

Seattle Journal of Technology, Environmental & Innovation Law

The public concern over the spread of “fake news” on social media has increased over the last decade. Large social networking platforms like Facebook and Twitter have attempted to address fake news by flagging it as misleading. Even former President Trump has seemingly exhibited a sense of paranoia over its spread. While the term “fake news” is often used as a political weapon to discredit unfavorable information and opinions, fake news refers to factually false or grossly misleading content likely designed to sway or entrench one’s opinion on a particular topic. The pervasiveness of this type of fake news ...

The Dark Side Of Due Process: Part I, A Hard Look At Penumbral Rights And Cost/Benefit Balancing Tests, Joshua J. Schroeder

St. Mary's Law Journal

Due process is the fountainhead of legitimate government coercion. When an individual’s rights of life, liberty, or property are at stake, the government is meant to apply due process of the law or suffer reversal of its intrusions as a plain trespass. However, such reversals are merely theoretical, premised upon the willingness of federal judges to interpose their power for the protection of ordinary individuals.

The willingness of federal jurists to check the other branches of government for individual rights is transient at best. They do not usually check the global, dragnet United States surveillance programs that clearly violate ...

Universalizing Fraud, Parmida Enkeshafi

Duke Journal of Constitutional Law & Public Policy Sidebar

The criminal trial of Elizabeth Holmes has reanimated public interest in fraud. Holmes, once a Silicon Valley prodigy, was charged with two counts of conspiracy to commit wire fraud and eleven counts of wire fraud. A jury found Holmes guilty on four counts, potentially subjecting her to 80 years in prison. This Note uses the example of Elizabeth Holmes's case to examine more broadly the role of morality in fraud and argues for a new framework by which to articulate and prosecute fraud.

Criminal jurisprudence has struggled to construct a satisfactory definition of "white-collar crime" since sociologist Edwin H ...

Poetic Justice: Connecting The Modern American Prosecutor To Her Rhetorical Roots, Michael Caves

All Dissertations

Poetic Justice: Connecting the Modern American Prosecutor to her Rhetorical Roots explores the gap between rhetoric and the American prosecutor, to eventually advocate for a more creative, inventive trial practice for prosecutors that embraces the spirit and methods of narrative, poetics, and Ulmeric mystories, with the prosecutor’s unique ethical obligations forming the basis of a new prosecutor’s rhetoric. This research opens with an autoethnographic account of the author’s own path to criminal prosecution, to give the reader a sense of the author’s ethos, to identify the shortcomings of rhetorical training in law school pedagogy, and to ...

Walking Back The System Trope: Reimagining Incarceration And The State Through A Spatial Theory Approach, Cody Hunter

All Dissertations

This dissertation critiques the systems theory approach to incarceration policy, practice, and research and proposes a rhetorically informed spatial theory approach as an alternative. Offering a non-hierarchical complexity theory as a bridge between systems and space, I then integrate rhetorical listening as a strategy for navigating and operationalizing our proposed spatial theory approach. I then apply our proposed methodology to archival research, focusing on the South Carolina Penitentiary as a case study, and offer two heuretic experiments to explore the range of this methodology for archival research. I also explore potential applications of this rhetorically informed spatial theory approach in ...

The Conflict Of Rights In The Moral Community, Rebecca Spicer-Keller

Masters Theses

This thesis will delve into the moral arguments regarding abortion. I will argue that abortion is morally permissible until the fetus reaches consciousness. Once the fetus has gained consciousness, it has the capacity to develop and become an autonomous person and therefore joins the moral community and has rights.

Autonomy is important, and the respect for autonomy must be extended to conscious fetuses. Individual autonomy is a person's capacity to make decisions for themselves and about live their life according to reasons and motives that are free from external forces (Christman, 2020). Autonomous agency is necessary for equal political ...

The Declaration Of Independence, Constitution, And Slavery, Johnny B. Davis

Helm's School of Government Conference

The paper address the nature of the principles of the Declaration and the Declaration's relationship to the Constitution and how these related to slavery. The argument is that the Declaration did stand for universal equality of the individual before God and the law and therefore its principles condemned slavery. The Constitution did not embrace slavery even though it failed to ban slavery but did set the foundation for the end of slavery.

How To Decide Religious Liberty Cases: An Analysis Of Balancing Versus Principalism, Marc A. Clauson

Helm's School of Government Conference

No abstract provided.

A Commons In The Master's House, Daniel S. Farbman

Boston College Law School Faculty Papers

Almost everyone who reads these words is an institutional insider in some form. Those of us who aspire toward transformation, liberation, and resistance from our institutional settings are forced to confront Audre Lorde’s striking admonition that “the master’s tools will never dismantle the master’s house.” For some, finding themselves in the master’s house is a spur towards purism—a rejection of institutional power in search of a “pure” remove from which to critique it. For others, it is a dispiriting check on their aspirations and an invitation to sullen fatalism. This Essay questions whether we are ...

Why Aim Law Toward Human Survival, John William Draper

Librarian Scholarship at Penn Law

Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.

If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.

There is no better choice. You and all your relatives have rights ...

James Madison And Strict Constructionism, Drew Lemay

Liberty University Journal of Statesmanship & Public Policy

The United States Constitution has been a battleground between loose and strict constructionism since it was first ratified by the original thirteen colonies. To this day, the debate has continued to rage on across political groups. The question that remains to be answered is which method of interpretation did the Founding Fathers subscribe and intend to be utilized for the following generations. This essay seeks to partially answer that question by analyzing the view of one particular Founder: James Madison, the “Father of the Constitution.”

John Locke's Theory Of Property, And The Dispossession Of Indigenous Peoples In The Settler-Colony, Calum Murray

American Indian Law Journal

This paper explores how John Locke’s theory of property, elaborated in chapter five of his Second Treatise of Government, provided a compelling conceptual and practical justification for the appropriation of Indigenous peoples’ territories in America by the early English settler-colonists of the 17^th century. It examines how his property theory facilitated the nullification of Native American conceptions of land through the superimposition of European private property regimes in the settler colony. It further highlights briefly how indistinguishable dynamics also characterize the contemporary Israeli/Palestinian settler-colonial context, where the reverberations of Locke’s thought on property are pervasive. To ...

Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman

Faculty Scholarship at Penn Law

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

Faculty Scholarship at Penn Law

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 ...

Bridges Of Law, Ideology, And Commitment, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law

Law Faculty Research Publications

Robert Cover's metaphor of law as a bridge to an imagined future emphasizes the forward-facing character of law. But this is often obscured by law's backward-looking practice. The pathologies of contemporary judicial methodologies such as textualism distort the meaning and operation of law. Law has a distinctive temporal structure—an ontology—that defines it as a social institution. It knits together past, present, purpose, and projected future into a demand for action. Neglect one element of the complex dynamic and the bridge to an imagined future becomes what Václav Havel describes as “a bridge of excuses.” Law lives ...

Bad Acts, Worse Responses: Reconsidering The Moral Foundations Of The Us Criminal Justice System, Christian N. Futch

Honors College Theses

The purpose of this paper is to evaluate the contemporary criminal justice system in the United States, offering moral and pragmatic critiques to its current construction, and proposing an alternative construction that is both more successful pragmatically and morally. In this paper, I first establish the connection between morality and the law through the consideration of jurisprudential theories of law. After arguing for this connection, I then offer critiques of the current criminal justice system in the United States. After this, I evaluate the four general theories of punishment using the scholarship of Thom Brooks, finding that retributive and deterrent ...

Law And Literature In The Work Of Robert Cover, Tawia Ansah

Touro Law Review

This Article argues that although Robert Cover seems to discount the role and the practical efficacy of literary texts within the context of legal interpretation, Cover’s work nevertheless discloses an extensive exploration of literature and of literary interpretation to frame his own legal interpretive practices. This is particularly the case regarding the development of his theory of law’s violence. The Article attempts to show that a close reading of Cover’s interpretation of literary texts in the service of his legal analyses discloses a buried theme pursuant to the violence of law: the threshold concept, between law and ...

How The First Paragraph Of Violence And The Word Killed The Law As Literature Movement, Brett G. Scharffs

Touro Law Review

No abstract provided.

Bridges Of Law, Ideology, And Commitment, Steven L. Winter

Touro Law Review

Law has a distinctive temporal structure—an ontology—that defines it as a social institution. Law knits together past, present, purpose, and projected future into a demand for action. Robert Cover captures this dynamic in his metaphor of law as a bridge to an imagined future. Law’s orientation to the future necessarily poses the question of commitment or complicity. For law can shape the future only when people act to make it real. Cover’s bridge metaphor provides a lens through which to explore the complexities of law’s ontology and the pathologies that arise from its neglect or ...