The Importance Of 'The Gap',
2016
Cornell Law School
The Importance Of 'The Gap', Emily Sherwin
Cornell Law Faculty Publications
One of the central dilemmas of law is what Larry Alexander has called "the gap:" general, determinate rules have significant benefits from the forward-looking perspective of a lawmaker, but generate outcomes that appear wrong from the perspective of individual actors. In this 25-year retrospective of Alexander's initial article on the gap, I examine a possible way out of the dilemma of the gap, and conclude that it does not work.
The Legitimacy Of International Law,
2016
University of Richmond
The Legitimacy Of International Law, David Lefkowitz
Philosophy Faculty Publications
The conduct of international affairs is subject to three kinds of normative standards. The first of these is prudence or rational self-interest, and its most common manifestation in international affairs involves reference to a state's national interest as a basis for defending or critiquing its international conduct. Justice provides a second metric for assessing the international conduct of states, and sometimes other actors, and a set of normative concepts including freedom, equality and fairness with which to argue for or against particular acts or policies. Law, including both international law and the foreign law of particular states, provides the third …
Should The Law Convict Those Who Act From Conviction? Reflections On A Demands-Of-Conscience Criminal Defense,
2016
University of Richmond
Should The Law Convict Those Who Act From Conviction? Reflections On A Demands-Of-Conscience Criminal Defense, David Lefkowitz
Philosophy Faculty Publications
How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not (morally) wrongful …
Criminals Behind The Veil: Political Philosophy And Punishment,
2016
Saint Louis University School of Law
Criminals Behind The Veil: Political Philosophy And Punishment, Chad Flanders
All Faculty Scholarship
There is evidence everywhere that our criminal justice system is undergoing a crisis of practice. Increased police violence and the concomitant distrust of police in many communities, fear of aggressive enforcement tactics more generally, worries about widespread governmental surveillance and, above all, a concern with overcriminalization and mass incarceration-these are the dreary and familiar stuff of daily headlines. But, this crisis of practice in tum reflects a deeper crisis of how we theorize about criminal law. We lack, for the most part, any worked-out theory of what the policing and processing of crime should look like. Nor do we have …
Customary International Law: A Reconceptualization,
2016
Brooklyn Law School
Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker
Brooklyn Journal of International Law
The current state of international law is one of deep confusion over the role of state practice and opinio juris within the customary element. The debate between adherents of “modern custom” versus those of “traditional custom” has resulted in deep uncertainty and confusion. New theories of customary international law have proved inadequate in clarifying the current state of the field. Confusions over the meanings and relationships between state practice and opinio juris aside, current approaches are all also flawed due to a heavily state-centric bias that fails to take into account the very real affects that norm-generating transnational actors have …
Taking Constitutional Identities Away From The Courts,
2016
Brooklyn Law School
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Brooklyn Journal of International Law
In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …
Confounding Ockham's Razor: Minilateralism And International Economic Regulation,
2016
Brooklyn Law School
Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee
Brooklyn Journal of Corporate, Financial & Commercial Law
In Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft, Professor Chris Brummer embraces the complexity of the global economic system and its regulation by exploring the emerging role and dominance of varying strands of economic collaboration and regulation that he collectively refers to as “minilateralism.” In describing the turn toward minilateralism, Brummer notes a number of key features of this new minilateral system, including a shift away from global cooperation to strategic alliances composed of the smallest group necessary to achieve a particular goal, a turn from formal treaties to informal non-binding accords and other …
Armed Drones: An Age Old Problem Exacerbated By New Technology,
2016
Pomona College
Armed Drones: An Age Old Problem Exacerbated By New Technology, Grant H. Frazier
Pomona Senior Theses
The purpose of this thesis is to examine the history behind and the use of militarized drones in modern day conflicts, and to conclude whether the use of these machines, with special attention to the United States, is legal, ethical, and morally defensible. In achieving the aforementioned goals, shortcomings of current policy surrounding drone warfare will be highlighted, acting as the catalyst for a proposal for changes to be made to better suit legal, ethical, and moral considerations. The proposal of a policy to help us work with armed drones is due to the fact that this thesis acknowledges that …
Why Is It Good To Stop At A Red Light_ The Basis Of Authority And Obligation,
2016
University of Oklahoma College of Law
Why Is It Good To Stop At A Red Light_ The Basis Of Authority And Obligation, Brian Mccall
Faculty Articles
Throughout history, some have questioned whether the authority exercised by some over others is consistent with human nature. Is it possible for a law made by one human being to bind the conscience of another, or is such a claim merely tyranny? If such a power to bind to laws made by humans is justified, what is its scope? The answers to these related questions explored in this Article are both descriptive and normative. This Article explains the nature of authority and the extent of the obligation to obey the law as well as explains how the architecture of natural …
A Hedgehog's Unity Of Value,
2016
Columbia Law School
A Hedgehog's Unity Of Value, Joseph Raz
Faculty Scholarship
The paper examines various interpretations of Dworkin’s thesis of the Unity of Value, as expressed and defended in his book Justice for Hedgehogs. Dworkin’s arguments for various aspects of his unity of value thesis are relied on in interpreting the which is then compared with versions of value pluralism.
Comments On The Morality Of Freedom,
2016
Columbia Law School
Comments On The Morality Of Freedom, Joseph Raz
Faculty Scholarship
The paper mixes comments on the ambitions that motivated writing The Morality of Freedom with observations on comments on the book, made at a conference in Jerusalem in 2016, by Japa Pallikkathayil, Avishai Margalit, Michael Otsuka, Jon Quong, Daniel Viehoff, Asaf Sharon and Arudra Burra. It acknowledges some of the critical points made while resisting others. Its strives to combine clarification of some of the themes in the book with recognition that its ideas require further development, and can be developed in various directions.
Toward A Political Theory For Private International Law,
2016
Touro Law Center
Toward A Political Theory For Private International Law, John Linarelli
Scholarly Works
Private international law presents a dilemma for legal and political philosophy. Legal and political philosophers have ignored private international law, with only a few scattered attempts to evaluate its claims. Private international law offers a powerful set of counterexamples that put into serious doubt attempts to link law’s authority only or primarily to relationships between states and citizens. No society, state, or other practice-mediated relationship can serve as grounds for the authority of private international law to persons to whom it applies but who are outside of such relationships. Private international law affects the normative situations of persons entirely outside …
Value And The Weight Of Practical Reasons,
2016
Columbia Law School
Value And The Weight Of Practical Reasons, Joseph Raz
Faculty Scholarship
Assuming that the value of options (actions, activities, or omissions) constitutes the proximate reason for pursuing them, this chapter considers whether we have reason to promote or maximise value. A proper argument would require establishing a negative, but raising doubts is less demanding — explaining some aspects of the relation between values and reasons that enable us to dispense with the doubtful thesis by illustrating alternative relations between values and reasons. Theses that value should be promoted are accompanied by a way of determining the strength of reasons (the stronger reason promotes more value). This chapter develops theoretical doubts about …
Driverless Cars And The Much Delayed Tort Law Revolution,
2016
Columbia Law School
Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski
Faculty Scholarship
The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely …
The Guise Of The Bad,
2016
Columbia Law School
The Guise Of The Bad, Joseph Raz
Faculty Scholarship
My topic is the possibility of acting in the belief that the action is bad and for the reason that it is, as the agent believes, bad. On route, I examine another question – namely whether agents can, without having any relevant false beliefs, perform actions motivated by the badness of those actions. The main worry is the compatibility of action for the sake of the bad with the thesis of the Guise of the Good (roughly that actions undertaken with an intention to perform them are undertaken because they are, as the agents see things, good in some respects). …
Ross Douthat’S Critique Of Modernity,
2015
Duquesne University
Ross Douthat’S Critique Of Modernity, Bruce Ledewitz
Hallowed Secularism
Blog post, “Ross Douthat’s Critique of Modernity“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
December 25, 2015: Merry Christmas 2015,
2015
Duquesne University
December 25, 2015: Merry Christmas 2015, Bruce Ledewitz
Hallowed Secularism
Blog post, “Merry Christmas 2015“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
December 17, 2015: Underlying Consensus?,
2015
Duquesne University
December 17, 2015: Underlying Consensus?, Bruce Ledewitz
Hallowed Secularism
Blog post, “Underlying Consensus?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
December 9, 2015: The Spirit Of Doom,
2015
Duquesne University
December 9, 2015: The Spirit Of Doom, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Spirit of Doom“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
December 5, 2015: Islamic Terrorism, Christian Terrorism And Jewish Terrorism,
2015
Duquesne University
December 5, 2015: Islamic Terrorism, Christian Terrorism And Jewish Terrorism, Bruce Ledewitz
Hallowed Secularism
Blog post, “Islamic Terrorism, Christian Terrorism and Jewish Terrorism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
