In the epigram to her most important book, Catharine MacKinnon sought to invent a new plot with respect to the ways men and women negotiate (or not) the terms of their planetary cohabitation.\u27 Through historically momentous scholarship... more
In the epigram to her most important book, Catharine MacKinnon sought to invent a new plot with respect to the ways men and women negotiate (or not) the terms of their planetary cohabitation.\u27 Through historically momentous scholarship and national and international legal advocacy spanning a thirty year career in public life, she has largely succeeded in doing so. Most visibly, from within law\u27s perspective, MacKinnon invented a new plot by fundamentally restructuring our civil rights law, and she did so by reconceiving the ideal of equality that is at that law\u27s heart. As is now well recognized, she did so in a two step argument: She first exposed the relative emptiness of a formal understanding of the ideal of equality that seeks solely to rationalize the treatment of men and similarly situated women-an approach which, virtually by definition, does little but provide a modest boost for women who are already relatively well-off. She then provided an alternative, substantiv...
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Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified... more
Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The constitutional faithful argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of that determinacy, judicial review can indeed be brought within the rubric of liberalism. Taking issue with the constitutional faithful is a group who might be called constitutional sceptics. Scholars in this group see, in every constitutional phrase or doctrine, the possibility of multiple interpretations, and in the...
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The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps,... more
The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of individuals understood capaciously. Rights may be positive or negative, legal, constitutional, political, institutional, or moral, and might have either libertarian and regressive or egalitarian and redistributive consequences. Regardless, we should think about our collective life through the lens of individual rights rather than through the lens of the moral duty of legislators,...
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First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor... more
First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law. I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell as arguing, first, that traditional Anglo-American jurisprudence has not sufficiently theorised the role of culture and cultures, second, that multiculturalism renders inadequate, for different reasons, both Weberian and non-positivist or non-instrumental accounts of law’s liberal aspirations, and third, that one possible way for law to contribute constructively to a mor...
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The article aims to make problematic the relative absence of questions about the affirmative duties of legislators to pass laws to achieve various welfarist ends in liberal constitutional theory. The duty to legislate for the public good... more
The article aims to make problematic the relative absence of questions about the affirmative duties of legislators to pass laws to achieve various welfarist ends in liberal constitutional theory. The duty to legislate for the public good is a bedrock of both classical and modern liberal theory, yet there is almost nothing in liberal constitutional theory about the possible constitutional grounding of the moral duties, whether enumerated or unenumerated, of legislators. The full explanation for this absence rests on a set of jurisprudential assumptions that lead moral questions about governance to be understood solely as adjudicative questions of law. Yet it has become quite clear that governmental officials can on occasion be in profound breach of their non-justiciable duty to provide protection of the laws.” If that matters, then constitutional lawyers and scholars ought not wall themselves off from the ensuing dialogue regarding the nature of that duty and its breach
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Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current... more
Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point. Thus, I think Levinson\u27s claim is essentially right, and I would like to make two friendly amend...
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This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon\u27s theoretical project, the article proposes some... more
This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon\u27s theoretical project, the article proposes some modifications to the original that are drawn from, in part, the critiques of queer theorists. The crucial departure proposed here concerns MacKinnon\u27s critique of desire, which in my view is deeply mistaken. Rather than distrusting the sexual desires of women as hopelessly polluted by subordination, we should be neutral -- neither critical nor confident -- regarding the degree to which our desires, if fulfilled, will give pleasure, and whether their satiation will serve our interests. What we should doubt, I will argue, are not women\u27s sexual desires but rather women\u27s sexual choices to engage in sex -- of any description -- that is not desired. In other words, it is the undesired sex in which we engage, and not either the sex we desire, or the ...
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The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to... more
The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples—the right to the appellation of one’s partnership as a “marriage”—for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of minimal rationality required for upholding state action. The two types of couples were simply too indistinguishable to carry the weight of the difference between them that the people of California had tried to codify. Thus, the court struck down the state constitutional amendment. The court did so, however, b...
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Professor Dripps\u27s provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence... more
Professor Dripps\u27s provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our negative right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory. Furthermore, according to Dripps, the expropriation of sex through nonviolent means may also be wrong, and even criminally so, depending upon the means used. It is much more difficult, however, to distinguish those sexual transactions that result from impermissible, albeit nonviolent, pressures from those that result from pressures that, although perhaps not commendable, are not sufficiently egregious to be made the target of the crimin...
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In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity... more
In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity of an unpopular act, as he had been commonly understood, was a murderer. His summary execution of Billy Budd, Weisberg showed, was neither required, excused, nor justified by law. Rather, Vere engineered an unreviewable conviction and death sentence, contrary to both the letter and spirit of the governing positive law, for personal gain. But why was Weisberg’s claim so novel? Why was it that for seven decades, well over half a century, Vere’s villainy was so obscure, even to so many legally sophisticated readers? In this article, I argue that the obscurity of Vere’s villainy resulted from the dominant legal theories developed over the past seven decades. This, in turn, explains the novelty of Weisberg’s understanding of Vere’s character: his understa...
The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and... more
The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the generation, the interpretation, and the reception of law. Their scholarship is in part offered as a collective corrective to what they perceive as the legal academy’s dominant and ill-conceived bias toward reason and rationalism, when explaining legal phenomena. In my comments this morning, however, I want to pose a question that I believe has been neglected by law ...
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Research Interests: Constitutional Law, Courts, Legal History, Politics, Federalism, and 14 moreJudicial review, Supreme Court, Skepticism, Social Science Research Network, Human nature, Legislation, Constitution, Statutory Interpretation, Judicial Activism, Equal protection clause, Judicial Restraint, Special Interest Group, Commerce Clause, and Due Process clause
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In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is... more
In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is at its core. I also want to show, however, that the distinctive accomplishment of this Essay is its literary ambiguity: Both its explicit arguments for the positivist separation of law and morality, and the three enduring metaphors Holmes uses to make the case -- (1) the "bad man" from whose perspective we can clearly view the law; (2) the "prophecies" of judicial acts of power that are in the end all that "is meant by law;" and (3) the bath of "cynical acid" after which we will clearly perceive the law's contours -- support not one but at least three -- and possibly more -- understandings of, or interpretations of, legal positivism. Further, the differences between those three versions, although in impor...
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... Mercer Law Review for "Economic Man and Literary Woman: One Contrast," 39 Mercer Law Review 867. ... New York: St. Martin's, 1981. VJA Dusty Rhodes and Sandra McNeill, eds., Women against Violence against Women. London:... more
... Mercer Law Review for "Economic Man and Literary Woman: One Contrast," 39 Mercer Law Review 867. ... New York: St. Martin's, 1981. VJA Dusty Rhodes and Sandra McNeill, eds., Women against Violence against Women. London: Onlywomen Press, 1985. Page 16. Page 17. ...
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In Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that “in America the law is king.” What, precisely, is the “law” that Paine declared to have dethroned the king? Does the phrase, penned... more
In Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that “in America the law is king.” What, precisely, is the “law” that Paine declared to have dethroned the king? Does the phrase, penned by the advocate not only of our revolution but also of the rights of man everywhere, presage our modern practice of rights-based constitutionalism? This reading – in America, constitutional law is king – might also make Paine an early friend of judicial review, as he was unquestionably also a friend of United States constitutionalism, both federal and state. Paine’s manifesto can thus be read as having foreseen the unfolding of our modern court-centered constitutional consciousness. This Article argues that this is an attractive but untenable reading of Paine’s philosophy and offers evidence that Paine’s conception of the Constitution and law itself diverge crucially from dominant understandings. The Article then asks how modern constitutional practi...
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In this essay I seek to understand why many of the 2011 Occupy Wall Street protestors embraced Bartleby, the dysfunctional scrivener of Melville’s Story of Wall Street, as a fellow traveler in their movement. I first situate Bartleby the... more
In this essay I seek to understand why many of the 2011 Occupy Wall Street protestors embraced Bartleby, the dysfunctional scrivener of Melville’s Story of Wall Street, as a fellow traveler in their movement. I first situate Bartleby the Scrivener in the context of classical legal thought, expanding on some claims put forward in a seminal article on Bartleby by Brook Thomas in the 1980s. I then argue that Melville’s scrivener suffered from a psychic and political condition I call “consensual dysphoria.” Bartleby suffered from consensual dysphoria in extremis. The OWSers recognized this—thus their otherwise inexplicable empathic bond with him. Consensual dysphoria, as depicted by Melville and as suffered by Bartleby, I will urge, is a part of the debilitating legacy of classical legal thought that persists today, and in an even more developed and exaggerated form.
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Part One of this article provides a phenomenological and hedonic critique of the conception of the human – and thus the female – that underlies liberal legal feminism. Part Two presents a phenomenological critique of the conception of the... more
Part One of this article provides a phenomenological and hedonic critique of the conception of the human – and thus the female – that underlies liberal legal feminism. Part Two presents a phenomenological critique of the conception of the human – and thus the female – which underlies radical feminist legal criticism. Again, I will argue that in both cases the theory does not pay enough attention to feminism: liberal feminist legal theory owes more to liberalism than to feminism and radical feminist legal theory owes more to radicalism than it does to feminism. Both models accept a depiction of human nature which is simply untrue of women. Thus, both accept, uncritically, a claimed correlation between objective condition and subjective reality, which, I will argue, is untrue to women. As a result, both groups fail to address the distinctive quality of women's subjective, hedonic lives, and the theories they have generated therefore have the potential to backfire – badly – against...
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The "right to contract," whether originating in the Constitution, common law, or natural law, has been long and widely felt to be in tension with our civil rights, broadly conceived. (1) The individual himself, we generally... more
The "right to contract," whether originating in the Constitution, common law, or natural law, has been long and widely felt to be in tension with our civil rights, broadly conceived. (1) The individual himself, we generally believe, and only the individual, should decide the scope and terms of his affirmative, voluntary, and other-regarding undertakings. When he does so through contract, the individual and only the individual should determine the terms under which he will perform those duties. The civil rights laws of the nineteenth, twentieth, and early twenty-first centuries, and the various rights they create interfere with these natural freedoms. So, for example, our freedom to hire whomever we wish to hire, and then our freedom to fire them at will is compromised by our obligation under the Civil Rights Acts of 1964 (2) to not discriminate against candidates for employment or for promotions on impermissible grounds of race, sex, ethnicity, age, or disability, at least...
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Legal scholarship, under attack from critics both inside and outside the legal academy, is on the horns of a “normativity” dilemma. To some critics, legal scholarship isn’t scholarship, because it’s too normative; while to others, it may... more
Legal scholarship, under attack from critics both inside and outside the legal academy, is on the horns of a “normativity” dilemma. To some critics, legal scholarship isn’t scholarship, because it’s too normative; while to others, it may be scholarship, but it’s not legal because it’s not normative enough. In this article, I address one side of this issue, what I call the anti-normativity complaint: to wit, that legal scholarship is somehow not “true scholarship” because so much of it is overtly normative. Legal scholarship, according to this strand of criticism, isn’t true scholarship because of the dominance of “ought” statements: if it aims to make the law, or the world law governs, better, and aims to do so through using legal materials and a legal methodology, it isn’t scholarship. So, we shouldn’t do it. After analyzing various contours of the anti-normativity critique, I make the case that legal scholarship is and should be about what justice requires. It therefore must be no...
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The essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion... more
The essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support. These marginalized groups need greater community and state assistance with the demands of parenting, and the equation of reproductive justice with a right to terminate a pregnancy is in tension with a political or legal agenda for meeting those needs. The essay then explores the possibility of creating a right to legal abort...
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En route to finding the Defense of Marriage Act (DOMA) an unconstitutional violation of the Fifth Amendment’s Equal Protection Clause, the Second Circuit Court of Appeals in Windsor v. United States1 gave short shrift to one of Congress’s... more
En route to finding the Defense of Marriage Act (DOMA) an unconstitutional violation of the Fifth Amendment’s Equal Protection Clause, the Second Circuit Court of Appeals in Windsor v. United States1 gave short shrift to one of Congress’s primary arguments in defense of the Act: that the federal government has a compelling interest in limiting federal marriage benefits to opposite-sex couples because traditional marriage has the laudable purpose—or function—of channeling the heterosexual sex that creates children into a way of life that provides the optimal environment for the rearing of those children.2 In other words, DOMA aims to minimize irresponsible heterosexual sex and procreation, thereby limiting the number of children born outside of marriage and minimizing the dependency of single parents and their children on state assistance. As a number of courts—whether state or federal, and whether operating under state or federal constitutional guarantees3—have done in reviewing DOM...
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Professors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this... more
Professors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this Response, I suggest that Just Relationships is also an exemplar — perhaps par excellence — of an emergent form of critical discourse, which may itself foreshadow a paradigm shift in contemporary critical legal scholarship. That new form of scholarship might usefully be dubbed “the new legal criticism.” The label serves partly as an echo of the “New Criticism” movement that emerged in literary criticism in the middle of the twentieth-century, which, in methodological ways, the new legal criticism very much resembles. But primarily, the label “new legal criticism” suggests that this ascendant group of legal scholars articulates a different point of departure for critical thinking about law — particularly for critical thinking about private law — from that ...
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This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon's theoretical project, the article proposes some... more
This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon's theoretical project, the article proposes some modifications to the original that are drawn from, in part, the critiques of queer theorists. The crucial departure proposed here concerns MacKinnon's "critique of desire," which in my view is deeply mistaken. Rather than distrusting the sexual desires of women as hopelessly polluted by subordination, we should be neutral - neither critical nor confident - regarding the degree to which our desires, if fulfilled, will give pleasure, and whether their satiation will serve our interests. What we should doubt, I will argue, are not women's sexual desires but rather women's sexual choices to engage in sex - of any description - that is not desired. In other words, it is the undesired sex in which we engage, and not either the sex we des...
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This article ultimately suggests one way to address the problem of nonconsensual sex, assault, and rape on college campuses, but it does so by focusing on a topic that our conversations about nonconsensual sex have often marginalized:... more
This article ultimately suggests one way to address the problem of nonconsensual sex, assault, and rape on college campuses, but it does so by focusing on a topic that our conversations about nonconsensual sex have often marginalized: harms occasioned by consensual but unwanted sex. I argue that the party who does not physically desire, does not emotionally welcome, and does not take pleasure in sex, has sometimes been harmed by that sex by virtue of its unwelcomeness, and that the harm is serious enough that we need to attend to it. Further, the harms caused by this sex are not simply psychological or emotional; they are political. I label this political harm “consensual sexual dysphoria”– the alienation and profound discomfort within one’s body caused by the sufferance of unwanted, undesired, unpleasurable and unwelcome – albeit consensual – sex that, over time, undermines one’s equality in a social and legal world that presupposes the moral as well as legal sufficiency of consent...
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The article discusses jurisprudential as opposed to purely historical and legal reasons for our failure to either recognize or discover positive rights in our constitutional tradition. By delegating constitutional law to courts, we... more
The article discusses jurisprudential as opposed to purely historical and legal reasons for our failure to either recognize or discover positive rights in our constitutional tradition. By delegating constitutional law to courts, we perhaps unwittingly tie our political morality to a form of decision making - adjudication - that must and likely should police against abuses of public power, just as it polices in the civil law sphere against abuses of private power. Constitutionalism and constitutional discourse cannot, so long as it is conducted through adjudicative channels, develop a body of principles conducive to the moral deployment of power, as opposed to challenging or bucking its misuse. One cost of this, relatively unreckoned even by our contemporary critics of judicial review, is the erosion of any conception of politics (rather than law) as being a potentially ennobling human practice.
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Randall and Venkatesh’s important essay Criminalizing Sexual Violence against Women in Intimate Relationships is a breakthrough in our understanding of human rights, rape, and the institution of marriage, and the intersection of the... more
Randall and Venkatesh’s important essay Criminalizing Sexual Violence against Women in Intimate Relationships is a breakthrough in our understanding of human rights, rape, and the institution of marriage, and the intersection of the three. Rape within marriage, the authors argue, strips its victims of multiple human rights, and therefore any state’s refusal to criminalize it is a violation of international law. However, more than half the countries in the world, according to the authors, fail to explicitly criminalize rape or sexual assault within marriage (which I will sometimes call “marital rape” in this comment). In this comment I will first briefly elaborate on the authors’ thesis, emphasizing what it tells us about the meaning, respectively, of “marriage,” “rape,” and “law.” I will then register three objections, or qualifications, to their argument.
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Research Interests: Jurisprudence, Constitutional Law, Human Rights, Criticism, FISH, and 3 moreFormalism, Rights, and FORMULATION
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The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps,... more
The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of individuals understood capaciously. Rights may be positive or negative, legal, constitutional, political, institutional, or moral, and might have either libertarian and regressive or egalitarian and redistributive consequences. Regardless, we should think about our collective life through the lens of individual rights rather than through the lens of the moral duty of legislators,...
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Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin... more
Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or her interests is entitled, morally and legally, to a reasoned decision illustrating why moral principles held constitutionally dispositive in earlier cases regarding similarly situated groups should not be equally dispositive for him or her. When done well, the result of this method is what Dworkin has called an, "integrity of principle," which, in...
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In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is... more
In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is at its core. I also want to show, however, that the distinctive accomplishment of this Essay is its literary ambiguity: Both its explicit arguments for the positivist separation of law and morality, and the three enduring metaphors Holmes uses to make the case -- (1) the "bad man" from whose perspective we can clearly view the law; (2) the "prophecies" of judicial acts of power that are in the end all that "is meant by law;" and (3) the bath of "cynical acid" after which we will clearly perceive the law's contours -- support not one but at least three -- and possibly more -- understandings of, or interpretations of, legal positivism. Further, the differences between those three versions, although in impor...
This article presents four major objections to Jeremy Waldron’s claim that for “Rule of Law” to exist it we must move beyond basic formal requirements that laws be general and knowable rules we can all comply with, towards substantive... more
This article presents four major objections to Jeremy Waldron’s claim that for “Rule of Law” to exist it we must move beyond basic formal requirements that laws be general and knowable rules we can all comply with, towards substantive requirements that when the law imposes its censorial and punitive will upon us, it is applied in a way that acknowledges our intelligence and respects our individual dignity. After challenging Waldron’s claim, the author suggests that if Rule of Law theorizing is intended to capture our ideals of law, then the three paradigms of Rule of Law scholarship that Waldron has usefully identified and distinguished — formal, procedural, and substantive — need to move beyond identifying the Rule of Law as a means to counter the pernicious abuse of power by a too-fierce state besotted by its own political will, and acknowledge the ways in which the law expresses the will of the state to protect weaker parties harmed not by the state but by powerful private entities.
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The article compares programmatic questions from the Law and Literature movement from the 1970s to 1990s with more recent suggestions regarding the foundational questions for the Law and Culture movement. It argues that in both movements,... more
The article compares programmatic questions from the Law and Literature movement from the 1970s to 1990s with more recent suggestions regarding the foundational questions for the Law and Culture movement. It argues that in both movements, but particularly the latter, scholars have focused on questions regarding the nature of law, culture, and interpretation, and neglected substantive jurisprudential claims regarding law sometimes found in literature and other cultural texts. It argues that this emphasis on theory over substance is unfortunate. To illustrate, the piece examines a false rape claim brought against some university athletes in Durham, North Carolina in the summer of 2006, and a novelistic depiction of sexual exploitation in Tom Wolfe’s popular novel, I Am Charlotte Simmons. The novel was repeatedly invoked by commentators and bloggers when the charge was first made and widely believed, to make the case that the Duke campus was drenched in a culture tolerant of rape. The ...
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Milner Ball's extraordinary book, The Word and the Law, begins with a narrative account of "seven practices in law." The seven practitioners Ball brings to life for the reader share two powerful traits: they all, in quite... more
Milner Ball's extraordinary book, The Word and the Law, begins with a narrative account of "seven practices in law." The seven practitioners Ball brings to life for the reader share two powerful traits: they all, in quite different ways, use law to lessen the multiple sufferings of various communities of poor people, and they all, by doing so, strengthen the communities within which and for which they labor. The reader gains from these accounts not only a sympathetic understanding of the lives of seven lawyers, but a renewed sense of the possibilities their practices present. This can be put any number of ways. Perhaps most simply, Ball's retelling of these practices opens the possibility of finding in "legal practice" a vehicle for helping people, for attending with care to the needs of people, for making a change in the world for the better, for acting with compassion toward the end of social justice. These practices deserve our admiration, but they are...
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Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts's opinion, in... more
Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts's opinion, in which he found that the Commerce Clause did not authorize Congress to enact the "individual mandate" section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although "held" might be stating it too strongly) that the Commerce Clause does not authorize Congress to regulate the inactivity of individuals — the "act" of not buying health insurance — even if that inactivity impacts interstate commerce. Rather, the Clause only authorizes congressional regulation where there is some activity of a commercial nature there to be regulated...
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Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified... more
Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The "constitutional faithful" argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of that determinacy, judicial review can indeed be brought within the rubric of liberalism. Taking issue with the constitutional faithful is a group who might be called "constitutional sceptics." Scholars in this group see, in every constitutional phrase or doctrine, the possibility of multiple int...
The article discusses jurisprudential as opposed to purely historical and legal reasons for our failure to either recognize or discover positive rights in our constitutional tradition. By delegating constitutional law to courts, we... more
The article discusses jurisprudential as opposed to purely historical and legal reasons for our failure to either recognize or discover positive rights in our constitutional tradition. By delegating constitutional law to courts, we perhaps unwittingly tie our political morality to a form of decision making -- adjudication -- that must and likely should police against abuses of public power, just as it polices in the civil law sphere against abuses of private power. Constitutionalism and constitutional discourse cannot, so long as it is conducted through adjudicative channels, develop a body of principles conducive to the moral deployment of power, as opposed to challenging or bucking its misuse. One cost of this, relatively unreckoned even by our contemporary critics of judicial review, is the erosion of any conception of politics (rather than law) as being a potentially ennobling human practice.
Does the Fourteenth Amendment and its Equal Protection Clause – the promise that "no state shall deny equal protection of the laws" – have any relevance to the progressive project of reducing economic inequality in various... more
Does the Fourteenth Amendment and its Equal Protection Clause – the promise that "no state shall deny equal protection of the laws" – have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts – the adjudicated Constitution – or what I propose to call the legislated Constitution, the Constitution looked to by the conscientious legislator as he or she seeks to fulfill her political obligations. My claim in this chapter is that the legislated, rather than the adjudicated, Constitution can more plausibly be read as guaranteeing an equality that is supportive of progressive goals rather than in tension with them. Programmatically, I will ...
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Law schools, both innovative and traditional, cutting edge and hidebound, demand and therefore teach tolerance, civil respect for those whose views and dreams differ from our own, a commitment to the equal dignity of all persons, an... more
Law schools, both innovative and traditional, cutting edge and hidebound, demand and therefore teach tolerance, civil respect for those whose views and dreams differ from our own, a commitment to the equal dignity of all persons, an awareness of the individuality of each of us, and the challenges that those differences and that equality pose to the generalizing impulse in law. Likewise, law schools, virtually everywhere, convey or should convey a sensitivity to bare or naked human vulnerability, mortality, weakness, and need, and therefore a sense in students of the moral need of all of us for law’s protection, as well as the challenge of creating it justly and in a way that is not overly intrusive of our privacy or liberty. All of these legal values are deeply embedded in law schools’ curriculum, pedagogy and faculty scholarship, and all of them have helped to forge a profession that for its known flaws has structured a morally sound body of rules for all of us to live within. That...
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Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the... more
Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment's Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu's argument is not simply that Congress may, within the grant of power of the Fourteenth Amendment, address educational inequality, if it sees fit to do so (thus withstanding federalism challenges). Rather, Liu's claim is that the states, and Congress, jointly must do so. The Constitution imposes a duty on government to educate, and confers a positive rig...
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This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon's theoretical project, the article proposes some... more
This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon's theoretical project, the article proposes some modifications to the original that are drawn from, in part, the critiques of queer theorists. The crucial departure proposed here concerns MacKinnon's "critique of desire," which in my view is deeply mistaken. Rather than distrusting the sexual desires of women as hopelessly polluted by subordination, we should be neutral -- neither critical nor confident -- regarding the degree to which our desires, if fulfilled, will give pleasure, and whether their satiation will serve our interests. What we should doubt, I will argue, are not women's sexual desires but rather women's sexual choices to engage in sex -- of any description -- that is not desired. In other words, it is the undesired sex in which we engage, and not either the sex we...
The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a... more
The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a national election for the Presidency of the United States. Now, as Balkan and Levinson would argue, this seventh, "prosecutorial" response -- that the Court's action was not just wrong but criminal -- is also not available to a devotee of either radical or moderate indeterminacy. Even assuming both criminal intent and severe harm-a wrongful, specific intent to thwart the democratic outcome and a profound harm to democracy-an element of the crime, namely the act, which in this case has to be misstating the law, cannot be borne out. The indeterminacy thesis, if true, logically precludes the moral or legal condemnation of a certain sort of criminality and venality -- that of the official who intentionally and with harmful consequences violat...
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Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current... more
Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point.Thus, I think Levinson's claim is essentially right, and I would like to make two friendly amend...
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As we approach the new century and the new millennium, those of us who are legal professionals in liberal capitalist democracies need to drastically improve our practices of law if we are to bring those practices in line with our... more
As we approach the new century and the new millennium, those of us who are legal professionals in liberal capitalist democracies need to drastically improve our practices of law if we are to bring those practices in line with our professed ideals. The commodification and marketing of legal services, for example, combined with a nearly blind commitment to overly combative advocacy, puts legal assistance beyond the means of large segments of the public, severely undercutting our commitment to equality before the law. A different and perhaps harder question, however, is whether the ideals against which we judge our practices are themselves in need of rethinking. What are our aspirations, for law, and for the rule of law, in a liberal society at the turn of the millennium?
The critical interpretation I will offer of the interpretive turn will emphasize two of its relatively unremarked features. First, I want to emphasize, indeed insist upon, its multiplicity. There has been, I will argue, not one... more
The critical interpretation I will offer of the interpretive turn will emphasize two of its relatively unremarked features. First, I want to emphasize, indeed insist upon, its multiplicity. There has been, I will argue, not one interpretive turn in legal theory, but several, or at least, several distinct ways in which the interpretive turn has altered the direction of critical legal thought. More concretely, as I will argue in the bulk of this Article, there have been at least seven such turns in legal thought, and my first goal is simply to map them out. Second, I want to try to clarify, in my interpretation of various interpretive turns of legal theory and critical legal theory, not so much the nature of hermeneutic interpretation - the subject in some way of all of these articles - as the nature of the turn. Every turn in life is a turn away from something as well as a turn toward something. This is as true of turns in critical legal theory as it is true of turns on the Appalachi...
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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... more
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...
Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy - the ability to understand not just the situation... more
Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy - the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit. Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges and justices.Somehow, however, this idea, viewed as so utterly mainstream for much of the last century’s worth of writing about judging, has, in the first decade of the twenty first century, become positively toxic, at least in the context of confirmation battles to the Supreme Court. What was once regarded as non-problematically central to good judging is...
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1. The unbearable lightness of justice 2. Politics and its discontents 3. The bifurcated academy: the practice vs. the study of law 4. Confronting our existential challenge.
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The heart of legal positivism, according to Jeremy Bentham and his then-contemporary band of “radicals,” as well as modern positivist legal theorists, was what is now confusedly called the “separability thesis”: the law that is, is not... more
The heart of legal positivism, according to Jeremy Bentham and his then-contemporary band of “radicals,” as well as modern positivist legal theorists, was what is now confusedly called the “separability thesis”: the law that is, is not necessarily the same as the law that ought to be. That a law exists, positivists insisted, then as now, does not imply anything one way or the other about its merits or demerits, about whether it is just, or about whether it is a good law: laws are not necessarily good simply by virtue of the fact of their existence; some laws are unjust or unwise but nevertheless law.
Research Interests: Sociology, Jurisprudence, Constitutional Law, Human Rights, Legal positivism, and 9 moreRights, Utility, Hart, Cost Benefit Analysis, Cover, M, J, Positivist, and apply
Research Interests: Jurisprudence, Human Rights, Natural Law, Legal positivism, Powers, and 5 moreCriticism, Definitions, Hart, Mill, and George
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What do we mean by legal justice, as opposed to distributive, or social, or political justice; what is the justice, that is, we hope law promotes? What is the justice that lawyers and judges, peculiarly, are professionally committed to... more
What do we mean by legal justice, as opposed to distributive, or social, or political justice; what is the justice, that is, we hope law promotes? What is the justice that lawyers and judges, peculiarly, are professionally committed to pursue? What is the virtue around which, arguably, this profession, and the individuals within it, have defined their public lives? Justice
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This essay is a review of Social Justice: The Moral Foundations of Public Health and Health Policy by Madison Powers & Ruth Faden (2006). In this pathbreaking book, senior bioethicists Powers and Faden confront foundational issues about... more
This essay is a review of Social Justice: The Moral Foundations of Public Health and Health Policy by Madison Powers & Ruth Faden (2006). In this pathbreaking book, senior bioethicists Powers and Faden confront foundational issues about health and justice. How much inequality in health can a just society tolerate? In a world filled with inequalities in health and well-being,
Research Interests: Social Policy, Health Economics, Bioethics, Political Science, Social Justice, and 11 moreMedical Ethics, Economic Development, Public Health, Health Policy, Social Groups, Social Inequalities, Social Inequality, Human right, Social Science Research Network, Economic analysis, and inequalities in health
The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to... more
The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed
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Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul... more
Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the "principle of judicial exclusivity" in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become,
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Real Rape. By Susan Estrich. Cambridge: Harvard University Press, 1987. ... "Statutory Rape: A Feminist Critique of Rights Analysis." By Frances Olsen. Texas Law Review 63 (October 1984): 387-432. ... "Jurisprudence and... more
Real Rape. By Susan Estrich. Cambridge: Harvard University Press, 1987. ... "Statutory Rape: A Feminist Critique of Rights Analysis." By Frances Olsen. Texas Law Review 63 (October 1984): 387-432. ... "Jurisprudence and Gender." By Robin West. University of Chicago ...
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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... more
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...
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Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This... more
Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the suffering should be alleviated, and those lives should be enriched. To do so must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither entirely chargeable to our societal account, nor is it within our control. A "lesser life" marred by the early loss of a parent, a parent's mourning occasioned by the accidental death of a child, or an adult's ongoing trauma set off by a childhood disease, although cosmically unjust, is neither unjust in the ordinary sense, nor is it easily ameliorated through politics. In contrast, the suffer...
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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... more
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...
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A quarter-century has passed since the US Supreme Court decided Roe v. Wade in 1973. In recognition of the intense debates that continue to surround the question of abortion rights, the editors present the following forum, based on Eileen... more
A quarter-century has passed since the US Supreme Court decided Roe v. Wade in 1973. In recognition of the intense debates that continue to surround the question of abortion rights, the editors present the following forum, based on Eileen McDonagh's recent book, Breaking ...
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NEW YORK UNIVERSITY PRESS New York and London Copyright © 1997 by New York University All rights reserved Library of Congress Cataloging-in-Publication Data West, Robin, 1954-Caring for justice / Robin West. p. cm. Includes... more
NEW YORK UNIVERSITY PRESS New York and London Copyright © 1997 by New York University All rights reserved Library of Congress Cataloging-in-Publication Data West, Robin, 1954-Caring for justice / Robin West. p. cm. Includes bibliographical references and index. Contents : ...
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Let us take, as a starting assumption, the Benthamic understanding of the point of law: We should make laws that will increase the overall happiness of the people whose lives are affected by them. But how should we go about doing that?... more
Let us take, as a starting assumption, the Benthamic understanding of the point of law: We should make laws that will increase the overall happiness of the people whose lives are affected by them. But how should we go about doing that? And more particularly, what role, if any, should our held desires play in the task of ascertaining the content of our happiness? And when, if ever, should we defer to the desires of the affected masses, and when should we not, in determining what will or will not promote happiness? The classical, or “hedonic,” utilitarians of the eighteenth and nineteenth centuries suggested a number of answers to these related questions, of which I will mention two.
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During the last 25 years, rape law has undergone a profound transformation, as the articles in this symposium clearly show. To mention just three of the more striking doctrinal reformations: All states have repealed the most egregious... more
During the last 25 years, rape law has undergone a profound transformation, as the articles in this symposium clearly show. To mention just three of the more striking doctrinal reformations: All states have repealed the most egregious aspects of die marital rape exception; most have abandoned the “utmost resistance” requirement; and all have enacted rape shield laws to protect complaining witnesses from intrusive inquiries into their sexual history. All three reforms were the product of feminist agitation, all three were aimed toward the general end of redirecting rape law toward the protection of women's, rather than…
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Pornography is notoriously hard to define, yet like the Supreme Court all of us think we know it when we see it. Even if we cannot define pornography, we can say if something is or is not pornographic. How do we do this? More precisely,... more
Pornography is notoriously hard to define, yet like the Supreme Court all of us think we know it when we see it. Even if we cannot define pornography, we can say if something is or is not pornographic. How do we do this? More precisely, what is it that we think we know, when we think that something is or is not pornographic? We make these experiential determinations by reference to what I call our “traditional conception” of pornography. This conception is not based on definitions of pornography, for we have none. Rather, the traditional conception consists of broadly stated and widely believed inductive generalizations, which are in turn based on a multitude of common and shared experiences with pornographic materials. Recently—in the last ten years or so—that traditional conception of pornography has begun to change. But it is changing slowly. It still dominates our sense of what is and is not pornographic and our arguments about the value of pornography.
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... the most political, albeit most literal les-son one can possibly draw from this story, which is that the work of being a scrivener in a ... but just as anxious to insist that the story is indeed about the alienation of labor, Thomas... more
... the most political, albeit most literal les-son one can possibly draw from this story, which is that the work of being a scrivener in a ... but just as anxious to insist that the story is indeed about the alienation of labor, Thomas argues that we should understand the char-acter Bartleby ...
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... "s The "law" that Kafka describes in, for example, his parable "Before the Law"9 is "malevolent whimsy."10 Therefore, what Kafka calls "law" is not really law at all. ... Kafka depicts as... more
... "s The "law" that Kafka describes in, for example, his parable "Before the Law"9 is "malevolent whimsy."10 Therefore, what Kafka calls "law" is not really law at all. ... Kafka depicts as malevolent whimsy is not really law - completely begs the question of the nature of "real" law. ...
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Abstract: I have just a few comments. The first comment is a contribution to the''analytic" question posed by Professor Black's work and made explicit by Professors Peller and Tushnet's paper. To make the case for... more
Abstract: I have just a few comments. The first comment is a contribution to the''analytic" question posed by Professor Black's work and made explicit by Professors Peller and Tushnet's paper. To make the case for the constitutional status of welfare rights, I do not ...
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In a short and artful essay that evoked a blaze of criticism, 1 Martha Nussbaum urged us a few years ago to heed the ancient call for a virtuous and humane cosmopolitanism: if we are sincere in our societal commitment to justice, and... more
In a short and artful essay that evoked a blaze of criticism, 1 Martha Nussbaum urged us a few years ago to heed the ancient call for a virtuous and humane cosmopolitanism: if we are sincere in our societal commitment to justice, and genuine in our individual quest to lead a ...
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In the early seventies, Ronald Dworkin wrote a series of influential essays in which he claimed that legal argument is and ought to be a distinctive sort of moral practice: when done well, legal argument seeks answers to legal questions... more
In the early seventies, Ronald Dworkin wrote a series of influential essays in which he claimed that legal argument is and ought to be a distinctive sort of moral practice: when done well, legal argument seeks answers to legal questions by interpreting existing legal ...
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Abstract: LH LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts... more
Abstract: LH LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even ...
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Abstract: Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of" liberal legalism" against a group of modern critics who have only one thing in common: their use of either particular... more
Abstract: Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of" liberal legalism" against a group of modern critics who have only one thing in common: their use of either particular pieces of literature or literary theory to mount legal ...
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Abstract: First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law... more
Abstract: First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law review article entitled My Body, My ...
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Abstract: Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two... more
Abstract: Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The ...
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1. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Con-stitution 7-8, 10-11, 81-83 (1996) [hereinafter Dworkin, Freedom's Law]. 2. Id. at 103; Ronald Dworkin, Sex, Death, and the Courts, NY Rev. Books, Aug. 8,... more
1. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Con-stitution 7-8, 10-11, 81-83 (1996) [hereinafter Dworkin, Freedom's Law]. 2. Id. at 103; Ronald Dworkin, Sex, Death, and the Courts, NY Rev. Books, Aug. 8, 1996, at 44, 50. [hereinafter Dworkin, ...
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Re-Imagining Justice Progressive Interpretations of Formal Equality, Rights, and the Rule of Law Robin L. West Resurrecting the neglected question of what we mean by legal justice, this book seeks to re-imagine rather than simply critique... more
Re-Imagining Justice Progressive Interpretations of Formal Equality, Rights, and the Rule of Law Robin L. West Resurrecting the neglected question of what we mean by legal justice, this book seeks to re-imagine rather than simply critique our contemporary notions of the rule ...
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Abstract: It is commonly and rightly understood in this country that our constitutional system ensures, or seeks to ensure, that individuals are accorded the greatest degree of personal, political, social, and economic liberty possible,... more
Abstract: It is commonly and rightly understood in this country that our constitutional system ensures, or seeks to ensure, that individuals are accorded the greatest degree of personal, political, social, and economic liberty possible, consistent with a like amount of liberty ...
Abstract: Firmly embedded in every theory of judicial decision-making lies an important set of assumptions about the way government is supposed to work. Sometimes these theories about government are made explicit. More often they are not.... more
Abstract: Firmly embedded in every theory of judicial decision-making lies an important set of assumptions about the way government is supposed to work. Sometimes these theories about government are made explicit. More often they are not. Moreover, deeply ...
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130 Yale Journal of Law & the Humanities [Vol. 1: 129 ing of the process by which communities and communitarian values come to be formed.4 White, however, accords a much greater role to literature, and to "texts" of all sorts,... more
130 Yale Journal of Law & the Humanities [Vol. 1: 129 ing of the process by which communities and communitarian values come to be formed.4 White, however, accords a much greater role to literature, and to "texts" of all sorts, in this process than do the liberal legalists. ...
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University of California Press Berkeley and Los Angeles, California University of California Press, Ltd. London, England © 1994 by David J. Garrow Preface and Epilogue © 1998 by David J. Garrow First Paperback Printing 1998 Library of... more
University of California Press Berkeley and Los Angeles, California University of California Press, Ltd. London, England © 1994 by David J. Garrow Preface and Epilogue © 1998 by David J. Garrow First Paperback Printing 1998 Library of Congress Cataloging-in-Publication ...
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Does the Fourteenth Amendment and its Equal Protection Clause—the promise that no state shall deny “equal protection of the laws”1—require that public officials, either state or federal, use their sovereign power in such a way as to... more
Does the Fourteenth Amendment and its Equal Protection Clause—the promise that no state shall deny “equal protection of the laws”1—require that public officials, either state or federal, use their sovereign power in such a way as to reduce debilitating poverty? More modestly, does this Constitutional commitment to the “equal protection of the laws” require that public officials aim to ameliorate, if not eliminate, the multiple vulnerabilities of this country’s poor? Alternatively, isn’t it possible that the Fourteenth Amendment’s grand, Constitutionalized guarantee of equality— borne, after all, of struggles over enslaved laborers—carries an anti-caste or anti-subordination mandate, and is therefore at least in tension with the exploitation in the workplace of poor people for the economic profit of others? Might the Fourteenth Amendment be read as Constitutionally delegitimating the extreme economic inequalities, the physical and mental insecurities, and the debilitating vulnerabili...
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It is by now an open secret that current interpretations of the meaning of the equal protection clause of the Fourteenth Amendment, and of its relevance and mandate for contemporary problems of racial, gender, and economic justice, are... more
It is by now an open secret that current interpretations of the meaning of the equal protection clause of the Fourteenth Amendment, and of its relevance and mandate for contemporary problems of racial, gender, and economic justice, are deeply and, in a sense, hopelessly conflicted. The conflict, simply stated, is this: to the current Supreme Court, and to a sizeable and influential number of constitutional theorists, the equal protection of the laws guaranteed by the Constitution is essentially a guarantee that the categories delineated by legal rules will be rational and will be rationally related to legitimate state ends. To this group of jurists, the relevance of the equal protection clause to issues of racial justice rests on the important complementary minor premise to this guarantee of rationality: the claim, both descriptive and normative, that legislative distinctions based upon race can simply never be rational because there are no differences between the races that can in ...
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The “liberty” protected by the United States Constitution has been variously interpreted as the “liberty” of thinking persons to speak, worship and associate with others, unimpeded by onerous state law; the liberty of consumers and... more
The “liberty” protected by the United States Constitution has been variously interpreted as the “liberty” of thinking persons to speak, worship and associate with others, unimpeded by onerous state law; the liberty of consumers and producers to make individual market choices, including the choice to sell one’s labour at any price one sees fit, free of redistributive or paternalistic legislation that might restrict it; and the liberty of all of us in the domestic sphere to make choices regarding reproductive and family life, free of state law that might restrict it on grounds relating to public morals. Although the United States Supreme Court had never done so, the same phrase could be also interpreted as protecting the positive liberty of individuals to engage in decent work, to enjoy general physical safety and welfare, and to be prepared for the duties of citizenship. Such a progressive interpretation, in fact, might be more in line with the overall purpose of the Reconstruction A...
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Abstract: The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the" meaning" of a text is invariably... more
Abstract: The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the" meaning" of a text is invariably indeterminatewhat might be called the indeterminacy ...
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The Ideal of Liberty: A Comment on Michael H. v. ... Robin West Georgetown University Law Center, west@law.georgetown.edu ... Georgetown Public Law and Legal Theory Research Paper No. 11-67 ... This paper can be downloaded free of charge... more
The Ideal of Liberty: A Comment on Michael H. v. ... Robin West Georgetown University Law Center, west@law.georgetown.edu ... Georgetown Public Law and Legal Theory Research Paper No. 11-67 ... This paper can be downloaded free of charge from: http://scholarship.law. ...