Law and Philosophy Commons^™

January 22, 2011: Americans United For Separation Of Church And State, Bruce Ledewitz

Hallowed Secularism

Blog post, “Americans United for Separation of Church and State“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 20, 2011: Religion Dispatches Publishes Ledewitz Piece On The Free Exercise Clause, Bruce Ledewitz

Hallowed Secularism

Blog post, “Religion Dispatches Publishes Ledewitz Piece on the Free Exercise Clause“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Incredible Shrinking Free Exercise Clause, Bruce Ledewitz

Ledewitz Papers

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

January 18, 2011: So, Is This The Post-Secular Age Or Not?, Bruce Ledewitz

Hallowed Secularism

Blog post, “So, is this the post-secular age or not?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 14, 2011: The Atheist Wars, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Atheist Wars“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 9, 2011: The Violence Of The Secular, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Violence of the Secular“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 6, 2011: So Why Isn’T The Food Bill Unconstitutional?, Bruce Ledewitz

Hallowed Secularism

Blog post, “So Why Isn’t the Food Bill Unconstitutional?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 3, 2011: The Incredible Shrinking Free Exercise Clause, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Incredible Shrinking Free Exercise Clause“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

An Essay Concerning Judicial Resignation And Non-Cooperation In The Presence Of Evil, Bruce Ledewitz

Ledewitz Papers

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

Review Of Arthur Ripstein, Force And Freedom, Andrew Botterell

Law Publications

No abstract provided.

Does Judicial Philosophy Matter?: A Case Study, Francisco J. Benzoni, Christopher S. Dodrill

West Virginia Law Review

A leading theory in the study of judicial behavior is the attitudinal model. This theory maintains that a judge's political ideology can be used to predict how a judge will decide certain cases; other factors, such as the judge's judicial philosophy, tend to be unimportant. Under this theory, two judges with the same political ideology, but different judicial philosophies, should virtually always vote the same way in cases with pre­dicted ideological outcomes. This manuscript tests the attitudinal model by examin­ing opinions by two judges with very similar political ideologies but different judicial philosophies: Judge Michael Luttig and Judge Harvie Wilkinson …

Getting Real About Legal Realism, New Legal Realism And Clinical Legal Education, Kate Kruse

Faculty Scholarship

Jerome Frank’s call for a “clinical lawyer-school” is cited so frequently in clinical scholarship that it borders on the canonical. Like many calls for reform in legal education, Frank’s plea for clinical lawyer-schools was based on a critique of the appellate case method of legal instruction. However, unlike most critiques, the legal realist critique was embedded within a jurisprudential challenge to the meaning of law itself, arising from American Legal Realism. Running through legal realist jurisprudence was a distinction between the “law in books” and the “law in action,” with the idea that law is not found primarily in statutes …

Confidentiality And Common Sense: Insights From Philosophy, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.

Narrative And The Origins Of Law, Allison Anna Tait, Luke P. Norris

Law Faculty Publications

In order to understand these distinct narratives of legal origin through the tools of narratology, we will proceed in several steps. First, we will define more precisely the set of social contract theories that we consider. We will discuss our decision to narrow the focus down to two social contract theorists in particular, one contemporary and one classical, John Rawls and Jean-Jacques Rousseau. These two theorists seem worlds apart in many respects—yet the tools of narratology will enable us to see their shared enterprise. Second, the tools of narratology will help us to identify and discuss the component parts that …

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

All Faculty Scholarship

How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

Appellate Judges And Philosophical Theories: Judicial Philosophy Or Mere Coincidence, Gerald R. Ferrer, Mystica Alexander

Richmond Journal of Law and the Public Interest

This paper suggests that judicial opinions often reflect ajudge's position on what is ethical and useful in the real world of constitutional values. It further suggests that an appreciation of legal philosophical theory assists one in understanding the ethical and public policy dimensions of a court's opinion. Do judges' opinions parallel philosophical theories constructed by philosophers or is any apparent relationship mere coincidence? This paper suggests the former-that a judge's belief system, education, and experiences 2 include the adoption of judicial philosophies, the expression of which can be found in his or her written opinions.

Radical Thought From Marx, Nietzsche, And Freud, Through Foucault, To The Present: Comments On Steven Lukes’S In Defense Of "False Consciousness", Bernard E. Harcourt

Faculty Scholarship

Steven Lukes offers a precise, succinct, and forceful defense of the idea of "false consciousness" in his provocative essay by that name, In Defense of "False Consciousness" People can be systematically mistaken about their own best interest, Lukes contends – or, in his words, "they can have systematically distorted beliefs about the social order and their own place in it that work systematically against their interests." It is not just that sometimes people knowingly but regretfully make compromises, nor simply that they face no alternative choices; people are at times factually mistaken about what will promote their best interest. "There …

Leiter On The Legal Realists, Michael S. Green

Faculty Publications

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to …

We Hold These Truths And The Problem Of Public Morality, Gerard V. Bradley

Journal Articles

This essay maintains that although We Hold These Truths represented an important milestone in Catholic reflection on the American regime, Murray's analysis of public morality and the state's role in its promotion and enforcement is notably weak and of little assistance to us today. More specifically, it argues that Murray’s analysis is insufficiently philosophical and too concerned with the pragmatic task of forging an approach widely acceptable in the America of his day; that it rests on an artificial distinction between “private” and “public” morality that fails to sufficiently appreciate the essential dependence of sound morals legislation upon the government’s …

Reasons: Explanatory And Normative, Joseph Raz

Faculty Scholarship

‘A reason’ has two meanings: explanatory reasons are facts that contribute to an explanation (of anything explained); normative reasons are facts that favour and guide responses, in one’s emotions, beliefs, actions, etc., to how things are. The two kinds of reasons are connected by their connection to the capacity of Reason, or rationality, and by the normative/explanatory nexus, i.e. by the fact that normative reasons can explain the response that they favour. Normative reasons are — potentially — explanatory reasons, but the explanations they provide are of a special kind that presupposes their normative character. The chapter builds on …