The paper, written for a research handbook, critically surveys some fundamental philosophical, historical, and doctrinal issues in the crime of aggression. The two introductory sections set the theoretical issues in the context of Russia’s invasion of Ukraine, and explain the origins of criminalizing aggression under the heading of “crimes against peace.” Section 3 explores an ambiguity between aggression as first use of force and aggression as unprovoked use of force, while section 4 discusses the doctrinal distinction between acts of aggression (...) and wars of aggression. Sections 5 and 6 turn to the theory of aggression. Section 5 examines modern versus early modern just war theorists’ views of just cause. Section 6 explores various theories of what exactly makes aggressive war so evil that it belongs in the pantheon of core crimes, side by side with genocide, crimes against humanity, and other war crimes. The basic question is whether aggression is fundamentally a crime against states, a crime against human rights, or a crime against peace itself. I reject the first, statist, version, and endorse the human rights version. I examine three versions of the view that aggressive war is fundamentally about its human costs: that aggressive wars lead to atrocities (Trainin); that aggressive wars lead more generally to unjustified killings (Dannenbaum); and that aggressive wars lead to both unjustified killings by the aggressor, and to unnecessary killings that include the justified killings of aggressors’ troops by defenders (Mégret). As for crimes against peace, I argue that this theory of aggression’s evils comes in two “flavors,” one of which has justly been criticized by postcolonial writers, and one of which I think is legitimate. The former originates in Judge Pal’s famous dissenting opinion in the IMTFE, and argues that criminalizing aggression is a move by colonial powers to freeze the oppressive status quo. The more legitimate version is that in an age of catastrophically destructive weapons, the risks of escalation in armed conflict –the threat that conflicts will spiral into world wars–are simply too great in human terms. Thus, the legitimate version of “crimes against peace” is part and parcel of the human rights analysis. The final sections break new ground. Section 7 considers whether aggression is solely a leadership crime. Everyone agrees that it would be wrong to punish ordinary soldiers for the crime of aggression launched by their leaders. The questions is why, and it is not easy to answer. Examining it brings us to a contemporary dispute over which leaders can be prosecuted: only those who control or direct the aggressive policies (as per the ICC’s Rome Statute), or others as well, who “shape or influence” the policy without necessarily directing it (as the customary rule used to be formulated). I argue against any narrowing of the leadership clause. Section 8 explores the “paradox of immunity”: Under the legal principle of sovereign immunity, apex leaders are immune from prosecution in the courts of another state. But under the narrow leadership clause, only apex leaders can be prosecuted. Here I argue for a surprising conclusion: that in fact there never was a customary rule of immunity for the crime of aggression. If so, the paradox of immunity disappears. This resolution also helps cut the Gordian knot of a current debate about whether a relatively small subset of states (the EU, perhaps) can form an aggression tribunal and call it “international.”. (shrink)

Textualists claim that they follow statutory text. This Article argues that, in practice, textualists often create meaning rather than find it. Deploying the analytics of linguistic philosophy, this Article takes a deep dive into textualist methodology. The philosophy of language reveals what legal scholarship has left submerged: The very choice of text can put the thumb on the scales of any interpretation. When one pulls a term out of a statute and isolates it from the rest of the text (what (...) I call “isolationist” method), this decontextualization offers the opportunity for adding and subtracting meaning from the statute by “pragmatic enrichment.” Only by working out these enrichments is it possible to assess whether the hypothesized meanings are cancelled by the rest of the statute. In the end, we need to ask of all interpreters, including textualists, whether they are making rather than finding the meaning of statutes. (shrink)

Donald Trump has brought new attention to the mendacity of politicians. Both major national newspapers have reported tallies of Trump's false and misleading claims. On November 14, 2017, The Washington Post reported that in the 298 days that President Trump has been president, he had made 1,628 false or misleading claims, telling them at a rate of nine per day in the thirty-five days prior to November 14. Trump, the Post reported, has made fifty false or misleading claims “that he (...) as repeated three or more times.” The Post also catalogued scores of “flip-flops” from Trump. In general, from 2016 into 2017, journalistic political fact-checking has surged in frequency and scope. Newspapers and magazines regularly run articles, columns, and features on Trump's record-breaking lying. Though the frequency and blatancy with which Trump lies is exceptional, he is not the only elected political leader active today whose mendacity has been documented. Catalogues exist for Speaker of the House Paul Ryan, Vice President Mike Pence, Senate Majority Leader Mitch McConnell, Senate Minority Leader Chuck Schumer, and Senate Minority Leader Nancy Pelosi. Trump cabinet members and White House spokespeople have also come under scrutiny for their untruthfulness. Clearly, not all mendacity is of equal concern. Some mendacity is not even troubling at all. Small white lies told to protect another's feelings about a trivial matter are at one end of the scale, while serial deception to defraud investors out of their life savings or to sustain two families, each kept secret from the other, are at another. Similarly, political hype or bluster may not be troublesome, whereas lying about criminal activity or scientific fact seems clearly so. Most political mendacity falls into a middle ground. Understanding when and how middle-ground mendacity is dangerously harmful is crucial. Decrying all mendacity is overkill, yet narrowing the field is difficult. Press tallies and online databases vary in what they count as lies. Entries run the gamut of fibs to whoppers, fudges to half-truths or falsehoods. Yet even calibrated catalogues of mendacious statements from politicians do not identify when and how mendacity from politicians should alarm us. Fact-checkers spot mendacity and sometimes put it on a scale of deceptiveness, but this is not the same as identifying harmful mendacity. With mendacity in politics receiving so much attention, it is important to figure out which mendacity is dangerous and why. Lawyers, I will demonstrate, have a particular expertise in parsing mendacity. They can and should put that expertise to use in identifying the political mendacity that is particularly problematic for the health of representative democracy. (shrink)

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s (...) Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger Sherman. There is a lot to work with. Gouverneur Morris is the one “forgotten founder” who really shouldn’t be for-gotten. The classic picture of Gouverneur Morris is actually a joint picture painted by Charles Willson Peale in 1783. Gouverneur Morris is on the left, and Robert Morris is on the right. They weren’t relatives, despite the shared last name, but they were very close. Gouverneur Morris and Robert Morris were business partners during the Revolutionary War. Robert Morris, who is kind of the Jeff Bezos of the 1780s, was as close as the United States had to a president during the Revolutionary War. He was the head of finance and Gouverneur Morris was his number two. I will be focusing today on Gouverneur Morris’s work on the Committee of Style at the end of the Federal Constitutional Convention. As the Federal Constitutional Convention is drawing to close, it’s hot and everybody’s tired. It has been four weeks since they had a draft of the Constitution, which was composed by the Committee of Detail. There has been a month of debate and votes up, votes down. There’s no draft constitution, even though the Convention is near the end of its work. So, the delegates together form a committee—the Committee of Style and Arrangement—and over three days this committee drafts the Constitution with Morris as the lead drafter. And then, very hurriedly, the Convention reviews it, almost completely adopts it, and goes home. The work of the Committee is supposed to be polishing the Constitution—taking what’s already been agreed to and putting it in a final document. But what I argue in a recently published article in the Michigan Law Review— the basis of this talk—is that, as the drafter on the Committee of Style, Morris made fifteen substantive changes. As you’ll see, most of them are very subtle, but they have incredible consequence: He carefully picked words to advance particular substantive ends. With the passage of time, we have lost the meaning of much of this text. But if we are going to read the Constitution clearly—and as it was ratified at the time—we must recover the meaning of the texts that, on fifteen occasions, he changed. This is particularly important at a time when four members of the Supreme Court are originalists and focus on the original meaning of these words. One part of this talk is about the changes he made. There were a number of basic causes Gouverneur Morris tried to advance during the Constitutional Convention, and he lost a lot of those battles in the months before he became the Committee of Style’s drafter. He was a big government person. He was probably, with the possible exception of Alexander Hamilton, the strongest nationalist at the Convention. He was a big protector of private property. He was a champion of the judiciary and judicial review, and he was unquestionably the fiercest opponent of slavery at the Convention. And he was, with James Wilson, the Convention’s leading champion of the Presidency. In each of those areas, on the Committee of Style, he made very subtle changes to advance his goals. If you read the text in accordance with the meaning of the words in 1787, you’ll see how it reflects his meanings, what he wanted to achieve. Taken all together, with these changes, Morris created the Federalist Constitution. That will be the subject of the first part of this talk. But most originalists today read the Constitution very differently. They see the Constitution as a Jeffersonian Republican Constitution, not as a Federalist Constitution. And the reason why that occurred is the topic of the final part of this talk. I will discuss how the Constitution’s original meaning was lost. My thesis here is a simple one, but an important one for constitutional law. At the Convention, the Federalists won the battle over the Constitution’s text. In the years that followed, however, they lost the battle over what that text means. (shrink)

The idea of a "public sphere"--a shared, ideologically neutral domain where ideas and arguments may be shared, encountered, and contested--serves as a powerful imaginary in legal and policy discourse, informing both assumptions about how public communication works and ideals to which inevitably imperfect realities are compared. In debates about feasible and legally permissible content governance mechanisms for digital platforms, the public sphere ideal has counseled attention to questions of ownership and control rather than to other, arguably more pressing questions about (...) systemic configuration. This essay interrogates such debates through the lens of infrastructure, with particular reference to the ways that digital tracking and advertising infrastructures perform systemic content governance functions. (shrink)

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective (...) creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why change and choice are the norm in law too. Rarely is law just about ferreting out some isolated, clear, but abstruse legal command. In jazz and legal settings, relative assessments of strength are more commonly apt than are expectations of a single correct answer or simple binary right-versus-wrong determinations. There is a world of difference between claims that law simply provides determinate answers, versus claims that law constrains and guides what remain choices. Much as jazz improvisers must be highly sensitive to the surrounding constrained choices of others, legal analysis of context and consequences of legal choices, with substantial attention to others’ roles and competence, should always be part of legal actions. This different way of thinking about law’s nature helps illuminate and critique both major methodological legal divides, enduring jurisprudential debates, and several cutting-edge case studies. Those case studies include standing law’s transformation, including the 2021 TransUnion standing decision, ongoing battles over what waters are protected by the Clean Water Act, debates over textualist methodology’s claims of constraint, and increasing judicial reliance on the “major questions doctrine” with shifts away from the familiar deferential Chevron framework. Improvising musicians must ensure their choices musically fit with governing forms, practices, and others’ choices. Similarly, the Article closes by illuminating why, to further rule of law values and check power abuses, legal actors should always assess the consequential congruence of their tenable choices with surrounding law, giving substantial weight to statutory policies and linked effects analysis by agencies. (shrink)

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially (...) limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison’s political and constitutional theory the great story of the Federalist, and Federalist 10, in particular, has long been “in the center of constitutional debate.” But careful study of essays 78 through 83 reveals that Hamilton had an innovative and consequential vision of the law and the judicial role that deserves at least as much attention as Madison’s contributions. (shrink)

Much ink has already been spilled on the relationship of constitutional originalism to precedent. The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil (...) Amar comes to mind. And there are many other contributions to the debate. Opinions range from the view that precedent should invariably prevail over the original public meaning of the constitutional text to the polar opposite view, that precedent must give way to original meaning in almost every case. Here is the roadmap. Part I provides a brief introduction to contemporary originalism. Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. (shrink)

Women’s entry into the legal academy in significant numbers—first as students, then as faculty—was a 1970s and 1980s phenomenon. During those decades, women in law schools struggled: first, for admission and inclusion as individual students on a formally equal footing with male students; then for parity in their numbers in classes and on faculties; and, eventually, for some measure of substantive equality across various parameters, including their performance and evaluation both in and in front of the classroom, as well as (...) in the quality of their experiences as students and faculty members and in the benefits to be reaped from their tenure. This part of the story of women’s entry into the legal academy in the 1970s and 1980s—a story of attempted admission, then inclusion, then integration and assimilation, and then, finally, equality—is now a familiar one, at least in broad outline. It is not, in its entirety, an uplifting story. According to a raft of articles produced by women law students in the 1980s, 1990s, and 2000s, women law students during those decades participated less in the classroom, were called on and responded to differently when they did participate, suffered from more law-school-induced anxiety disorders and other mental health issues, graduated with lower GPAs and less law review experience, published fewer notes and filled fewer editorial positions on those journals, held fewer leadership positions overall while in law school, and had far more difficulties connecting with mentors, teachers, and would-be recommenders among the faculty than male students. Women law professors during those decades were tenured at significantly lower rates than men and, particularly at high prestige schools and at schools with fewer female faculty among the tenured ranks, were hired at lower rates that did not reflect their number in the pool of qualified applicants, had trouble asserting or maintaining authority in the classroom or being perceived as having authority, taught lower-prestige courses and received low teaching evaluations, and, like their students, were published far less frequently in the major and most prestigious law reviews. Much of this, albeit not all, has not changed much for either students or faculty. As women in law schools enter the posttenure and midcareer phase, many of the old problems persist while new ones appear: women faculty are invited to participate on panels less often than men, and both women students and faculty are underrepresented as authors in law reviews. Although gender-neutral parental leave is now available to faculty at most law schools, many such policies are still ad hoc. There is considerable worry, although no hard evidence, over whether men disproportionately use the time off to write rather than care for children. Women are still disproportionately overrepresented in some fields and underrepresented or unrepresented in others, and those fields correlate in unsurprising ways with levels of prestige: the more women in a field, the less prestigious. As elsewhere in the workforce, women faculty in legal education suffer from sexual harassment, most of which is unremedied. Women still suffer a pay gap in law schools that remains unaddressed at most universities, as it does elsewhere in academia. There is a sizeable literature on these depressing phenomena that stubbornly do not seem to abate. In these comments, however, I want to focus on another, less appreciated, part of the story of women’s entry into the legal academy in the 1970s and 1980s: the emergence of a body of scholarship—sometimes called feminist legal theory—produced by some of these women legal scholars over the same time period. The story I want to focus on, in other words, is not that of second- or third-wave women’s struggles within the academy, either for admission, acceptance, assimilation, or equality in law schools. Rather, this Article focuses on the story of the scholarship some of those second-wave assimilated women produced once they got there. Feminist jurisprudence, understood largely as scholarship on issues pertaining to gender equality, was launched in the 1970s, endures today, and continues to shape debates. Feminist legal theory, however, was in effect a subfield within feminist jurisprudence and, as its name implies, was an attempt to fashion a broad- based theoretical account of the relationship of law in liberal legal regimes to women’s subordination, patriarchy, and gender and sexual inequality— particularly in a post–civil rights era, when women enjoyed broad access to rights of formal equality, reproductive liberty, and liberal antidiscrimination law. Feminist legal theory so understood—a body of scholarship in search of a theoretical understanding of the relation of law to women’s subordination or, more simply, of law and patriarchy—was birthed in the 1970s, nurtured in the 1980s, and matured in the 1990s. I suggest in this Article that it is now seemingly in decline, and may soon disappear altogether. The reasons for this trajectory, I believe, are to date unexplored. Some reasons are fairly self-evident. Feminist legal theory was a product of three time-specific factors peculiar to the 1970s and 1980s: it reflected the political and the legal struggles of second-wave feminism. The critical theory schools were, to varying degrees, present or thriving in the academy in the 1970s and 1980s, within which feminist legal theory was birthed, grew, and then coexisted with critical theory, albeit at times very uneasily; and this feminist theory reflected second-wave women faculty and students’ mixed experiences of assimilation, success, and alienation in law schools themselves, as briefly recited above. Those three factors—the background politics, the presence of critical theory in law schools, and the differences in women’s experience of those schools—are all themselves either disappearing or dissipating in felt urgency, albeit in different ways and at different speeds, and that dissipation clearly is a part of the story of feminist legal theory’s decline. There are other reasons for its decline as well, however. Some are internal to feminism and feminist theory, and some pertain to the changing nature of legal scholarship from the 1980s to the present. I explore these reasons in Part II below. The story of the development of a distinctively feminist legal theory during the 1970s through the 1990s, and the story of its decline in the 2000s, is of obvious relevance to the history of second- and third-wave feminism. It should also be of interest for what it reveals about the nature of legal scholarship as it was understood, received, and produced in those decades. Its decline likewise reveals something about the changing nature of legal scholarship and the legal academy today. Thus, one conclusion I draw is that the feminist legal theory of the 1970s through the 1990s—regardless of the truth or lasting power of its claims—stands as an example of a type of legal scholarship that was somewhat distinctive to those decades. That form of legal scholarship, furthermore, likely can only emanate from the legal academy. For a host of reasons, we are currently in danger of losing this entire genre of intellectual work, which would be the polity’s loss, not just feminism’s or the legal academy’s. (shrink)

This essay examines novel threats to peace – social and political threats as well as military and technological. It worries that familiar conceptions of state sovereignty cannot sustain a legal order capable of meeting those threats, not even if we understand sovereignty as responsibility to protect human rights. The essay tentatively proposes that recent efforts to reformulate state sovereignty as responsibility to humanity – ‘R2H’ for short – offer a better hope. Under this reformulation, states must take into account the (...) interests of those outside their sovereign territory as well as those of the of their own people – in particular, the shared interest in subduing dire threats to world peace. Responsibility to humanity raises practical as well as philosophical questions. Some may fear that R2H would become a Trojan horse for powerful interests wishing to impose their will on the less powerful. The essay argues that these fears misunderstand what R2H requires. Alternatively, R2H may sound preposterously utopian, in an era of waning trust in internationalism and an upsurge of reactionary nationalism. In response, I argue that reactionary nationalism is itself a dire mistake – a symptom of our current ills, not a cure. (shrink)

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 analyzed both conspiracy theories and totalitarian ideologies; in both, she argued, common sense was replaced by “supersense” – her name for all-encompassing Theories of Everything that trace surface political events back to hidden causes. Refuting fake facts doesn’t help, she warned, because “if everyone always lies to you, the consequence is not that you believe the lies, but that no one believes anything at all anymore.” The result, she warns, is a dangerous mix of gullibility and cynicism. My aim in this paper is threefold: to explain Arendt’s arguments, to explore their contemporary relevance, and to examine their consequences through the lens of virtue epistemology. In a section on “the epistemology of bullshit” I use virtue epistemologists’ concepts of epistemic malevolence and epistemic insouciance to examine the production, distribution, and consumption of bullshit, and to define a vice I call culpable credulousness. The final sections discuss the collapse of moral common sense that led multitudes to believe that mass murder can be justified. Arendt sometimes wrote as though morality had mysteriously turned upside-down, replacing “Thou shalt not kill” with “Thou shalt kill.” I argue that this need not be so: the moral principle of justifiable self-defense, applied to fake facts about existential threats, can explain the behavior. Even so, Arendt powerfully analyzes the ways that rules of moral common sense fail in a society where factual common sense has lost its validity. (shrink)

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: through the moral biographies of two lawyers in the Third Reich, both of whom stayed on the job, and both of whom can lay claim to mitigating evil. One, Helmuth James von Moltke, was an anti-Nazi, and a martyr of the resistance; the other, Bernhard Lösener, was a Nazi by conviction who nevertheless claimed to have secretly fought against the persecution of Jews from the improbable post of legal adviser on Jewish matters. The Article critically examines their careers and self-justifications. It frames its analysis through two philosophical arguments: Hannah Arendt’s stern injunction that staying on the job is self-deception or worse, because like it or not, obedience is support; and a contemporary analysis of moral complicity by Chiara Lepora and Robert Goodin. The chief question, with resonance today as well as historically, is whether Arendt is right – and, if not, under what conditions lesser-evilism can succeed. This article will appear in a symposium with comments by Leora Bilsky and Natalie Davidson, Kathleen Clark, Erica Newland, and Shannon Prince. (shrink)

International law informs, and is informed by, concerns for global justice. Yet the two fields that engage most with prescribing the normative structure of the world order – international law and the philosophy of global justice – have tended to work on parallel tracks. Many international lawyers, with their commitment to formal sources, regard considerations of substantive (and not merely procedural) justice as ultra vires for much of their work. Philosophers of global justice, in turn, tend to explore the moral (...) commitments of international actors without grappling with the international legal doctrine or institutions. In recent years, however, both disciplines have begun to engage with one another more. This discussion among international lawyers and philosophers addresses the promises of and challenges to interdisciplinary approaches to global justice. The contributors consider the added value of philosophical inquiry to issues facing international law practitioners or scholars, the salience of of international law for political philosophy, and the methodological distinctions between the two fields. The contributors also identify promising lines and examples of interdisciplinary scholarship. (shrink)

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional (...) vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris was an honest scrivener. No prior article has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This Article undertakes that comparison. It shows that Morris made fifteen significant changes to the Constitution and that many of the Constitution’s central elements were wholly or in critical part Morris’s work. Morris’s changes strengthened the national executive and judiciary, provided the textual basis for judicial review, increased presidential accountability through an expansive conception of impeachment, protected private property, mandated that the census report reflect “actual enumeration,” removed the constitutional text suggesting that slavery was just, and fought slavery’s spread. This Article also shows that Morris created the basis for the Federalist reading of the Constitution. Federalists—notably including fellow Committee member Alexander Hamilton—repeatedly drew on language crafted by Morris as they fought for their vision of the Constitution. Because the changes Morris made to the Convention’s agreed language were subtle, both Republicans and Federalists were able to appeal to text in the great constitutional battles of the early republic. Modern originalists claim that the Republican reading reflects the original understanding of the Constitution, but this Article argues that the largely dismissed Federalist reading explains words, phrases, and punctuation that the Republican reading ignores or renders unintelligible. By contrast, the Federalist reading of the Preamble, the Article I and Article II Vesting Clauses, the Article III Vesting Clause, the Contracts Clause, the Impeachment Clause, and the “law of the land” provision gives effect to Morris’s—and the Constitution’s—words. (shrink)

Massad’s thesis is simple, in fact, perfect in its simplicity. Empire is a terrible force that wants to penetrate, overpower and hegemonize. It has a center, a headquarters if you like, the West. It functions with two arms: capitalism and Euro-American hegemony. The first arm represents the objective drive of capital that transforms sites and cultures as it spreads the market in the shape of commodity exchange. It has become a universal system, Massad contends, though with varying effects on the (...) center from the periphery. Whereas its march on the former has been totally transformative, in the latter, only so. In the center, not only has capitalism become the dominant mode of production, but it has also, following Foucault, witnessed the emergence knowledges/powers that have instituted categories, binaries, taxonomies, in short, epistemologies that were unknown in the pre-capitalist era. These epistemologies produced new subjects. One of those was the hetero/homo distinction in which people came to know their “hetero/homosexuality” as their most inner truth. (shrink)

Amici curiae are a group of philosophically and politically diverse law school professors and scholars in the fields of criminal law and mental health from a variety of disciplines who have been teaching and writing about the insanity defense and related issues throughout their careers. They include the authors of leading criminal law and mental health law treatises and casebooks and numerous important scholarly books and articles. Amici believe this case raises important questions about principles of criminal responsibility, the integral (...) role of the insanity defense in Anglo-American law, and the inadequacy of the “mens rea alternative” to the traditional affirmative defense. Their teaching and research on the subject have given them a unique appreciation of the historical and doctrinal significance of the defense of legal insanity. (shrink)

It is natural to wonder about contract law’s relationship to the morality of promises and agreements. This Chapter distinguishes two ways to conceive of that relationship. First, parties’ agreement-based moral obligations might figure into the explanation of contract law—into an account of its functions or justifications. Contract law might serve to enforce parties’ first-order performance obligations, to enforce second-order remedial obligations, to support the culture of making and keeping agreements more generally, or at least to do no harm to that (...) culture or to people’s ability to act morally. Second, contract can be understood as the legal analog to promise. Both contract and promise enable people to undertake new obligations to one another when they wish. Each is a type of normative power, the one legal, the other moral. The Chapter concludes by arguing that these two ways of thinking about contract law are not mutually exclusive. Contract law both imposes on parties to exchange agreements a legal obligation to perform for reasons independent of the parties’ possible contractual intent, and confers on them the power to undertake that legal obligation when they so intend because they so intend. (shrink)

This Article is a contribution to the torture debate. It argues that the abusive interrogation tactics used by the United States in what was then called the “global war on terrorism” are, unequivocally, torture under U.S. law. To some readers, this might sound like déjà vu all over again. Hasn’t this issue been picked over for nearly fifteen years? It has, but we think the legal analysis we offer has been mostly overlooked. We argue that the basic character of the (...) CIA’s interrogation of so-called “high-value detainees” has been misunderstood: both lawyers and commentators have placed far too much emphasis on the dozen or so “enhanced interrogation techniques” (EITs) short-listed in government “torture memos,” and far too little emphasis on other forms of physical violence, psychological stressors, environmental manipulations, and abusive conditions of confinement that are crucial to the question of whether the detainees were tortured. Furthermore, we dispute one of the standard narratives about the origins of the program: that it was the brainchild of civilian contractor psychologists because— in the CIA’s words—“[n]on-standard interrogation methodologies were not an area of expertise of CIA officers or of the US Government generally.” This narrative ignores the CIA’s role in devising these methods, in spite of the decades of prior CIA research and doctrine about forcing interrogation subjects into a state of extreme psychological debilitation, and about how to do so—by making them physically weak, intensely fearful and anxious, and helplessly dependent. By neglecting this history and focusing on the contractors and the EITs they devised, this narrative contributes to the misunderstanding that the torture debate is about EITs and nothing else. In effect, a “torture debate” about EITs and the torture memos neglects the purloined letter in front of our eyes: the abusive conditions the CIA inflicted on prisoners even when they were not subject to EITs, including abuses that the torture memos never bothered to discuss. Unpacking what this debate is really about turns out to be crucial to understanding that such interrogation methods are torture under existing U.S. law. The U.S. Torture Act includes a clause in its definition of mental torture that was intended to ban exactly the kind of interrogation methods the CIA had researched, out of concern that our Cold War adversaries were using them: mind-altering procedures “calculated to disrupt profoundly the senses or the personality.” That is precisely the “non-standard interrogation methodology” the CIA employed after 9/11. (shrink)

In this Response, I will investigate the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication; the sketch draws on speech act theory and the work of Paul Grice, extending and modifying many of the insights developed by Kar and Radin. Part II turns to contractual communication, differentiating distinct “situations of contractual communication” and interrogating Kar and Radin’s Shared (...) Meaning Analysis. Part III interrogates Kar and Radin’s distinction between “contract” and “pseudo-contract.” The conclusion of the Response briefly reflects on the significance of Kar and Radin’s project. (shrink)

What should be done if we suddenly discover a large asteroid on a collision course with Earth? The consequences of an impact could be enormous—scientists believe that such a strike 60 million years ago led to the extinction of the dinosaurs, and something of similar magnitude could happen again. Although no such extraterrestrial threat now looms on the horizon, astronomers concede that they cannot detect all the potentially hazardous “near-Earth objects,” and even more striking, they acknowledge that if such a (...) danger were discerned, there is currently no proven capability for diverting or destroying it. One possible response to this type of incipient catastrophe could be to send into space a nuclear explosive device, hoping the massive blast could alter the asteroid's trajectory. Indeed, if time were short, that might be the only effective remedy. But two major nuclear arms control treaties-which have been joined by most of the leading countries and are widely appreciated as fundamental to global security-specifically forbid that approach. This Article examines that critical clash of legal, political, and technical values, and concludes that the best response would be for the UN Security Council to adopt a binding resolution pursuant to its powers under Chapter VII of the UN Charter, to deal with the emergency on an expeditious, global basis. A proposed draft of such a resolution is presented, along with explanatory annotations. (shrink)

“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique (...) these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents. (shrink)

At the end of the proceedings of the federal constitutional convention, the delegates appointed the Committee on Style and Arrangement to bring together the textual provisions that the convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris was assigned to draft the document for the committee, and, with few revisions and little debate, the convention subsequently adopted the Committee’s proposed constitution. For more than two hundred years, questions have been raised as to whether Morris (...) as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal scholars and historians studying the convention have concluded that Morris was an honest scrivener. No prior article, however, has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This article reveals how many changes Morris made to the text delegates had previously agreed to and how important those changes were. It shows that many of the central elements of the Constitution were wholly or largely the product of the Committee’s work. In total, Morris made twelve significant changes to the Constitution, and these textual changes advanced his constitutional goals, including strengthening the national government, the executive, and the judiciary; protecting private property; and fighting the spread of slavery. Finally, it shows that, in central debates in the early republic, Federalists, and, notably, fellow committee member Alexander Hamilton repeatedly drew on language crafted by the Committee as they fought for their expansive vision of the Constitution. In revising the constitutional text, Morris created the basis for what was to become the Hamiltonian reading of the Constitution. This history has significant implications for modern constitutional law. While the Supreme Court has never been presented with a case that reveals the extent of the Committee’s changes, in four cases it has confronted situations in which the Committee’s text arguably had a different meaning than the provision previously adopted by the convention, and the Court has consistently treated the Committee’s work as substantively meaningless and concluded that the prior resolutions were controlling. That approach should be rejected because it is at odds with the majoritarian premise of constitutional ratification by “the people.” The text that was ratified is controlling. At the same time, in most circumstances, Morris’s language was ambiguous. A modern public meaning originalist approach leads to the conclusion that Morris’s revisions made possible alternate readings of the Constitution: it supported what was to become the Federalist approach, but did not prevent Republican textualist readings. On important contemporary issues, focus on Morris’s text makes us aware of originalist understandings of the text that have been frequently dismissed or wholly forgotten; although it does not eliminate the originalist basis for narrower readings, that focus provides new originalist support for broad understandings of congressional, judicial, and presidential power and for protection of private property. (shrink)

This essay, to appear in Contract, Status, and Fiduciary Law (Miller & Gold, 2016), explores three ways fiduciary obligations might be like contractual ones: in the methods lawmakers use or should use to determine the content of the obligation; in the private voluntary acts that generate the obligation; and in the fact that the obligation is a default that parties have the power to alter. The thesis is that to the extent that these similarities exist, they are not especially revealing. (...) Theorists who emphasize the similarities commonly treat contract law as a private power-conferring rule, then analogize the law of fiduciary obligations to it. In fact, the law of contract is more complex and serves a broader range of purposes than just giving private parties the ability to undertake legal obligations when they choose. Contract obligations are sometimes imposed for reasons other than party choice, and contract defaults and altering rules can be designed to serve other social purposes. A more nuanced understanding of the functions and design of contract law suggests that structural similarities between fiduciary obligations and contractual ones tell us less about the fiduciary obligations than we might have hoped. The explanation of why that is so, however, reveals important features both of contract law and of the law of fiduciary obligations. (shrink)

This is not another "law-and-econ" bashing symposium. Nor is the symposium's title intended to denigrate Chicago School law and economics any more than the term "Post-Keynesian economics" was intended to denigrate the work of John Maynard Keynes. Instead, this symposium marks the fact that many practitioners of law and economics have moved well beyond the stereotypes familiar to most legal academics. Rather than designating an entirely new school of thought, the term "Post-Chicago law and economics" refers to a new era (...) in which a variety of new questions about law and lawmaking is being asked and a variety of promising economic techniques is being used to answer them. Yet most legal academics who, like me, are not part of the law and economics movement are generally unaware of these changes. The purpose of this "Symposium on Post-Chicago Law and Economics" is to bring some of these new methods and questions to the attention of mainstream legal academics and others. The hope is that those who have shunned the economic analysis of law in the past may wish to reconsider their stance in light of what Post-Chicago law and economics has to offer. To facilitate this, the author uses this Foreword to summarize the new directions suggested by each of the symposium contributors, most of whom are practitioners of law and economics. (shrink)

The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is "jurisprudence" a synonym for "philosophy of law" or are these two overlapping but distinct fields? Is "legal theory" broader or narrower than jurisprudence? And why should we care about this terminology? As always, this entry in the Legal Theory Lexicon series is aimed at law students, especially first-year law students (...) with an interest in legal theory. (shrink)

Critics of Institutional Review Board (IRB) practices often base their charges on the claim that IRB review began with and is premised upon a "medical model" of research, and hence a "medical model" of risk. Based on this claim, they charge that IRB review, especially in the institutional Reviw boardsocial and behavioral sciences, has experienced "mission creep". This paper argues that this line of critique is fundamentally misguided. While it remains unclear what critics mean by "medical model", the point of (...) contemporary human research subjects regulation remains the same across all domains of research. That point is to protect the autonomy of human subjects, primarily through the use of informed consent. In fields as different as biomedical self-experimentation and ethnography there is the danger of losing sight of subjects' autonomy. Critiques of the so-called medical model are sometimes libertarian and sometimes utilitarian in spirit. Either way, such critiques have not yet demonstrated that these philosophical schools of thought have the resources to guard against the potential risk of harm that lexically prioritizing the autonomy of human subjects does. Precisely because IRB review recognizes that human subjects research occurs in different fields using different research methods, IRB review requires researchers to explain their particular methods, the particular risks of harm created by these methods, and the implementation of procedures by which subjects may autonomously consent to precisely those risks. (shrink)

In 1993, Professor of Jurisprudence, Ronald Dworkin of Oxford University and Professor of Law at New York University, delivered the Georgetown Law Center’s thirteenth Annual Philip A. Hart Memorial Lecture: "Life’s Dominion: An Argument About Abortion and Euthanasia." Dworkin is Professor of Philosophy and Frank Henry Sommer Professor of Law at New York University. He received B.A. degrees from both Harvard College and Oxford University, and an LL.B. from Harvard Law School and clerked for Judge Learned Hand. He was associated (...) with a law firm in New York (Sullivan and Cromwell) and was a professor of law at Yale University Law School from 1962-1969. He has been Professor of Jurisprudence at Oxford and Fellow of University College since 1969. He has a joint appointment at Oxford and at NYU where he is a professor both in the Law School and the Philosophy Department. He is a Fellow of the British Academy and a member of the American Academy of Arts and Sciences. Professor Dworkin is the author of many articles in philosophical and legal journals as well as articles on legal and political topics in the New York Review of Books. He has written Taking Rights Seriously (1977), A Matter of Principle (1985), Law’s Empire (1986), Philosophical Issues in Senile Dementia (1987), A Bill of Rights for Britain (1990), Life’s Dominion (1993), and Freedom’s Law (1996). (shrink)

On April 2, 1987, Professor of Philosophy, Judith Jarvis Thomson of Massachusetts Institute of Technology, delivered the Georgetown Law Center’s seventh Annual Philip A. Hart Memorial Lecture: "The Decline of Cause." Judith Jarvis Thomson works in ethics and metaphysics. Her book, The Realm of Rights (Harvard University Press, 1990) is a study of the questions what it is to have a right, and which ones we have. An article entitled "Self-Defense" appeared in Philosophy and Public Affairs (Fall 1991); another entitled (...) "On some ways in which a thing can be good" appeared in Social Philosophy and Policy (Spring 1992). Her work in metaphysics has largely been on the ontology of events, and the identity across time of people and other physical objects. An article entitled "People and their bodies," which takes issue with views expressed by Derek Parfit in Part III of his Reasons and Persons, has recently appeared in a collection of essays (edited by Jonathan Dancy) written on topics dealt with in that book. She is currently working on the question what it is for one event to cause another. (shrink)

This paper is a review essay of W. Bradley Wendel's Lawyers and Fidelity to Law, part of a symposium on Wendel's book. Parts I and II aim to situate Wendel's book within the literature on philosophical or theoretical legal ethics. I focus on two points: Wendel's argument that legal ethics should be examined through the lens of political theory rather than moral philosophy, and his emphasis on the role law plays in setting terms of social coexistence in the midst of (...) moral pluralism. Both of these themes lead him to reject viewing legal ethics as an instance of "the problem of role morality." In part III I note the similarity between Wendel's view and that of legal process theorists, and I argue that the view involves too much complacency about the American legal system. Part IV examines the central metaphor of Wendel's book, fidelity to law. I distinguish between two forms of fidelity, personal and interpretive. The former is a relation between persons, while the latter means mimetic accuracy in interpretation, translation, performance of music, portraiture, or other forms of representation. I agree with Wendel's views on the requirement that lawyers exhibit interpretive fidelity toward law, but not personal fidelity. I argue that law is not the kind of thing toward which one can have personal fidelity; rather, the fidelity must be toward other members of the community rather than toward norms as such; and in cases where the law systematically discriminates, or is otherwise systematically unjust, the bonds of reciprocity grounding such a relation are absent, and the kind of unconditional obedience to law that Wendel supports is unjustified. Part V asks where, on Wendel’s view, the morality went. I argue that Wendel's view, which derives from but modifies Joseph Raz's analysis of legal authority as exclusionary reasons, does not succeed—either it begs the question of whether law actually provides exclusionary reasons or, if (as Wendel suggests) the reasons are not wholly exclusionary, Raz’s two levels of reasoning collapse into one, and acting on moral grounds is not in fact excluded by legal authority. I then turn to Wendel's ideas about "moral remainders"—the moral costs that acting on his view of legal ethics may inflict on others. Wendel suggests that some form of atonement can cancel the moral remainder, but I am skeptical that his proposal—atoning through law reform activities—can do the job. (shrink)

In the immediate aftermath of September 11, President Bush stated that the perpetrators of the deed would be brought to justice. Soon afterwards, the President announced that the United States would engage in a war on terrorism. The first of these statements adopts the familiar language of criminal law and criminal justice. It treats the September 11 attacks as horrific crimes—mass murders—and the government’s mission as apprehending and punishing the surviving planners and conspirators for their roles in the crimes. The (...) War on Terrorism is a different proposition, however, and a different model of governmental action—not law but war. Most obviously, it dramatically broadens the scope of action, because now terrorists who knew nothing about September 11 have been earmarked as enemies. But that is only the beginning. (shrink)

What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism--liberty of conscience, toleration, limited government, and the rule of law? This essay explores these questions from the perspectives of contemporary political philosophy and constitutional theory. The thesis of the essay (...) is that pluralism--the diversity of religious and secular conceptions of the good--can and should work as a force for constitutional consensus and that such a consensus is best realized through commitment to an ideal of public legal reason instantiated by the practice of legal formalism. The case for these claims is made in six parts. After the introduction, Part II, The Fact of Pluralism in the Context of Contemporary Religious Division, explores the idea of religious division in light of an important notion in political philosophy--the idea that John Rawls calls the fact of reasonable pluralism. Part III, Public Legal Reason, argues that the fact of pluralism has important normative consequences for the foundations of normative legal theory and argues for an ideal of public legal reason. Part IV, Legal Formalism, contends that this idea is best realized in constitutional practice through a formalist approach to constitutional interpretation--one that deliberately eschews direct reliance on religious and secular comprehensive conceptions of the good. Part V, Feasibility and Positive Theory, discusses the question whether this ideal of public legal reason and corresponding conception of constitutional formalism are realistic, given the constraints imposed by democratic politics under contemporary conditions. Finally, Part VI, Religious Division Revisited: From Pluralism to Formalism, brings the discussion to a close. (shrink)

This essay develops an ideal of public legal reason--a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what the author calls public values--values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines. (...) The ideal of public legal reason is then applied to a particular question--whether welfarism (a particular form of normative law and economics) provides the sort of reasons that appropriate for legal practice. The answer to that question is no--to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that fail the test of public reason. The essay also investigates the thesis--advanced by Louis Kaplow and Steven Shavell--that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell's argument, it does not show that welfarism can provide public legal reasons. The essay concludes that law's justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law's deliberations should be shallow and not deep. Law's reason should be public. (shrink)

The author argues that although legal writing faculty know that what they teach is absolutely essential to their students' success, yet it continues to be grossly, even embarrassingly, undervalued in legal education. Doctrinal legal faculty perpetuate the view that legal education is a philosophical endeavor that focuses on the truth about the nature of law and, in the twenty-first century, on the law's ability to serve justice in a multicultural America. Because of their political power, however, doctrinal faculty are able (...) to preserve the task of truth finding for themselves. Since the nature of truth is independent of its practical application, those who teach legal writing are simply not part of the academy's intellectual enterprise. At best, they teach a process for conveying truth, and at worst, they teach students how to engage in the process of manipulation and domination. Because most legal writing faculty are women, and because they teach a process that lacks substance and perhaps even value, they are discriminated against. The author illustrates that both doctrinal and legal writing faculty teach "truth": doctrinal faculty teach students "the truth" about a specific body of law and its evolution while legal writing faculty teach students how to interpret and apply that same truth in a specific contract. (shrink)

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of (...) its rivals. This Essay aims to mark the distinction clearly! The basic idea can be explained by distinguishing two different moments or stages that occur when an authoritative legal text is applied or explicated. The first of these moments is interpretation – which I shall stipulate is the process that recognizes or discovers the linguistic meaning or semantic content of the legal text. The second moment is construction – which I shall stipulate is the process that gives a text legal effect. I shall then claim that the difference between interpretation and construction is real and fundamental. Although the terminology could vary, legal theorists cannot do without the distinction. One more preliminary point: the topic of this Essay is narrow and conceptual. This Essay, has three goals: to explicate the nature of the interpretation-construction distinction, to argue that this distinction marks a real difference, and to suggest that the distinction is helpful in that it enables legal theorists to clarify the nature of important debates, for example debates about constitutional interpretation. The Essay does not offer any particular theory of interpretation or construction – that it is, it remains agnostic about questions as to how linguistic meaning can be discerned or how legal content ought to be determined. Nor does this theory offer an account of the history and origins of the distinction. Those topics are important, but raising them in this Essay might shift attention away from prior questions about the nature and value of the distinction itself. Here is the roadmap. In Part II, this Essay shall discuss two preliminary sets of ideas: vagueness and ambiguity, and semantic content and legal content. In Part III, this Essay shall use these preliminary ideas to answer the questions, "What is interpretation?" and "What is construction?" In Part IV, this Essay shall consider some objections to the interpretation-construction distinction. In Part V, this Essay shall develop the argument that the distinction is fundamental and indispensable. (shrink)

What does it mean to be truly human? And, relatedly, what does it mean to be treated as truly human, and with dignity, by the state, or community, of which one is a part? To be fully human, Martha Nussbaum has argued for the better part of two decades, and argues in greater detail in “Women and Human Development”, is not only to be rational, and not only to be happy, but also to be capable - capable, for example, of (...) loving others, of thinking rationally about one's own life, of engaging in dignified labor, of interacting with the natural and political environment, of participating in a society's cultural life. A truly human life is defined by, or perhaps constituted by, these capabilities; to lack anyone of them is in some way to lack a fundamental pillar of one's humanity. Therefore, she continues, a citizen in a constitutional government is treated as fully human by the state when that person's fundamental capabilities - the capabilities which define her humanity - are, at least minimally, protected, promoted or nurtured by the state's governing authorities. Constitutional governments, then, whatever else they do, must protect, promote, or create whatever conditions are necessary for citizens to possess these fundamental capabilities... I will highlight and then amplify what I think is missing or underplayed in Nussbaum's treatment of capabilities and women, and that is the role that authority plays - and the role it should and should not play - in guiding states toward a recognition of their obligation to nurture, promote, or protect women's - and men's and children's - human capabilities. (shrink)

In Part I this essay explores and then criticizes the two major arguments behind the conventional wisdom that rights undermine efforts to secure a state role in ensuring the material preconditions for a good society, and therefore, the material preconditions for the development of those human capabilities essential to a fully human life. I conclude in this part that this understanding of rights is mistaken. In Part II, I urge that the pragmatic argument put forward by rights critics and some (...) welfare advocates for forgoing rights-talk and rights-rhetoric also fails: there are very real costs, both in theory and in law, in deciding to forgo putting the case for the state's obligation to provide minimal material goods in terms of rights. In Part III, I briefly describe two core rights that a refashioned liberal state, understood as a vehicle for protecting not just the liberty but also the capabilities of citizens, should recognize: first, a right to be protected against private violence, and second, a right of caregivers to give care to dependents without incurring the risk of severe impoverishment or subordination - a right, to use the provocative phrase coined by the philosopher Eva Kittay, to doulia. Both rights, I think, are directly entailed by the state's obligation to provide the minimal preconditions for the development of those fundamental human capabilities that are themselves essential to a fully human life. Both rights however, could be and should be conceived in the most traditionally liberal terms. The first such right - the right to protection against private violence - although now disfavored in United States rights discourse, seems fully authorized by both the liberal tradition and the American Constitution itself. The second right for which I will argue - the right to provide care to dependents has no similar basis of support in either liberal theory or American constitutionalism. It is not incompatible with either, however, and is at least arguably required by the deepest commitments of both. The right to protection and the right to care are rights that can be framed in liberal terms, and both rights would go a long way toward securing for individual citizens the minimal preconditions of a good society. (shrink)

This essay is in the spirit of a friendly amendment. I have found Shklar's central arguments to be more compelling every time I have reread this book over the last twenty years. Nevertheless, I want to argue in this essay that in spite of Legalism's strengths, Shklar's core anthropological claim about the profession - more often asserted, rather than argued, throughout the book - that legalism, the attitudinal glue that binds lawyers professionally, consists of a commitment to the morality of (...) rule abidance - is flawed, not because it is wrong, but because it is underinclusive. While legalism consists of something like what she described, it is by no means only that... My second point, which I will take up very briefly toward the end of this essay, is that a fuller account of ideological legalism also casts the central normative question Shklar raised, regarding the appropriateness of legalism in international affairs, particularly in times and matters and questions of war, in a different light. If legalism consists of only a commitment to the morality of playing by the rules, then it does seem oddly inappropriate in the international arena. (shrink)

First, on the "lawless adjudicator." The question I want to pose is this: Why is it so hard for the legal academy - and the legal profession - to come to grips with the bare logic of the charge, much less the case, that Vere acted lawlessly, and therefore criminally, and indeed murderously, when he willfully distorted the governing law, so as to execute Billy? Why has this quite specific legal claim not received more of a hearing? Is it because (...) Weisberg was not sufficiently considerate in his communication of this idea? On first blush that seems implausible: It is one thing, after all, to argue syllogistically that Claggart is Christ, that Claggart is a villain, and that therefore Christ is a villain-one can see why that claim may require considerate communication - but the indictment of the fictional Vere in a nineteenth century novella? Why has it proven so hard for the academy to hear Weisberg's claim that Vere is a murderer? Here is the syllogism: Vere was charged with the duty to uphold the law, he betrayed the law and his duty to apply it in order to execute an innocent man, and he did it knowingly, intentionally, and with plenty of malice aforethought, and for the most profoundly personal, political reasons. Therefore, Vere is a lawless adjudicator, a dissembler, a criminal, a murderer. Does that straightforward legal argument - that an adjudicator is a man to whom the power to declare what the law is has been delegated; that an adjudicator might be a criminal, and might achieve criminal ends, through dissembling, misrepresenting, or perverting legal texts, and thereby through breaching a trust - itself require considerate communication? Has our faith in adjudication reached such absurd heights that the lawless or criminal adjudicator has become an unthinkable oxymoron? Or, have our expectations dropped so low that the phrase "lawless adjudicator" has become redundant, so self evident, that the presentation, the claim, that an adjudicator is lawless, is just a trite, banal, and unnecessary restatement of a mode of being always and already present in courts of law? (shrink)

This Essay is an attempt to theorize the relationship of law to culture and culture to law beyond the intuitive, commonplace sense that law partakes of culture - by reflecting it as well as by reacting against it - and that culture refracts law. It proposes a theory of law as culture that, in detailing the mutually constitutive nature of the relationship, distinguishes itself from the way law and culture have been conceived by realist and critical legal scholars, as well (...) as by social norms writers. The Essay concludes by speculating about one possible method by which this theorizing might be analytically employed in a cultural interpretation of law. (shrink)

It has been apparent for at least a decade that liberal constitutional theory is in deep trouble. Of course there are many versions of liberal constitutional theory, but they have essentially no connection to existing practices of constitutional law, considering as practices of constitutional law all the activities of our institutions of government that implicate - interpret, advance, deal with, whatever - fundamental principle. Instead, liberal constitutional theory's vision of the future is nostalgia for the past. For liberal constitutional theorists (...) the Warren Court, or Justice Brennan, basically got everything right, at least in their approach to identifying constitutional law. True, they may have faltered sometimes in implementing constitutional principles, but all that needs to be done today is to appoint justices in the mold of Warren, Brennan, or Thurgood Marshall. And here I really do mean all that needs to be done: No rethinking of what constitutional law is all about seems needed to liberal constitutional theorists. (shrink)

Bill Klein extends an idealistic and progressive invitation with the Criteria for Good Laws of Business Association. The structure of our debates, he says, prevents us from joining the issue. The discourse will move forward if we can isolate core components on which we agree and disagree. The invitation, thus directed, is well-constructed. To facilitate engagement, each criterion is set out as pari passu with each other. And there is a good reason for the inclusion of each listed criterion. Each (...) has an established place in public and private law jurisprudence. Each has influenced results, coming forth as salient in one or another area of law, in one or another regulation or case. We can, then, agree in the abstract to take each criterion seriously. Klein bids us then to cull, modify, and restate, so as to identify more clearly the goals we hold out for corporate law. The remainder of this essay takes up that invitation, taking our debates to the Criteria, taking the Criteria to our debates, and taking both to the law itself. It suggests that the criteria on which we can agree lie at a higher level of generality than the Criteria: corporate law makes us all welfare consequentialists who agree that good corporate law is about encouraging productivity. We differ over the means to that end in debates that have over time evolved away from the ideological and toward the functional. Absent an ex ante set of empirically verifiable formulas for productive business organization, we are left to our debates. (shrink)

Professor John Rawls of Harvard University, who died in November of 2002, is widely regarded as the most important political philosopher of the twentieth century, and his influence on legal thought was particularly profound. There have been a number of conferences or symposia on Rawls's individual books, such as A Theory of Justice and Political Liberalism, but, astonishingly, until the symposium presented in this issue of the Fordham Law Review was held in November 2003, no symposium or conference had focused (...) on the implications of his work for the law. Simply because of its subject, then, this symposium was of landmark significance. Yet this symposium was remarkable, not simply because of its subject, but because it brought together an outstanding group of scholars whose papers grappled with the deepest implications of Rawls's work for the law. (shrink)

One of the most celebrated Talmudic parables begins with a remarkably dry legal issue debated among a group of rabbis. A modern reader should think of the rabbis as a collegial court, very much like a secular appellate court, because the purpose of their debate is to generate edicts that will bind the community. The issue under debate concerns the ritual cleanliness of a baked earthenware stove, sliced horizontally into rings and cemented back together with unbaked mortar. Do the laws (...) of purity that apply to uncut stoves apply to this one as well? This stove is the so-called "oven of Akhnai". Presumably, its horizontal bands separated by mortar made it look like a coiled serpent; but according to the Talmud, it is the oven of Akhnai because the legal debate coiled the rabbis in serpentine arguments. Therein lies a remarkable tale. (shrink)

Given that law is made by and for people, the relatively little attention lawyers, judges, and legal scholars have paid to human psychology is surprising. Too often, legal writers have either presupposed or borrowed impoverished conceptions of human nature, erecting legal theories for people presumptively possessed of the requisite nature, regardless of the psychology of the actual persons who make and live under the law. Even when they do attend to human nature, legal scholars tend to ignore the centrality of (...) emotions, dispositions, fantasies, and wishes to human psychology. The articles in this Symposium are united by their authors' resistance to unrealistic or incomplete theories of human nature. Whether they rely on developed social science or more speculative theories of the mind, or a combination of the two, each author portrays human actors in complex psychological terms and discusses the implications for law, legal theory, moral theory, or some combination of these. After reading the collection of articles presented here, the reader will, I hope, see how scholars, lawyers, judges, and policymakers can work toward law that comprehends and accepts the complexity of human psychology. (shrink)

Recent developments in neuroscience that purport to reduce religious experience to specific parts of the brain will not diminish the fundamental cultural or legal standing of religion. William James debunked this possibility in The Varieties of Religious Experience when he noted that “the organic causation of a religious state of mind” no more refutes religion than the argument that scientific theories are so caused refutes science. But there will be incremental legal change in areas like civil commitment where judges must (...) sometimes distinguish between mental disorder and religious belief. The paradox is that the ecstatic religious experience of unorthodox individuals will fare less well in the courts than the beliefs of conventional groups, which is precisely the opposite of James’ view of authentic religious life. (shrink)

One of the ways our legal system has avoided confronting this ugly reality is through a commitment to legal formalism. Legal formalism allows us to ignore the social determinants that my AUSA friend saw every day as he prosecuted federal drug cases. As my colleague Professor Michael Seidman has suggested, legal formalism, which has been effectively critiqued and displaced by legal realism in many other areas of law, continues to exercise considerable influence over the way we think about criminal law. (...) This formalist approach, in my view, has strongly affected the way we approach the drug problem. One consequence is that we continue to pursue an increasingly futile war on drugs and refuse to see the issue in its broader, realist dimension. A little realism on the subject of drugs, I suggest, would go a long way. There is much to be said for formalism in the criminal law. Formalism, with its commitment to fair procedures, clear rules, and restricted discretion, is a necessary part of any fair system of criminal law. The sanctions involved in the criminal system are too severe to permit them to be allocated in an open ended discretionary or regulatory manner. The criminal law's commitment to formalism is thus not a fault, but a strength. Discretionary regulatory schemes too often invite subjective judgments susceptible to abuse, prejudice, and favoritism. Formalist rules, by contrast, are built on the promise of treating likes alike. Precisely for this reason, however, we ought to reconsider whether the criminal approach makes sense when there is substantial evidence that the commitment to equality has been seriously compromised. Our dual commitments to equality and to the reduction of the human damage that drug abuse inflicts suggest that we should reduce our reliance on the criminal justice system. Alternative approaches, such as treatment and rehabilitation, promise to be both more effective and more fair. (shrink)

David Luban argues in this lecture that the moral foundation of the lawyer's profession lies in the defense of human dignity-and the chief moral danger facing the profession arises when lawyers assault human dignity rather than defend it. The concept of human dignity has a rich philosophical tradition, with some philosophers identifying human dignity as a metaphysical property of individuals-a property such as having a soul, or possessing autonomy. Luban argues instead that human dignity is a relational property of "the (...) dignifier" and "the dignified," emphasizing that assaulting human dignity humiliates the victim. Lawyers honor the human dignity of others by protecting them against humiliations, and defile that dignity by subjecting them to humiliations. The lecture develops these ideas through four traditional issues in legal ethics: the right of criminal defendants to an advocate, the duty of confidentiality, paternalism of attorneys toward their clients, and pro bono service. (shrink)

John Whyte, the author observes, is committed to the idea that there are moral foundations to Canada's constitutional order and that these foundations are derived from liberal principles. This paper compares Whyte's liberal and organicist constitutionalism to that of the eighteenth century British political thinker, Edmund Burke. Three themes are predominant in Whyte's work: those of liberty and security, unity and diversity, and constitutional change. Drawing out these themes in both Whyte's and Burke's constitutional thought, the author argues that Whyte (...) has a sound historical basis for deriving Canadian constitutional practices from liberal principles ordinarily associated with Burke. The author concludes by asking this question: if Canadian constitutionalism can be reduced to liberalism, what distinguishes Canada from the United States, and more critically, what will prevent Canada from being absorbed into a larger North American political unit? (shrink)

The answer I offer in this Article is that crimes against humanity assault one particular aspect of human being, namely our character as political animals. We are creatures whose nature compels us to live socially, but who cannot do so without artificial political organization that inevitably poses threats to our well-being, and, at the limit, to our very survival. Crimes against humanity represent the worst of those threats; they are the limiting case of politics gone cancerous. Precisely because we cannot (...) live without politics, we exist under the permanent threat that politics will turn cancerous and the indispensable institutions of organized political life will destroy us. That is why all humankind shares an interest in repressing these crimes. The theory that I aim to defend here consists of two propositions: that "humanity" in the label "crimes against humanity" refers to our nature as political animals, and that these crimes pose a universal threat that all humankind shares an interest in repressing. (shrink)

Integrity is a good thing, isn't it? In ordinary parlance, we sometimes use it as a near synonym for honesty, but the word means much more than honesty alone. It means wholeness or unity of person, an inner consistency between deed and principle. "Integrity" shares etymology with other unity-words-integer, integral, integrate, integration. All derive from the Latin integrare, to make whole. And the person of integrity is the person whose conduct and principles operate in happy harmony. Our psyches always seek (...) that happy harmony. When our conduct and principles clash with each other, the result, social psychology teaches us, is cognitive dissonance. And dissonance theory hypothesizes that one of our fundamental psychic mechanisms is the drive to reduce dissonance. (shrink)

We have been asked to consider how a "Constitution of Civic Virtue" might contribute to a "good society." To answer this question, we need to have some idea of what a good society might be, and we need to be able to articulate that idea. Certainly, we think we know a good movie when we see it, a good book when we read it, a good argument when we hear it, and a good idea when we have one, but we (...) are not sure we have a handle on what a good society is. Even what we think we know about good books, movies, arguments, and ideas gives us pause. For we are not sure we can always explain why we think a particular movie is good or a book is bad. And even when we can explain it, we find that many people disagree with us about such matters. Indeed, we, at times, even disagree with each other. By this we do not mean to suggest any skepticism about there being such a thing as a good book, a good film, a good wine, a good car, or even a good person. If there is one thing we think we know in this world, it is that there are good persons-quite amazingly good actually. Nor do we mean to deny that there may be such a thing as a good society, though we are not so confident about this. A lot depends on what is meant by those words. Having said this, we will set our skepticism aside and now offer a conception of a good society; but we no more expect everyone to agree with this conception then we expect them to agree with one of us that "The Tao of Steve" was a really good movie. (shrink)

Torture used to be incompatible with American values. Our Bill of Rights forbids cruel and unusual punishment, and that has come to include all forms of corporal punishment except prison and death by methods purported to be painless. Americans and our government have historically condemned states that torture; we have granted asylum or refuge to those who fear it. The Senate ratified the Convention Against Torture, Congress enacted antitorture legislation, and judicial opinions spoke of "the dastardly and totally inhuman act (...) of torture.” Then came September 11. (shrink)

Part I places Berle and Means in the context of the legal theory of its day by comparing the work of Dewey on the theory of the firm and Douglas on corporate reorganization. This discussion highlights two progressive assumptions Berle and Means shared with these business law contemporaries-a confidence in the efficacy of judicial intervention to vindicate distributive policies and a distrust of the institution of contract. These assumptions would, in the long run, cause the book's prescription to land wide (...) of the mark. After 1980, Berle and Means lost their paradigmatic status due to a combination of skepticism respecting judicial competence and renewed faith in the institution of contract. Significantly, by 1980 the same emerging perspectives had already played a role in the Congress's abandonment of Douglas's corporate reorganization scheme. Part II reconsiders The Modern Corporation and Private Property in the context of contemporary corporate legal theory. It begins, in Section A, with a look at the book as an early example of corporate law and economics. The book's pro-regulatory posture reverses contemporary expectations about interdisciplinary influence, under which economics promotes deregulation. The alignment of methodology and policy prevailing in the 1930s was very different from that of today, and the book reflected that alignment. Section B takes up the separation of ownership and control, showing that the book's description of the problem synchronizes neatly with contemporary views on corporate governance. It turns out that even the latest micro economic theory of the firm coexists in consonance with Berle and Means. Section C turns to the solution the book recommends for the problem of separated ownership and control, a judicially enforced norm of trust. Here, Berle and Means have become history, eclipsed in business law along with many other progressive policy positions. Yet, their book hedges its presentation carefully enough to retain a measure of plausibility even in a contemporary reader's eyes. Nor should Berle and Means have foreseen a critical subsequent change in the context of corporate lawmaking. The Delaware courts have been the primary agents of the book's prescriptive failure. They did not assume an obstructive position until Erie Railroad Co. v. Tompkinsl9 took the federal courts out of corporate fiduciary lawmaking a few years after the book was published. (shrink)