Law and Philosophy Commons^™

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 do so, …

The Big Lie Is Undermining Our Democracy. Both Parties Need To Defeat It, Bruce Ledewitz

Newspaper Columns

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

Sure, Things Seem Bad. But There Are Some Reasons To Be Cheerful In 2022, Bruce Ledewitz

Newspaper Columns

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

On Controlling The Supreme Court: Is There A Future For American Law?, Bruce Ledewitz

Ledewitz Papers

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

“You Keep Using That Word”: Why Privacy Doesn’T Mean What Lawyers Think, Joshua A.T. Fairfield

Scholarly Articles

This article explores how the need to define privacy has impeded our ability to protect it in law.

The meaning of “privacy” is notoriously hard to pin down. This article contends that the problem is not with the word “privacy,” but with the act of trying to pin it down. The problem lies with the act of definition itself and is particularly acute when the words in question have deep-seated and longstanding common-language meanings, such as liberty, freedom, dignity, and certainly privacy. If one wishes to determine what words like these actually mean to people, definition is the wrong tool …

This Earthly Frame: The Making Of American Secularism, Bruce Ledewitz

Ledewitz Papers

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

Technology - Revealing Or Framing The Truth? A Jurisprudential Debate, Dana Neacsu

Duquesne Law Review

Technology is so much more than a prosthetic. But how much more? And what else is it? In the legal realm, its role is not yet clear. Such a lack of elucidation becomes problematic, especially when technology has the ability to convert assumptions into facts, and it takes on a truth-making, rather than a mere truth-revealing mission. This Article argues that it is problematic to enable technology to stand in for reflective thinking, and calls attention to the fact that evidentiary rules enable technology to decide what can be proven, ergo what truth is.

Normative Powers, Joseph Raz

Faculty Scholarship

The chapter provides an analysis of normative powers as the ability to change a normative condition, and distinguishes and analyses several kinds of such powers. It distinguishes between wide normative powers possessed by any act that non-causally results in a normative change, and narrow normative powers, which are the main topic of the chapter. The most important theses of the chapter are: First, the distinction between basic normative powers and chained normative powers (the latter being powers created by the exercise of other powers) and second, defending the apparently surprising claim that people have narrow powers when and because there …

What We Are Owed: The Possibilities Of A Civil Law Response To Sexual Injuries, Nathalie Marx

Scripps Senior Theses

Drawing from philosophical, feminist, and legal frameworks, this thesis aims to reconceptualize our understanding of sexual violations. I suggest that rape and other sexual violations produce injuries unique from other forms of physical violence that must be addressed as an extension of a culture which objectifies, restricts the agency of, and shames women. It is argued that through the ability for survivors to bring a civil claim of negligence against their perpetrators following a sexual injury, pathways for restorative healing and cultural transformation are opened, and a more responsive legal standard for fault is created. This paper responds to theories …

Feminist Relational Theory, Christine M. Koggel, Ami Harbin, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

Accounts of human beings as essentially social have had a long history in philosophy as reflected in the Ancient Greeks; in African and Asian philosophy; in Modern European thinkers such as Mary Wollstonecraft, David Hume, Adam Smith, and Karl Marx; in continental philosophy; in pragmatism; in Indigenous thought, and in contemporary communitarian theories. It can be said, then, that the language of relational theory has taken a variety of forms. That relational theory is broad and captures various threads in the history of philosophy is captured in the main title of this special issue, Relational Theory. That this special …

Animals As Legal Beings: Contesting Anthropocentric Legal Orders, By Maneesha Deckha, Jodi Lazare

Articles, Book Chapters, & Popular Press

Scholarship on animal rights has long been dominated by the widely held idea that justice for nonhuman animals will not be achieved until they are granted legal personhood. In Animals as Legal Beings: Contesting Anthropocentric Legal Orders, Maneesha Deckha provides an alternative legal classification for nonhuman animals. “Beingness,” rooted in relational feminism, post-colonial theory, and critical animal studies, recognizes nonhuman animals’ inherent value, while avoiding some of the downsides to legal personhood, namely, its embeddedness in the imperialist liberal individualism that characterizes western legal systems. Given its anthropocentric nature, personhood must be displaced as the aspirational classification for animals. …

Law’S Contributions To The Mindfulness Revolution, Elizabeth F. Emens

Faculty Scholarship

These are phenomenally challenging times. Mindfulness is a tool that can help lawyers support themselves, each other, their clients, and their collaborators in the hard work needed to build community and take action. For these and other reasons, mindfulness has made major inroads into law and legal institutions. Law firms, law schools, and courthouses offer training in mindfulness meditation to support the cognitive clarity and emotional self-regulation necessary for the demanding work of analyzing problems, resolving conflicts, overcoming bias, and doing justice. A growing literature, from empirical social science to legal scholarship, catalogs these and other benefits of mindfulness for …

Reparations And The International Law Origin Story, John Linarelli

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Stoic Litigator, Leonard M. Niehoff

Articles

A variety of events over the past several years have renewed my conversations with some reliable old friends. And I mean very old. I refer here to the Stoic philosophers, most of whom did their thinking and writing around the turn of the Common Era.

The Stoics took their name from the central square of Athens, the Stoa Poikile, where Zeno is generally credited with founding the school in the early part of the third century BCE. Various philosophers over the next five centuries identified themselves as Stoics, so the label takes in lots of personalities and lots of territory. …

Not Just The Historians: Anne Orford’S Insights And The Suspicion Between International Law And Philosophy, Steven R. Ratner

Articles

International Law and the Politics of History is nothing short of cri de coeur directed at international lawyers and historians, the two disciplinary co-conspirators in international law's so-called turn to history. Rather than embracing what appears to be a mutually beneficial model of interdisciplinary collaboration, Anne Orford instead sees international lawyers as evading their responsibilities as decisionmakers-and indeed makers of both the discipline and its underlying norms-and historians as self-satisfied purveyors of truths that they themselves know are contested and instrumental. As much as she blames historians for acting with blinders, her main audience is international lawyers (mostly the academic …

Partisan Gerrymandering And The Right To Privacy, Ana Deckey

CMC Senior Theses

This paper argues that partisan gerrymanderers violate citizens’ right to privacy by using data containing sensitive information on citizens without a compelling state interest. It first details how partisan gerrymandering claims have been argued in Court in the past. Next, it discusses theories of the right to privacy, mainly exploring the tensions between James Madison’s writings on privacy and Warren and Brandeis’ famed The Right to Privacy. Then, I present originalist arguments for upholding the original meaning and principles of the right to privacy and the Fourth and Fourteenth Amendments before walking through case law related to privacy and …

Gender Unfreedom: Gender Diverse Perspectives From Digital India, Sara Bardhan

Journal of Feminist Scholarship

No abstract provided.

Against The Wind: James Boyd White And The Struggle To Keep Law Alive, Todd M. Stafford

Publications

No abstract provided.

Illiberalism And Administrative Government, Jeremy K. Kessler

Faculty Scholarship

Driven by the perception that liberal democracy is in a state of crisis across the developed world, political and legal commentators have taken to contrasting two alternatives: “illiberal democracy” (or populism) and “undemocratic liberalism” (or technocracy). According to the logic of this antinomy, once an erstwhile liberal-democratic nation-state becomes too populist, it is on the path toward illiberal democracy; once it becomes too technocratic, it is on the path toward undemocratic liberalism.

While the meanings of liberalism and democracy are historically and conceptually fraught, the contemporary discourse of liberal democratic crisis assumes a few minimal definitions. Within this discourse, liberalism …

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 misuse. A bridge carries us …