Law and Philosophy Commons^™

Why The Courts Should Stop Philly Da Larry Krasner’S Impeachment Trial, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Subsidiarity & Vulnerability Theory: A Case Study For Deepening The Relationship Between Catholic Social Teaching And The Responsive State, Nathaniel Romano

Catholic University Law Review

Religion and religious voices have long had a role to play in shaping community norms and values and public policy; this role continues in contemporary America. Yet, legitimate questions arise about the extent of this role and its place in a pluralist and democratic state. These questions are particularly pronounced when religion is perceived as partisan, a situation that seems apparent in contemporary America. Hoping to combat this perception, this paper explores the relationship between Catholic Social Teaching and Vulnerability Theory, aiming to show how religious values can inform legal theory across the political spectrum. This paper surveys both Catholic …

Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey

Fordham Law Review

The right to free speech is a strongly protected constitutional right under the First Amendment to the U.S. Constitution. In 2010, the U.S. Supreme Court significantly expanded free speech protections for corporations in Citizens United v. FEC. This case prompted the question: could other nonhuman actors also be eligible for free speech protection under the First Amendment? This inquiry is no longer a mere intellectual exercise: sophisticated artificial intelligence (AI) may soon be capable of producing speech. As such, there are novel and complex questions surrounding the application of the First Amendment to AI. Some commentators argue that AI …

The Constitutional Law Of Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

Notre Dame Law Review

The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation. Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal texts (such as statutes, treaties, contracts, etc.). The distinctive function of the Constitution—often forgotten or overlooked—renders these analogies largely unnecessary. The Constitution was an instrument used by the people of the several States to transfer a fixed set of sovereign rights and powers from one group of sovereigns (the States) to another sovereign (the federal government), while maintaining the “States” as …

Debs And The Federal Equity Jurisdiction, Aditya Bamzai, Samuel L. Bray

Notre Dame Law Review

The United States can sue for equitable relief without statutory authorization. The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance. Debs was a monumental opinion that prompted responses in the political platforms of major parties, presidential addresses, and enormous academic commentary. In the early twentieth century, Congress enacted several pieces of labor legislation that reduced Debs’s importance in the specific context of strikes. But in other contexts, the question whether the United States can bring suit in equity remains disputed to this day. The …

When It Comes To Prosecuting Trump, Merrick Garland Needs To Decide Already, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

The Midterms Were Good News For Dems, But Even Better News For The Country, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

The Role Of Ethics And Morality In Law: Similarities Anddifferences, Haxhi Xhemajli

Ohio Northern University Law Review

No abstract provided.

A Relational Approach To Property, Jennifer Nedelsky

Articles & Book Chapters

No abstract provided.

The Moral Authority Of Original Meaning, J. Joel Alicea

Notre Dame Law Review

One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification. Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of originalism from within the natural law tradition that demonstrates that these critics are mistaken. That task has become more urgent in recent years due to Adrian Vermeule’s critique of originalism from within the natural law tradition, which has received greater attention than previous critiques. This Article is the first full-length response to the natural law critique of …

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Notre Dame Law Review

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Interring The Unitary Executive, Christine Kexel Chabot

Notre Dame Law Review

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate …

Religious Liberty And Judicial Deference, Mark L. Rienzi

Notre Dame Law Review

Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.

The Supreme Court took a decidedly Thayerian approach to the First Amendment …

Recovering Classical Legal Constitutionalism: A Critique Of Professor Vermeule's New Theory, Jeffrey A. Pojanowski, Kevin C. Walsh

Notre Dame Law Review

This Review proceeds in three Parts. Part I briefly summarizes Common Good Constitutionalism and provides a more detailed description of four of the book’s distinctive features. Part II critiques Vermeule’s argument in light of the classical tradition’s four essential aspects of law, namely that it is an ordinance of reason, for the common good, made by one who has care of the community, and promulgated. Part III draws on those reflections to respond to Vermeule’s criticisms of work like ours that argues that original-law-based understandings of the Constitution are at home in the classical legal tradition. A Conclusion briefly reflects …

A Law Professors’ Symposium Asks: Should We Control The U.S. Supreme Court?, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Friendship As The Primary Purpose Of Law, Michael P. Moreland

Faculty Publications

A significant aspect of the legacy of John Finnis is the restoration of friendship to a central place in moral, political, and legal theory building on the classical tradition in Plato, Aristotle, and Aquinas. This essay surveys the implications of friendship for law by way of exploring Finnis’s treatment of friendship in several of his works, including friendship as a condition for discourse, friendship as an especially important illustration of the central case, the relationship between friendship and the common good, and the place of civic friendship in a political community. The essay concludes with a discussion of friendship with …

There’S A Secular Need For The High Holy Days. This Is Why, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Trump Isn’T Going To Jail. And That’S Good News For Democrats, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

The Nation’S Debt Limit Serves No Purpose. It Should Be Eliminated, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Loving Truly: An Epistemic Approach To The Doxastic Norms Of Love

The International Journal of Ecopsychology (IJE)

If you love someone, is it good to believe better of her than epistemic norms allow? The partiality view says that it is: love, on this view, issues norms of belief that clash with epistemic norms. The partiality view is supposedly supported by an analogy between beliefs and actions, by the phenomenology of love, and by the idea that love commits us to the loved one’s good character. I argue that the partiality view is false, and defend what I call the epistemic view. On the epistemic view, love also issues norms of belief. But these say simply (and …