Law and Philosophy Commons^™

May 5, 2020: The National Day Of Prayer For The Coronavirus, Bruce Ledewitz

Hallowed Secularism

Blog post, “The National Day of Prayer for the Coronavirus“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 2, 2020: What Does Over-Caution Signify?, Bruce Ledewitz

Hallowed Secularism

Blog post, “ What Does Over-Caution Signify?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …

Competition Wrongs, Nicolas Cornell

Articles

In both philosophical and legal circles, it is typically assumed that wrongs depend upon having one’s rights violated. But within any market-based economy, market participants may be wronged by the conduct of other actors in the marketplace. Due to my illicit business tactics, you may lose profits, customers, employees, reputation, access to capital, or any number of other sources of value. This Article argues that such competition wrongs are an example of wrongs that arise without an underlying right, contrary to the typical philosophical and legal assumption. The Article thus draws upon various forms of business law to illustrate what …

Law Is What The Judge Had For Breakfast: A Brief History Of An Unpalatable Idea, Dan Priel

Articles & Book Chapters

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea. In this Essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. However, the Essay also shows that the idea is improperly attributed to the legal realists, as there are many references …

Equality's Understudies, Aziz Z. Huq

Michigan Law Review

Review of Robert L. Tsai's Practical Equality: Forging Justice in a Divided Nation.

The Mystery Of Law: A Critical Analysis Of H.L.A Hart’S The Concept Of Law, Stephen Mark Gray Ii

Honors Theses

This thesis explores the role of morality in law through a critical examination of the work of one of the most widely cited and renowned judicial scholars, H.L.A. Hart. His modified theory of positivism, which denotes that law and morality are separable and that legal rules may have any content, has had an enduring impact on the landscape of judicial thought in the last century. As Hart’s work has had an indelible hand in shaping analytical jurisprudence and as it exemplifies the antithesis of my argument, it will serve as a theoretical foil. From it, I hope to articulate my …

Lying And Cheating, Or Self-Help And Civil Disobedience?, Aditi Bagchi

Brooklyn Law Review

May poor sellers lie to rich buyers? This article argues that, under limited circumstances, sellers may indeed have a license to lie about their goods. Where sellers are losers under unjust background institutions and they reasonably believe that buyers have more than they would under just institutions, lies that result in de minimum transfers can be regarded as a kind of self-help. More generally, what we owe each other in our interpersonal interactions depends on the institutional backdrop. Consumer contract law, including its enforcement regimes, should recognize the social and political contingency of sellers’ obligations to buyers. In other contexts, …

April 25, 2020: The Disenchantment Of The Virus, Bruce Ledewitz

Hallowed Secularism

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

April 23, 2020: My Take On Government Abuse During The Pandemic, Bruce Ledewitz

Hallowed Secularism

Blog post, “ My take on government abuse during the pandemic“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 19, 2020: Our Hyper Partisanship Is Showing, Bruce Ledewitz

Hallowed Secularism

Blog post, “Our Hyper Partisanship is Showing“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 12, 2020: On Watching Ben-Hur, Bruce Ledewitz

Hallowed Secularism

Blog post, “On Watching Ben-Hur“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 8, 2020: What Is The Meaning Of The Virus, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Meaning of the Virus“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Community Land Trusts: Institutionalizing The Human Flourishing Theory Of Property, John A. Lovett

Cornell Journal of Law and Public Policy

Greg Alexander has made a powerful case that an owner of property in a free and democratic society will be required from time to time to provide resources, in ways appropriate to that owner, to support the development of other persons' human capabilities. In this essay, I focus attention on legal relationships epitomizing Alexander's human flourishing theory that owe their genesis in the collaborative work of community activists, who often began their efforts from positions of devout religious conviction, and public-spirited transactional lawyers. The product of that work is the property law institution known as the Community Land Trust (CLT).

Liberalism And The Commons, Hanoch Dagan

Cornell Journal of Law and Public Policy

It is a real privilege for me to participate in the celebration of Greg Alexander's enormous contribution to the scholarship and jurisprudence on property, which has enhanced our understanding of property in numerous ways. Alexander utilized almost every tool in a legal theorist's kit-notably: history, comparative law, and philosophical investigation-to study property and developed an innovative and nuanced theory of property. Property, for Alexander, has a core role in fostering human flourishing. A proper conception of property, he claims, must acknowledge that obligations and not just rights, and communities and not only individuals, take center stage.

Screened Out Of Housing: The Impact Of Misleading Tenant Screening Reports And The Potential For Criminal Expungement As A Model For Effectively Sealing Evictions, Katelyn Polk

Northwestern Journal of Law & Social Policy

Having an eviction record “blacklists” tenants from finding future housing. Even renters with mere eviction filings—not eviction orders—on their records face the harsh collateral consequences of eviction. This Note argues that eviction records should be sealed at filing and only released into the public record if a landlord prevails in court. Juvenile record expungement mechanisms in Illinois serve as a model for one way to protect people with eviction records. Recent updates to the Illinois juvenile expungement process provided for the automatic expungement of certain records and strengthened the confidentiality protections of juvenile records. Illinois protects juvenile records because it …

The City And The Soul: Character And Thriving In Law And Politics, Sherman J. Clark

University of Michigan Journal of Law Reform

This Article describes a way of thinking about law and politics that is ancient in origins but largely absent from modern legal scholarship. It poses a two-part question: how do our law and politics influence our character, and how does that in turn influence how well and fully we live?

Much legal scholarship asks how law can be more efficient and effective in making us richer, healthier, safer, and such. This is good: wealth, health, and safety are—or can be—good things. But material conditions are not the only things that make for a rich and full life. What also matters—and …

Dismantling The Master’S House: Toward A Justice-Based Theory Of Community Economic Development, Etienne C. Toussaint

University of Michigan Journal of Law Reform

Since the end of the American Civil War, scholars have debated the efficacy of various models of community economic development, or CED. Historically, this debate has tracked one of two approaches: place-based models of CED, seeking to stimulate community development through market-driven economic growth programs, and people-based models of CED, focused on the removal of structural barriers to social and economic mobility that prevent human flourishing. More recently, scholars and policymakers have turned to a third model from the impact investing community—the social impact bond, or SIB. The SIB model of CED ostensibly finds a middle ground by leveraging funding …

The Conceptions Of Self-Evidence In The Finnis Reconstruction Of Natural Law, Kevin P. Lee

St. Mary's Law Journal

Finnis claims that his theory proceeds from seven basic principles of practical reason that are self-evidently true. While much has been written about the claim of self-evidence, this article considers it in relation to the rigorous claims of logic and mathematics. It argues that when considered in this light, Finnis equivocates in his use of the concept of self-evidence between the realist Thomistic conception and a purely formal, modern symbolic conception. Given his respect for the modern positivist separation of fact and value, the realism of the Thomistic conception cannot be the foundation for the natural law as Finnis would …

Borrowing American Ideas To Improve Chinese Tort Law, Yongxia Wang

St. Mary's Law Journal

As China develops its modern jurisprudence it faces a choice between emulating the legal frameworks of civil law countries or common law countries. Thus far, the civil law path has allowed for a rapid expansion of Chinese tort law, but jurists have found difficulty in applying such generalized statutory schemes with the absence of supporting judicial interpretation. Cognizant of the differences between the public policy of common law countries and China, Vincent Johnson’s Mastering Torts (Měiguó Qīnquán Fǎ) provides this guidance through the lens of American tort law. The hornbook takes care to simplify the role of judicial …