Law and Philosophy Commons^™

Interactional Ordering: Reconstructing Lon Fuller's Theory Of Private Law, Shyamkrishna Balganesh

Faculty Scholarship

While Lon Fuller is best remembered for his contributions to the fields of general jurisprudence and contract law, his work in each has long been seen as unrelated to the other. This Article shows that in a significantly underappreciated body of work, Fuller did connect the two and, in the process, developed the outlines of a robust theory of private law, best characterized as “interactional ordering.” Driven by Fuller’s efforts to develop a jurisprudence of form that was derived from conventionalism and natural law thinking, interactional ordering sees all normativity as originating in horizontal interactions between individuals in society, seeking …

Recovering Constitutional Identity In Colonial South India: Sedition, Sovereignty, And Small-C Constitutionalism In Pudukkottai, Bharath Gururagavendran

National Law School Journal

Constitutional identity is easiest to identify when it has already been credentialed: by a constitutional text, constituent authorisation, or judicial recognition. What remains visible when those markers are absent? Through a historically grounded study of the ‘Little Kingdom’ of Pudukkottai, a princely state in colonial South India, this article examines whether constitutional identity can be recovered from the small-c life of a polity whose opportunities for formal constitution-making were structurally foreclosed. Pudukkottai had no big-C moment. Its constitutional life, if it had one, must be reconstructed from less authoritative materials. The article argues that the absence of a constitutional text …

The Enduring Relevance Of Congress Despite The Court's Shift To “Ordinary Reader” Statutory Interpretation, Abbe R. Gluck, Laila M. Robbins

Journal of Law and Policy

Has Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court’s new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism’s perspective, from an “insider” perspective focused on Congress’s textual choices, to an “outsider” perspective based on how “ordinary people” read statutes. The Court’s self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars—including first-generation textualists—had for a century focused …

The Broad Church Of Modern Textualism, Nicole Steitz, Brian G. Slocum, Kevin Tobia

Journal of Law and Policy

Nearly thirty years ago, Justice Scalia’s Tanner lectures branded Holy Trinity Church v. United States (1892) as the anti-textualist archetype, a decision trumping the text’s plain meaning with a suspect judicial investigation of the law’s purpose or spirit. And so Holy Trinity seemed, until Gales and Solan’s groundbreaking empirical study supported an alternative reading of the key statutory term (“labor or service”) that would avoid this conflict between text and purpose. Taking inspiration from Gales and Solan, we reconsider Holy Trinity using the precepts of modern textualism, with its increased emphasis on context, pragmatics, anti-literalism, legal meaning, holistic meaning, non-compositionality, …

The Pet Fish Canon, William N. Eskridge Jr.

Journal of Law and Policy

Inspired by the work of the late Professor Larry Solan, this article proposes that judges recognize as one of the textualist canons of statutory construction a “pet fish” canon. Such a canon would posit that when an ordinary reader would understand two or more words to yield a meaning that is different than the sum of the two words defined separately, the statutory interpreter should not disaggregate them. The Roberts Court has already followed such a linguistic precept in some statutory cases, and this article proposes that the Court recognize this as a canon considered at least as seriously as …

Grammar & Syntax Arguments On The Roberts Court, Anita S. Krishnakumar

Journal of Law and Policy

In his excellent book, The Language of Judges, Professor Solan demonstrates how judges use grammatical or linguistic arguments to avoid acknowledging statutory ambiguity—and how they often get the grammar or linguistics wrong. Since his book was published, textualism has become the dominant interpretive approach on the U.S. Supreme Court—and we have seen increasingly prominent battles involving grammatical devices and rules. This comment takes Professor Solan’s analysis as a jumping off point to evaluate how grammar and linguistic arguments are employed on the modern Supreme Court, in the age of textualism. The comment offers a brief empirical and doctrinal assessment of …

A Proxy For Piety: A Closer Look At Religious Cost In The Substantial Burden Inquiry, Philip Andrew B. Wines

Fordham Law Review Online

This Comment discusses whether the Establishment Clause and “religious question” doctrine prohibit courts from considering the subjective religious harm suffered by free exercise claimants when determining if laws impose a “substantial burden” on the claimant, as defined by the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It explores a dilemma that courts are presently facing. They must choose either to wade into constitutionally perilous theological debates to decide cases on their merits, or to defer to free exercise claimants on their own assertions of substantial burden and risk swallowing up the law …

The Alabama Embryo Decision In Ethics, Law, And Politics, I. Glenn Cohen

Pace Law Review

No abstract provided.

Taxation's Limits, Luís C. Calderón Gómez

Northwestern University Law Review

Countless pages have been devoted to the question of why everyone should pay tax, yet its opposite has gone largely unnoticed: why should some people and organizations not pay tax? Our tax system exempts from ordinary income taxation a wide and diverse array of people and organizations engaged in significant economic activity—from parents providing childcare services for their family to consular activities and charities operating animal shelters—seemingly without a convincing explanation. Perhaps because of the dizzying diversity of tax-exempt activities, scholars and policymakers have avoided comprehensively or coherently justifying our exemption regimes.

This Article develops a novel normative theory that …

The Politics Of Legal Theory Revisited, Dan Priel

Articles & Book Chapters

Most legal positivists today hold that legal positivism is a morally neutral and the purely scriptive account of the nature of law. This article signs this claim by Brian Leiter’s claim to the contrary. While I welcome the political presuppositions of jurisprudential theories, I show that the association of legal positivism with radicalism is not true. Examining the works of prominent legal positivists, I show that there is no basis for thinking of any of them as a political radical. I also show that many legal positivists were politically conservative. Beyond the Historical Question, I as that argue is no …

The Hierarchical Implication Of Jus Cogens: An Analysis Of Schwarzenberger And Kelsen On The Recognition Of The Prohibition Of Torture And Genocide As Peremptory Norms, Carlos G. Ramaglia Mota

Buffalo Human Rights Law Review

This article explores the challenge faced by positivist schools of law in integrating the concept of jus cogens within their systematic legal frameworks. By comparing the theories of Schwarzenberger and Kelsen, it demonstrates that Positivism is not a monolithic representation of the traditional international regime of consent. Utilizing a doctrinal legal research methodology, the study draws upon authoritative sources, including legal scholarship, case law, and conventions related to the prohibition of torture and genocide. The article traces the origins and development of jus cogens, examining its connections to post-war Germany and Austria, and its universalistic Christian roots. Analyzing doctrinal and …

Revisiting Marcuse On Repressive Tolerance: A Twenty-First Century Retrospective, David Ingram

Philosophy: Faculty Publications and Other Works

Herbert Marcuse’s essay Repressive Tolerance (RP) has been praised by the Left and vilified by the Right for its alleged promotion of censorship targeting reactionary opinions and actions. I argue that this interpretation of the text is mistaken. According to my alternative reading of the text, RP should be understood as an exercise in provocation and irony aimed at defending civil disobedience and dissent. Marcuse’s defense of dissent, however, appeals to a critique of pure tolerance that exposes the unavoidably partisan practice of tolerance, which invariably favors the reigning undemocratic status quo. The choice whether to tolerate in a manner …

Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

Theistic Illiberal Constitutionalism: A Review Of Adrian Vermeule’S Common Good Constitutionalism, Kyron J. Huigens

Articles

Adrian Vermeule’s Common Good Constitutionalism drew a remarkable amount of attention from constitutional law scholars when it was published in 2020. About eighteen months later, Vermeule published a piece complaining that the critics had missed the point, that they had ignored the natural law jurisprudence that grounds the work. He was correct. This Review addresses Vermeule’s natural law jurisprudence, emphasizing the fact that it is a religious natural law jurisprudence. His arguments are in the tradition of ScholasticismAristotelian logic incorporated into Christian theology by St. Thomas Aquinas. Scholasticism is a remarkably weak foundation for constitutional jurisprudence. It is a vast …

The Legal Realists On Political Economy, Dan Priel

Articles & Book Chapters

Alongside the well-known jurisprudential ideas associated with legal realism, some scholars have highlighted the realists’ political-economic ideas. Best known among them has been Morton Horwitz, who has argued that the realists launched an “attack on the legitimacy of the market.” Other scholars challenged this view and argued that there was no significant connection between legal realism and political economic ideas. I offer a corrective to both views. I first consider the work of five legal realists (Karl Llewellyn, Adolf Berle, William O. Douglas, Jerome Frank, and Thurman Arnold) and show that all held views that were well within the political-economic …

Killers That Once Were Humans: Reading The Role Of Modern Law Via Instrumental Rationality, Momen Abdelbari Hassan

Theses and Dissertations

For Max Weber, the process of modernization is the process of rationalization in which it includes every realm in our modern life, such as the economy, science, organization, education, and law. However, this kind of rationalization has created coercive and inhumane conditions because rationalization has converted to being instrumental (value-free) without regard to any transcendental or moral values. The inhumane paradigm has become the only fate of our world. The vision needs rational domination to be achieved through formal rational law. Modern law, along with bureaucratization, has paved the road to rational political domination. This kind of domination captures human …

Can Human Rights Be Reconciled With Citizenship: Reconsidering Marx's Zur Judenfrage Today, David Ingram

Philosophy: Faculty Publications and Other Works

This essay critically re-examines Marx’s youthful analysis of the separation of church and state and his complex views about the function of rights in the modern state. I argue that Marx’s condemnation of Christian nationalism and endorsement of citizenship for Jews is consistent with his view that the modern, secular state cannot emancipate itself entirely from religiosity, as evidenced by the continuing legacy of nationalism and cultural identity politics today. Although Marx correctly follows Hegel in identifying modernity with a structural differentiation between civil society and state, I argue that he misunderstands the nature of this separation and, along with …

The Voice Of Criminal Law, Michelle Madden Dempsey

Faculty Publications

In whose voice does the criminal law speak, and why does it matter? Miriam Gur-Arye argues that the answer to the first question depends on the kind of duty violated by the crime at issue. In some cases (say, election fraud or tax evasion), the criminal law speaks in the voice of the polity—but in other cases (say, murder or rape), it speaks in the voice of human beings. Or so argues Gur-Ayre. Not surprisingly, perhaps, a lot depends on what one means by the voice of the criminal law. In this paper, I defend two related arguments. First, the …

Civic Education And Democracy's Flaws, Robert L. Tsai

Faculty Scholarship

Today, liberalism and democracy are beset by competitors that seek to return power to religious traditionalists or partisans masquerading as civic republicans. In such an environment, can civic education do some good, and even help bridge our society’s deepening divides?

Seana Shiffrin has characteristically brought deep learning and penetrating insight to the project of civic education in a modern democracy. Against a “dominant” model of citizenship in which “citizens vote and hand off power to their representatives”— which she believes encourages the people to maintain an unhealthy distance from government— she proposes a richer account of political community in which …

The Role Of Sentiment In The Democratic Transition: A Reading On The Determinants Of The Revolution Spread (The Arabic Spring As A Model), Ahmed F. Ibrahim Al-Rimawi, Abdulqader A. Alazzeh

An-Najah University Journal for Research - B (Humanities)

The study seeks to reveal the reasons for the revolution’s transition from an Arab country (Tunisia) to other Arab countries (Egypt, Libya, Syria, Yemen) through what can be described as a (revolution stream). The study does not seek to determine the success or failure of the revolution in these Arabic countries, as much as it aims to study the motives for the transition of the revolution. Thus, to achieve this goal, the author divided the study into two main notions. The first notion aims at exploring the value of the “sentiments” in terms of its theoretical rooting as it has …