Law and Philosophy Commons^™

Complicity And Lesser Evils: A Tale Of Two Lawyers, David Luban

Georgetown Law Faculty Publications and Other Works

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: …

Hannah Arendt Meets Qanon: Conspiracy, Ideology, And The Collapse Of Common Sense, David Luban

Georgetown Law Faculty Publications and Other Works

A June 2020 survey found one in four Americans agreeing that “powerful people intentionally planned the coronavirus outbreak.” In fall 2020, seven percent said they believe the elaborate and grotesque mythology of QAnon; another eleven percent were unsure whether they believe it. November and December 2020 found tens of millions of Americans believing in election-theft plots that would require superhuman levels of coordination and secrecy among dozens, perhaps hundreds, of otherwise-unconnected and unidentified miscreants.

Conspiracy theories are nothing new, and they raise a question that preoccupied Hannah Arendt in The Origins of Totalitarianism: whatever happened to common sense? Arendt …

Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer

Touro Law Review

No abstract provided.

Memory, Moral Reasoning, And Madison V. Alabama, Elias Feldman

Touro Law Review

No abstract provided.

Religious Roots Of Corporate Organization, Amanda Porterfield

Seattle University Law Review

Religion and corporate organization have developed side-by-side in Western culture, from antiquity to the present day. This Essay begins with the realignment of religion and secularity in seventeenth-century America, then looks to the religious antecedents of corporate organization in ancient Rome and medieval Europe, and then looks forward to the modern history of corporate organization. This Essay describes the long history behind the entanglement of business and religion in the United States today. It also shows how an understanding of both religion and business can be expanded by looking at the economic aspects of religion and the religious aspects of …

Are We (Americans) All International Realists Now?, Harlan G. Cohen

Scholarly Works

Is American international law distinctly legal realist? The claim is often made, but underexplored. What would it mean for American international law scholarship and practice to be legal realist in its orientation? Where would such an orientation come from, and what do those origin stories mean for current international law work? Are there common realist-inspired approaches within the varied schools of American international law scholarship? Does wielding those approaches produce distinctly American views on international law doctrine, its operation, or its function? And if American international law scholarship and practice is, in these ways, somewhat distinct, what does it mean …

J. Krishnamurti And The Contemporary World Crises: Scholars’ Panel Two Session Four, Ashwani Kumar, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this presentation, I describe my journey with Krishnamurti’s existential inquiry at a personal level and in the context of my academic life. I was introduced to Krishnamurti’s work during my Bachelor of Education program in India in 2004. While Krishnamurti was quite peripheral to the curriculum, he became a central focus of study for me during the Bachelor of Education, Masters of Education, and during my PhD. His insights have had a deep impact on how I view personal, educational, and social problems and how I approach teaching and research. His work is central to the four pedagogical and …

J. Krishnamurti And The Contemporary World Crises: Introduction To The Conference Proceedings, Ashwani Kumar, Nayha Acharya

Articles, Book Chapters, & Popular Press

We, Ashwani Kumar and Nayha Acharya, are excited and honoured to share the conference proceedings of the J. Krishnamurti and the Contemporary World Crises International Online Conference. The conference took place at the end of February 2021. It was free for anyone to attend. In our introduction we share how the conference was conceptualized, why J. Krishnamurti is a relevant focus in today’s world, how the conference unfolded, and how attendees responded to this conference.

I, Ashwani Kumar, have spent much of my academic journey studying, applying, teaching, and engaging in dialogues about J. Krishnamurti’s insights into human consciousness and …

Transforming Restorative Justice, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

From the global pandemic to the Black Lives Matter, the Me Too/Times Up and Indigenous reconciliation and decolonisation movements, the systemic and structural failures of current social institutions around the world have all been brought to our collective consciousness in poignant, painful and urgent ways. The need for fundamental social and systemic transformation is clear. This challenge is central to the work of dealing with the past in countries undergoing transition and in established democracies confronting deep structural inequalities and injustices. Rooted in lessons from the application of restorative justice across these contexts, this article suggests that grounding restorative justice …

The Effects Of Police Officer Ideology On Opinions Of Marijuana Legalization, Decriminalization, And Medical Marijuana, Erin Alpandinar

Honors Capstones

No abstract provided.

Shareholder Primacy And The Moral Obligation Of Directors, Mark J. Loewenstein, Jay Geyer

Publications

One of the most written-about and important topics in corporate law is the fiduciary obligations of corporate directors. Increasingly, critics of American capitalism have urged that corporations, and implicitly, corporate directors, act in a more socially responsible fashion and thus eschew the notion that shareholder primacy is the exclusive guide to a director’s fiduciary duty. Under this view, directors must consider the effect of their actions on “stakeholders” other than shareholders and be guided by morality—doing the right thing—when making business judgments.

When directors move away from shareholder primacy, however, decision-making becomes more difficult and problematic. This article analyzes the …

Reevaluating Legal Theory, Jeffrey A. Pojanowski

Journal Articles

Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology, as well as a response to the longstanding objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the …

Microwaving Dreams? Why There Is No Point In Reheating The Hart-Dworkin Debate For International Law, Jason A. Beckett

Faculty Book Chapters

A critique of attempts to transpose Hart and Dworkin's legal theories to international law. I demonstrate why neither approach can provide insights into international law. Hart and Dworkin are institutional theorists, their methodologies are anchored by the need to justify the exercise of socially centralised violence. International law lacks both institutions and centralised violence, and the stabilising force these bring; it is radically indeterminate. Attempts to suppress this indeterminacy have resulted in international lawyers fragmenting into communities of practice, united by their eschatological faith in the international community. I challenge this faith.

Harry Potter And The Gluttonous Machine, Jason A. Beckett

Faculty Journal Articles

In this paper, I outline the colonial structure of international law, and examine the short decline or suppression of its coloniality in the so-called ‘era of decolonisation’, then illustrate its resurgence in the modern neo-colonial order. PIL has split into two separate systems. One includes, and is justified by, the heroic tales of human rights and ‘Humanity’s Law’. The other is the actualised system of International Economic Law (IEL), an order driven by the need of the over-developed states to plunder the under-developed states’ resources and labour, to subsidise the luxury to which we have grown accustomed. One purports to …

Can Sandel Dethrone Meritocracy? Comment On M. Sandel's The Tyranny Of Merit, Robert L. Tsai

Faculty Scholarship

This is an invited review essay of Michael Sandel, The Tyranny of Merit: What's Become of the Common Good? (FSG 2020), for the inaugural issue of The American Journal of Law and Inequality (R. Kennedy, M. Minow, C. Sunstein, eds.). Sandel makes three principal arguments: (1) meritocracy is deeply flawed because it worsens inequality and fills meritocracy's winners with hubris and losers with shame; (2) universities should introduce a lottery into the admissions process; and (3) this reform, coupled with increased emphasis on the dignity of labor, will repair the politics of resentment that now roil our country.
/="/">
/="/" …

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Journal Articles

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a melange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage.

The reason for the methodological moral reticence is easy to …

“Let Those Who Have An Experience Of Prison Speak”: The Critique & Praxis Of The Prisons Information Group (1970-1980), Bernard E. Harcourt

Faculty Scholarship

As the May ’68 revolution reached a boiling point, a remarkable assemblage of philosophers, writers, and incarcerated persons, doctors, nurses, social workers, and sociologists, activists and organizers, and militants in France turned their attention to the problem of the prison. At a time when prisons were mostly hidden from view, practically impenetrable in France to outsiders, at a time long before we recognized mass incarceration in countries like the United States, the Prisons Information Group (the Groupe d’information sur les prisons or the “GIP”) coalesced to spotlight the travesty of justice that is the prison – one that continues unabated …

The Critique And Praxis Of Rights, Bernard E. Harcourt

Faculty Scholarship

The critique of rights has played a crowning role in critical philosophy. From Hegel to Marx, to Foucault and beyond – Duncan Kennedy, Christoph Menke, the contributors to this Symposium – the critique of rights has always represented an essential and inescapable step in the critique of modern Western society. The reason is plain: conceptions of natural rights, human rights, and civil rights have been central to the founding of modern political thought (from Hobbes, Locke, and Wollstonecraft forward), to the birth and flourishing of legal and political liberalism (in Rawls and Habermas), to the establishment of regimes of civil …

Posthuman Dignity And The Problem Of The Body, Zachary R. Calo

Scholarly Works

This essay examines the anthropology of transhumanist and posthumanist thought, focusing on human dignity and the role of embodiment. It posits that posthumanism views the body as a barrier to achieving dignity rather than an intrinsic site of dignity, advocating for transcending biological limits towards a more dignified existence. The discourse contrasts transhumanist and bioconservative perspectives on dignity, emphasizing that dignity is not an inherent trait but is achieved through technological enhancement and the redefinition of embodiment, impacting contemporary ethical considerations in biotechnology.

Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine

Scholarly Works

Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …