Republicanism: Philosophical Aspects,
2015
University of Baltimore School of Law
Republicanism: Philosophical Aspects, Mortimer N.S. Sellers
All Faculty Scholarship
Republicanism is the doctrine that public power should always serve the common good of all those subject to its rule. This raises the question how to do so most effectively, either through particular policies or through constitutional structure (‘the republican form of government'). The republican philosophical tradition began with Plato and Aristotle, flowered in the writings of Marcus Tullius Cicero, and reappeared with the revival of learning in such authors as Niccolo Machiavelli, James Harrington, John Adams, and Immanuel Kant. More recently Philip Peuit, Jürgen Habermas, and others have returned to the republican conception of liberty as nondomination, and how …
The Limits Of Moral Argument: Reason And Conviction In Tadros' Philosophy Of Punishment (With Response By Victor Tadros),
2015
Suffolk University Law School
The Limits Of Moral Argument: Reason And Conviction In Tadros' Philosophy Of Punishment (With Response By Victor Tadros), Eric Blumenson, Victor Tadros
Suffolk University Law School Faculty Works
For generations, philosophers of punishment have sought to revise or combine established theories of punishment in a way that could reconcile the utilitarian aims of punishment with the demands of deontological justice. Victor Tadros’ recent work addresses the same problem, but answers it with an entirely original theory of punishment based on the duties criminals acquire by committing their crimes. The unexpected appearance of a new rationale for punishment has already inspired a robust dialogue between Tadros and his critics on many of the individual claims that, linked together, comprise his argument. This critique focuses instead on Tadros’ theory as …
The Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America,
2015
Columbia Law School
The Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America, David Pozen
Faculty Scholarship
This essay reframes the debate over the "growing disjunction" between legal scholarship and legal practice. Law review articles continue to make the world a better place, the essay stipulates. But are judicial opinions becoming less useful to students and scholars? A rigorous analysis and concrete prescriptions follow.
Intention And Value,
2015
Columbia Law School
Intention And Value, Joseph Raz
Faculty Scholarship
The paper sketches the role of reasons and intentions in leading to action with an intention, explaining the way possession of rational powers transforms the formation of intentions. Part One explains how when humans act with an intention they act in the belief that there is value in the action. Part Two explains the relative role of value and intention in “producing” the action, and relates their role to that of motivation.
Irb Licensing,
2015
Columbia Law School
Irb Licensing, Philip A. Hamburger
Faculty Scholarship
This chapter examines conflicting norms in the government's licensing of speech and the press on “human-subjects research” through institutional review boards (IRBs). It begins by discussing licensing and why the prohibition of it is so fundamental and prroceeds by providing an overview of the structure of institutional review board licensing. It then highlights the unconstitutionality of IRB laws, arguing that the use of IRBs violates the principles of academic freedom. It asserts that licensing of speech or the press was a method of controlling the press employed by the Inquisition and the Star Chamber, and the First Amendment unequivocally barred …
Jack Sammons As Therapist,
2015
University of Michigan Law School
Jack Sammons As Therapist, Jospeh Vining
Articles
Jack Sammons is well known as a pioneer in making the practice of law a field of academic study and teaching. He is also an original and penetrating analyst of law as such. This essay comments on his recent work, especially his putting the way we understand law and the way we understand music side by side and drawing out the parallels between them. Many will find his work a revelation.
Jurisprudence And (Its) History,
2015
Osgoode Hall Law School of York University
Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun
Osgoode Legal Studies Research Paper Series
It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.
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The Procedural Aspect Of The Rule Of Law: India As A Case Study For Distinguishing Concept From Conception,
2015
Claremont McKenna College
The Procedural Aspect Of The Rule Of Law: India As A Case Study For Distinguishing Concept From Conception, Karina T. Hwang
CMC Senior Theses
In this thesis, the concept of the procedural aspect of the Rule of Law will be distinguished from what I argue are conceptions that are falsely promulgated as concept. The different aspects of the Rule of Law—form, substance, and procedure— are helpful in making the distinction between concept and conception. Examining procedure within the Rule of Law is particularly important, and I define a broader set of requirements of the concept of the procedural aspect of the Rule of Law. This concept is applied to understand the Indian conception of the Rule of Law, a particularly interesting case that brings …
Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth,
2015
Duke Law School
Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie
Faculty Scholarship
This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.
Beyond Max Weber: The Need For A Democratic (Not Aristocratic) Theory Of The Modern State,
2015
University of Michigan Law School
Beyond Max Weber: The Need For A Democratic (Not Aristocratic) Theory Of The Modern State, William J. Novak
Articles
We cannot wish (or think) away the modern state any more than the postwar generation could wish away atomic power. And we cannot ignore the state in our efforts to come to terms with modern economy and society any more than we can ignore equally difficult concepts like modern capitalism or modern law. Attempts to try to reckon with modernity in lieu of hard thinking about such abstract concepts will probably end up deploying some overdetermined and cartoonish causation of a mainly biographical or interest-group sort. Or, like libertarianism, neoliberalism, or other popular anti-statist credos, they will leave us with …
Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought,
2015
University of Michigan Law School
Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield
Articles
It is now a commonplace among historians that American criminal jurisprudence underwent a dramatic change something like two-thirds to three-quarters into the last century. Roughly, this development is understood as a shift (or drift) from a more-or-less pure consequentialism to a "mixed theory" wherein retributivism played a major-at times, dominant-role. As the new paradigm remains intact, now approaching a half-century, the development qualifies as a significant historical fact. The fact applies not only to the history of justification for punishment but also to conceptions of the underlying principle of (basis for) responsibility. The two are rightly distinguished: for many scholars …
A Standard Of Global Justice,
2015
University of Michigan Law School
A Standard Of Global Justice, Steven R. Ratner
Book Chapters
This chapter presents the standard of justice that is used in this book to appraise international law. That standard is based on two core principles, or what the book calls pillars—the promotion of international and intrastate peace, on the one hand, and respect for the basic human rights of all individuals, on the other. The justice of international norms is determined by the extent to which they lead to a state of affairs involving peace and human rights, with some room for deontological considerations in limited situations. The chapter defends the choice of these two pillars. It elaborates on the …
Constructing Autonomy,
2015
Brooklyn Law School
Do Corporations Have Religious Beliefs?,
2015
Princeton University
Do Corporations Have Religious Beliefs?, Jason Iuliano
Indiana Law Journal
Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …
A Primer On Higher Education In The 21st Century: The University As A Whole And Contributions Made By Law Schools,
2015
Florida Agricultural and Mechanical University
A Primer On Higher Education In The 21st Century: The University As A Whole And Contributions Made By Law Schools, Ronald Griffin
Journal Publications
Citizens live within their unit's belief systems and superstitions. Truth is derived from family narratives, stories spun by old friends, outbursts from neighbours, barbers, religious figures, and priests. Certainty and comfort come from living in these spaces. But there is a wider world out there with characters doing things that conflict with routine. Higher education illuminates this realm. Legal education predicts what authorities will do about their antics and, while this is a laudable undertaking in the abstract, legal education should do more. It should arm the next generation with tools to cope with cultural ruptures, social confusion, dislocations, avatars, …
Denying Death,
2015
S.J. Quinney College of Law, University of Utah
Denying Death, Teneille R. Brown
Utah Law Faculty Scholarship
Terminal cancer patients are being kept in the dark about the purpose of their care. Several studies show that these patients undergo expensive and painful interventions because they are holding out hope for a cure, even when their physicians know that a cure is very unlikely. The current Medicare reimbursement system encourages this false hope by incentivizing physicians to medicate and operate on patients, rather than to talk about whether or why to do these things. Our culture also encourages this false hope by treating cancer as a war that must be won. As a result, patients are admitted to …
Autonomy, Residence, And Return,
2015
University of Richmond
Autonomy, Residence, And Return, David Lefkowitz
Philosophy Faculty Publications
This article argues that those unjustly displaced from a particular territory T cannot involuntarily lose their rights to reside there, or, as a consequence, their rights of return to it, even if they develop territorially grounded conceptions of the good where they now reside. The contrary position fails to accord the unjustly displaced the respect due to them in virtue of their personal autonomy. Facts commonly alleged to justify the supersession of rights of return to T only provide evidence that the unjustly displaced have abandoned their rights to reside there, or would do so if given a just opportunity …
Giving Up On Moral Truth Shall Set You Free: Walzer On Relativism, Criticism, And Toleration,
2015
University of Richmond
Giving Up On Moral Truth Shall Set You Free: Walzer On Relativism, Criticism, And Toleration, David Lefkowitz
Philosophy Faculty Publications
Morality, Michael Walzer contends, is plural, subjective, and concrete, a multitude of moralities or moral ways of life created over time by the members of distinct historically situated communities. This entails that we must abandon the familiar notion of moral truth, according to which at least some claims of the form ‘it is wrong to ϕ’ are true in virtue of their tracking or reflecting objective and universal moral principles binding on all moral agents as such. Many of Walzer’s critics take this implication to constitute a reductio ad absurdum refutation of Walzer’s relativist meta-ethics. But what precisely do we …
Blame And The Criminal Law,
2015
University of Richmond
Blame And The Criminal Law, David Lefkowitz
Philosophy Faculty Publications
Many retributivists appear to presume that the concept of blame that figures in their accounts of just punishment is the same one people employ in their interpersonal moral relationships. David Shoemaker contends that this presumption is mistaken. Moral blameworthiness, he maintains, tracks only the meaning of a person's action––his reasons for acting as he did––while criminal blameworthiness, which he equates with liability to punishment, tracks only the impermissibility of an agent's action. I contest the second of these two claims, and in doing so defend the retributivists’ presumption. First, I argue that the purpose of a criminal trial can be …
Concept And Contract In The Future Of International Law,
2015
Touro Law Center
Concept And Contract In The Future Of International Law, John Linarelli
Scholarly Works
This is an article written for a symposium on Joel Trachtman’s book, The Future of International Law. I first deal with the contractarian features of Trachtman’s approach to understanding international law. Using the tools of new institutional economics and constitutional economics, Trachtman seeks to describe the features of an international legal system. This is positive political theory or at least relates substantially to the methods of positive political theory. I explore a different approach, one connecting to normative political theory. In its ambitious sense, my approach would see international law as a form of moral argument, but in its modest …
