About the Program
Philosophical problems rest at the heart of each area of law. Criminal law punishes people for wronging others, but what conduct is wrong exactly, and do current criminal laws prohibit only such conduct? Civil rights law prohibits discrimination, but what kinds of differential treatment are morally troubling and why? Family law governs relationships among adults and between adults and children, but what right does the state have to intervene in our personal affairs and what rights and responsibilities do parents with respect to children? Constitutional law offers special protection for freedom of speech and religion, but are speech and religion really special?
Legal philosophy also asks foundational questions about the nature of law and about which methods of legal interpretation are most justified. To discern the rule created by a statute, should judges look only at its text or may they also look to the purpose of its drafters? Should courts be bound by the rulings of past judges, and to what extent? Do our answers to these interpretive questions differ when it comes to the Constitution? Finally, jurisprudence interrogates ideas about law that underlie all these debates. When does a rule qualify as a rule of “law,” as distinct from a rule of morality or etiquette? Law purports to bind citizens and officials. Is law simply a system of rules issued by an authority and enforced with coercion, or must a law be minimally just to count as binding? In any case, what is an “authority,” and what makes an authority legitimate?
These questions of legal philosophy are not merely academic. They bear on pressing questions of social justice. The moral and philosophical assumptions that structure our current law may be justified or may be ripe for critique and revision. The Virginia faculty associated with the Center for Law & Philosophy investigate each of these questions, as well as many others. The center also facilitates exceptional scholarship through its Legal Theory Workshop and occasional symposia. We look forward to examining these questions with our students.
We live in a golden age of student surveillance. Some surveillance is old school: video cameras, school resource officers, and tip lines. Old-school...
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This article argues that the fact that an action will compound a prior injustice counts as a reason against doing the action. I call this reason The...
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John C.P. Goldberg
This special issue of the Yale Journal of Law and the Humanities contains papers presented at a March 2022 conference at Yale Law School marking the...
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Given that no two acts, events, situations, and legal cases are identical, precedential constraint necessarily involves determining which two...
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Philosophers have debated whether the advance directives of Alzheimer’s patients should be enforced, even if patients seem content in their demented...
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This short essay considers Benjamin Zipursky’s intriguing effort to identify a tradition of “American natural law theory” that links Benjamin Cardozo...
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Faculty Director
Deborah Hellman
Robert E. Scott Distinguished Professor of Law
F. Palmer Weber Research Professor of Civil Liberties and Human Rights
Director, Center for Law & Philosophy
We live in a golden age of student surveillance. Some surveillance is old school: video cameras, school resource officers, and tip lines. Old-school...
More
This article argues that the fact that an action will compound a prior injustice counts as a reason against doing the action. I call this reason The...
More
John C.P. Goldberg
This special issue of the Yale Journal of Law and the Humanities contains papers presented at a March 2022 conference at Yale Law School marking the...
More
Given that no two acts, events, situations, and legal cases are identical, precedential constraint necessarily involves determining which two...
More
Philosophers have debated whether the advance directives of Alzheimer’s patients should be enforced, even if patients seem content in their demented...
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This short essay considers Benjamin Zipursky’s intriguing effort to identify a tradition of “American natural law theory” that links Benjamin Cardozo...
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Although Lon Fuller’s importance and reputation among those who practice general jurisprudence remains contested, it is clear that he remains a major...
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Both statutory and constitutional law prohibiting discrimination forbid actions taken on the basis of certain traits. But rarely are those traits...
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This Essay was prepared for a Symposium at the Yale Law School, celebrating the one-hundredth anniversary of The Nature of the Judicial Process, the...
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Nelson Tebbe
In this review of Jamal Greene’s How Rights Went Wrong , we raise a series of questions about proportionality review as a model for adjudicating...
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Kathleen Creek
This article examines the complaint that arbitrary algorithmic decisions wrong those whom they affect. It makes three contributions. First, it...
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Judicial reasoning and rhetoric should be mutually reinforcing, but they often end up at odds. Edwards v. Vannoy offers an unusually rich opportunity...
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In this reply to Benjamin Eidelson’s Patterned Inequality, Compounding Injustice and Algorithmic Prediction , I argue that moral unease about...
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The theoretical side of the law of evidence has long been dominated, at least since Jeremy Bentham, by debates between the so-called free proof...
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Plaintiffs bringing civil lawsuits often express sentiments like “I just wanted the defendants to admit they were wrong” and “we’re worth something...
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As a number of modern sexual misconduct cases demonstrate, often there are multiple charges against a single individual under circumstances in which...
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This essay, written for a symposium honoring John Henry Schlegel, is part intellectual history, part philosophical polemic. It first briefly compares...
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This paper, a substantially revised version of a paper previously entitled (and posted as) “A Critical Examination of the Distinction between...
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One can ask two different questions about a given social, political, or legal practice. First, how, if at all, do the ideas embodied in that practice...
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At first blush, the debate between Stanley Fish and Ronald Dworkin that took place over the course of the 1980s and early 90s seems to have produced...
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Because common-law doctrines have long served as targets for critical theorists, it would be easy to see the common law and critical theory as...
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Formalism is one of the most widely applied but misunderstood features of law. Embroiled in a series of conflicts over the course of the twentieth...
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The occasion for this Article is a festschrift for Professor Robert (“Bob”) Cochran. I celebrate Bob’s significant scholarly contributions to the...
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Algorithmic decision making is both increasingly common and increasingly controversial. Critics worry that algorithmic tools are not transparent...
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This Essay responds to Professors William Baude and Stephen Sachs’s recent article, Grounding Originalism, in which they offer replies to various...
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Should the historical origins of some principle or practice affect how we think about it today? Under one standard view, the answer is “no”; to think...
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Clarity doctrines are a pervasive feature of legal practice. But there is a fundamental lack of clarity regarding the meaning of legal clarity itself...
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This Essay explores the conceptual structure of the great debate about “originalism” and “living constitutionalism.” The core of the great debate is...
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Public discourse on the Supreme Court often focuses on the divide between the liberal and conservative Justices. There has been a second persistent...
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The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel...
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This chapter presents the view that discrimination is wrong when and because it is demeaning. In order to demean, an action must both express...
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The term “Legal Pragmatism” has been used so often for so long that it may now seem to lack any clear meaning at all. But that conclusion is too quick...
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This chapter resurrects, conceptualizes and defends an old account of why disparate impact discrimination sometimes wrongs its victims. In Local 189...
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Masterpiece Cakeshop v. Colorado Civil Rights Commission presented a conflict between LGBT rights and religious liberty. The Supreme Court avoided...
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Within contemporary analytic philosophy of law, most of the scholars who understand themselves to be engaged in conceptual analysis of the concept of...
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The HLA Hart Memorial Lecture, delivered at Oxford on 9 May 2017, addresses the related questions of conflicts between rights and interests, between...
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In considering contemporary conflicts between religious freedom and equality law, a mediating principle has proved to be important, namely the rule...
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This paper sketches an aretaic theory of legislation. Such a theory posits the flourishing of humans and their communities as the end or telos of law...
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This statement addresses the nature of originalism. Originalism consists of three core ideas: (1) the original meaning of the constitutional text is...
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Many theorists treat free speech as a special right. Other theorists argue that, in order for free speech to be important, it must be a special right...
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Jerome Frank and Lon Fuller are not frequently classed together in discussions of twentieth-century legal thought. Although they both wrote...
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Theories of legal interpretation have taken a “positive turn” in recent years. Some scholars have argued that disputes over how to interpret statutes...
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The objective of the legality principle is to promote autonomy by providing individuals with opportunities to plan courses of conduct free from state...
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Entrenchment is fundamental to law. Grand documents like the U.S. Constitution, and mundane ones like city and corporate charters, entrench themselves...
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In a unanimous opinion in McDonnell v. United States, the Supreme Court invalidated the conviction of the former Governor of Virginia on charges of...
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Adam Smith is not normally identified as an important figure in law and economics. However, his Lectures on Jurisprudence contain a surprising number...
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Traditional legal perspectives on analogical reasoning in law posit that legal reasoning involves the initial step of recognizing a similarity between...
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In ordinary life, people who assess other people’s judgments typically take into account the other judgments of those they are assessing in order to...
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This paper is a response to commentary on The Force of Law offered at a symposium at the University of Chicago Law School and published in Law and...
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In numerous cases, courts have declined to apply the United Nations Convention on Contracts for the International Sale of Goods in litigation where...
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This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each...
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This article takes the critique sovereign authority over nonconsenting individuals from political theory and uses it to devise a legal theory that...
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Most of the philosophical literature on vagueness starts with the identification of the term whose vagueness is at issue -- tall, short, night, day...
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This short essay is my contribution to a conference on “opportunities for law’s intellectual history,” which took place at SUNY Buffalo Law School in...
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Dan Priel
The possibility of any meaningful relationship between the legal realists and natural law looks at first rather far-fetched. When it first appeared on...
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In this symposium essay, I examine the Court’s unwillingness to take seriously the issue of coercion as it applies to plea-bargaining practice. It is...
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Free Market Criminal Justice explains how faith in democratic politics and free markets has undermined the rule of law in US criminal process. America...
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Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated...
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For more than a century, the commercial law of intellectual property has generated intense controversy with ever-growing stakes. The central fulcrum...
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Assessing the fairness of settlements is an inherently difficult task. Because settlements foreclose the judicial determination of litigants’...
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The liberty of citizens in a democracy has two components – the negative liberty to be let alone and the positive liberty of self-government. Both are...
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A philosophical battle is being waged for the soul of Equal Protection jurisprudence. One side sees discrimination as a comparative wrong occurring...
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This paper presents the results of a quantitative analysis of writing style for the entire corpus of U.S. Supreme Court decisions. The basis for this...
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Brian Leiter’s Why Tolerate Religion? valuably clarifies the issues involved in granting religion-specific accommodations (and thus exceptions or...
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For an academic, there is no greater reward than having one's scholarship taken seriously. The five distinguished scholars who have contributed to...
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Obergefell v. Hodges held same-sex couples have a right to legal marriage. As the dissenters emphasized, this right to marriage law is anomalous...
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Adam S. Chilton
Although the question of whether constitutional rights matter is of great theoretical and practical importance, little is known about whether...
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When do psychological or emotional harms count as “injury-in-fact” for the purposes of satisfying Article III standing requirements, and when should...
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This article, written for a symposium on Bond v. United States , connects the law and economics of contract interpretation to the Supreme Court’s...
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Recently some philosophers have argued, under the name of “metaphysical quietism,” that philosophers should give up asking metaphysical questions...
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We identify a number of serious mechanical flaws in the statutes and judicial doctrines that organize fee liability for mutual fund managers...
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Michael Abramowitz
In Graham v. John Deere, the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents only to...
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Matthew Tokson’s recent article, Judicial Resistance and Legal Change, explores the possibility that the very judges charged with implementing new...
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In recent years, many litigants have found the First Amendment to be a useful tool. One could mention pornography actors, tattoo artists, death row...
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Much of the modern debate over federal common law starts from the premise that when courts articulate rules of decision as a matter of unwritten law...
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The philosopher John Searle famously observed that there is “no remark without remarkableness,” by which he meant that even simple assertions...
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This essay, the written version of the Nathanson Lecture at the University of San Diego, asks how much of legal language is ordinary language, and how...
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The distinction between speech and action lies at the foundation of any individualistic, self-expressive, or autonomy-based account of freedom of...
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Legal and prescriptive theories of blame generally propose that judgments about an actor’s mental state (e.g., her knowledge or intent) should remain...
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People are often ignorant about the legal rules that govern the most common transactions in their lives. This article analyzes one common regulatory...
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A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth...
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A constitution is a set of fundamental principles, norms, and laws that govern a political or other organization. The term can refer either to a body...
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Linghao Wang
Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on...
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This paper develops three observations triggered by Whitman's account of penal modernism; all relate to criminal law in the context of American...
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The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by...
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Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and resolve cases...
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This essay challenges the three related claims embedded within Professor Ackerman’s assertion that the distinctive wisdom of Chief Justice Warren’s...
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It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm — in Holmes’s formulation, a “clear and present...
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This review essay for the Yale Law Journal of Robert Post’s Citizens Divided: Campaign Finance Reform and the Constitution contrasts Post’s hopeful...
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Decisions about intervention can be understood as decisions about tolerance, because an act of tolerance is an act of nonintervention, and, conversely...
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Constitutions are commonly thought to express nations’ highest values. They are near-universally proclaimed in the name of “We the People” and...
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Tom Ginsburg
In recent decades, there has been a wide-ranging global movement towards constitutional review. This development poses important puzzles of political...
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This Essay investigates the concept of artificial meaning, meanings produced by entities other than individual natural persons. That investigation...
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President Obama’s 2011 Executive Order 13,563 on cost-benefit analysis (CBA) authorizes agencies to consider “human dignity” in identifying the costs...
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Elizabeth A. Gilbert
A growing body of research shows that immoral actors are judged to be more causal of and more blameworthy for bad outcomes. Prior research suggests...
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This is a review of Abner Greene's Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (2012). I begin by summarizing Greene...
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The set of teaching materials known as The Legal Process continue to exert tremendous influence over mainstream public-law scholarship. Developed by...
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In their article, Inside or Outside the System?, Professors Eric Posner and Adrian Vermeule take various legal scholars to task for committing what...
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This article is about the nature and scope of legal argument. It considers the question of whether a court, when determining the precedential weight...
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Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of...
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This essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to...
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Judges claim to resolve ambiguities in initiatives by identifying and giving force to “voter intent,” but scholars reject that on the ground that such...
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This chapter presents a normative justification of stare decisis, that is, of a court's presumptive deference to its own prior decisions. Critics...
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There are at least two competing ways of understanding when laws or other actions by governments wrongfully discriminate. On one view, the wrong...
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The concept of discrimination does many different kinds of work in the law, across the entire range of abstraction, from specific prohibitions to...
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Is a houseboat a house or a boat? This was the central question in the Supreme Court’s admiralty decision in Lozman v. city of Riviera Beach. But...
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The jurisprudential dimensions of treating custom as law have been puzzling at least since the time of Bentham and Austin. If law emanates from the...
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What makes hard cases hard, and what makes easy cases easy? A common response to H.L.A. Hart’s (mis)reading of Legal Realist is that the Realists...
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A resurgence of interest in virtue ethics has spawned its counterpart in legal theory. But in both legal theory and in moral theory, virtue ethics’...
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This paper, prepared for a conference on jurisprudential methodology in Girona, Spain, starts with the observation that much of contemporary...
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As recent questions about the legality of several American military activities make clear, most disputes about the legality of high-level official...
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This paper, prepared for the University of Frankfurt Symposium on Defeasibility in Epistemology, Ethics, law and Logic, addresses the claim of H.L.A...
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In recent years, and especially in reaction to actual and perceived security threats, there has been a growing interest in so-called preventive...
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It is often said that constitutions are mere parchment barriers that cannot by themselves limit the power of the state or guarantee respect for rights...
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Denis J. Galligan
This is the opening essay in a forthcoming collection on the social and political foundations of constitutions. The collection includes both...
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On December 17 2010, a young Tunisian street vendor protesting an abusive police official set off a wave of democratic uprisings throughout the Arab...
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It is often thought that the judicial recognition of customary international law depends on jurisprudential assumptions about the nature of legal...
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The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect...
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This Essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and...
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In his article, Retributive Justice and the Demands of Democratic Citizenship, Dan Markel explores the overlaps between democratic and retributive...
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This essay is a contribution to a book that asks the question whether life without parole (LWOP) is the new death penalty. The essay claims that the...
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Paul H. Robinson
A growing literature on procedural fairness suggests that there is practical value in enhancing a criminal justice system's "legitimacy" with the...
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Two reform movements transformed American criminal law in the four decades that began in the late 1960s. Their origins and effects were starkly...
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This article examines recent trends in judicial interpretation of mens rea requirements in federal crimes. Strict liability as to some elements of...
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Conventional wisdom, embraced by judges and scholars alike, holds that mandatory disclosure chills political speech. That must be right for some...
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In seeking to develop a more coherent theory of the First Amendment’s Expression Clauses, the Supreme Court has largely overlooked an important...
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Robert Alexy has for many years been a prominent analyst of the role of principles in legal argumentation, and an equally prominent defender of the...
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In most modern legal systems, legal rules are widely understood as defeasible, in the sense that the prescriptions of the legal rule may legitimately...
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The nature of legal reasoning, and its relationship with reasoning, has long been a topic of importance for lawyers and legal scholars. But it is also...
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What is it for something to have a nature? And what is it for law to have a nature? Analysis of the concept of law has often been taken to be a search...
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Is breaking the law a politically risky act for politicians and other public officials? The question is especially important in the context of...
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This article on precedent, prepared as an entry for the forthcoming Routledge Companion to the Philosophy of Law (Andrei Marmor, ed.), examines the...
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Current proposals, debates, and laws regarding prohibitions on Holocaust denial can be understand as a hate-speech focused instance of the pervasive...
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An important objection to political liberalism is that it provides no means by which to decide conflicts between public and non-public reasons. This...
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Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to respond...
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Michael Abramowitz
In Graham v. John Deere, the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents only to...
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Almost no one in the legal academy has written more (or better) about guilty pleas and plea bargains than Stephanos Bibas. In a forthcoming article...
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Jonathan Remy Nash
May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is "yes." From the Progressive era to the present...
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Max M. Schanzenbach
We study whether changes to standards of review affect district court sentencing decisions under the United States Sentencing Guidelines. Departures...
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This paper develops a “consensus voting” model for estimating preferences of judges on federal circuit courts. Rather than assuming sincere voting, as...
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A central point of contention in the national debate over same-sex marriage is the importance of preserving tradition. That debate also features...
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Empirical studies have examined the effects of law and politics on judicial decision-making, but many legal scholars are dissatisfied with how these...
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Lawyers and philosophers have misunderstood the rights of bequest and inheritance within Locke’s theory of property. While lawyers assume these are...
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Experts often seek to apply social science to the facts of a particular case. Sometimes experts link social science findings to cases using only their...
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This essay responds to comments on our earlier paper discussing the American Sociological Association’s amicus brief in the Wal-Mart v. Dukes case. We...
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In a rarely-discussed passage in the Principles of the Penal Code, Jeremy Bentham discussed a category of offenses he labeled presumed, or evidentiary...
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From 1938 to 1940 Karl Llewellyn worked on and substantially completed a book-length manuscript entitled The Theory of Rules. With the book almost...
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An important question in free speech theory and in Millian scholarship is the relationship between Chapters One and Two of Mill’s On Liberty. This...
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Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism largely from Hart, and the debates about legal...
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Richard Zeckhauser
For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation...
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An important objection to the idea of public reason is that it permits and perhaps encourages citizens and public officials to give insincere...
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Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on...
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Jerome Frank occupies an odd place in the intellectual history of American law. He and Karl Llewellyn were long considered the two thought-leaders of...
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Charging discretion is no monolith. Instead, prosecutors consider three sets of reasons to decline or pursue charges: legal reasons, administrative...
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This paper reviews Direct Democracy and the Courts by Ken Miller. Voters in many states use ballot propositions to enact laws on everything from term...
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Robert D. Cooter
Citizens in many states use direct democracy to make laws on everything from soda bottles and horsemeat to affirmative action and same-sex marriage...
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A pervasive problem in public discourse is the seemingly increasing prevalence in public debate of demonstrably false factual propositions, such as...
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Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay...
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In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's...
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Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less...
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Political scientists have shown that one can anticipate how a judge will decide a case more often than chance, or a reading of the facts, might allow...
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This paper responds to a provocative essay by Curtis Bradley and Mitu Gulati on exiting from customary international law. Bradley and Gulati argue...
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The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I...
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This essay examines the relationship between constitutional narratives, causation, and normativity in the context of Barry Friedman’s book, The Will...
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In Constructing Commons in the Cultural Environment, Michael J. Madison, Brett M. Frischmann, and Katherine J. Strandburg offer an innovative and...
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Scholars have for decades sought to measure judicial ideology and its impact on judicial behavior. However, they have not always taken care to...
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Few Supreme Court decisions have been as completely unsurprising as Pearson v. Callahan. Pearson overruled Saucier v. Katz, which required courts to...
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This article is based on a chapter written for The Rule of Law Handbook: A Practitioner's Guide, a handbook used as a text at The Judge Advocate...
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On June 26, 2008, the United States Supreme Court handed down its 5-4 decision in District of Columbia v. Heller, striking a District of Columbia...
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The European Court of Justice (ECJ) has come under increasing criticism for overstepping its institutional authority in tax cases by invalidating...
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Cognitive scientists and others who do research on analogical reasoning often claim that the use of precedent in law is an application of reasoning by...
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Ex parte Young does not represent an exception to ordinary principles of sovereign immunity, it does not employ a legal fiction, it does not imply a...
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Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts, but...
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David Blankfein-Tabachnick
The Rawlsian texts appear not to be consistent with regard to the status of the right of freedom of association. Interestingly, Rawls's early work...
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In Dukes v. Wal-Mart, the Ninth Circuit upheld the certification of the largest employment discrimination class in history, with more than 1.5 million...
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Adam J. Hirsch
Perceptions of proximity matter to people. When something that harms them was nearly avoided, or when they narrowly escape being harmed by something...
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In this paper, we analyze how stand-up comedians protect their jokes using a system of social norms. Intellectual property law has never protected...
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Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have...
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The 1958 debate in the pages of the Harvard Law Review between Lon Fuller and H.L.A. Hart is one of the landmarks of modern jurisprudence. And...
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This paper considers Justice Breyer's dissent in District of Columbia v. Heller - in which the Court established an individual right to bear arms - as...
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The idea that judges have a duty to be sincere or candid in their legal opinions has been subject to systematic criticism in recent years. Critics...
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What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from...
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It is commonly thought that the United States is a highly legalistic nation, and as a result it is commonly thought as well that official disobedience...
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This article is a response to Frederick Schauer, On the Supposed Jury-Dependence of Evidence Law, 155 U. Pa. L. Rev. 165 (2006). In bench trial judges...
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David Blankfein-Tabachnick
Recent scholarship has argued that post-institutional theories of distributive justice, specifically Rawlsianism, are compatible with a principled...
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In an article for a symposium issue of the Cincinnati Law Review on the thirtieth anniversary of the Tarasoff decision, finding therapists potentially...
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Option theory is beginning to generate robust insights in the legal literature, and it is particularly well-suited to contract law. This Article...
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Despite generating thousands of cases on important public issues, the single subject rule remains a source of uncertainty and inconsistency. The root...
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As long as some courts review the work of others, there will be situations where governing precedent shifts during the interim. Although such...
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Jonathan Klick
Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite...
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This review essay assesses Cass Sunstein's new book "Radicals in Robes." After summarizing the book, this review essay considers the merits of...
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It is commonly argued that one virtue of common-law rule-making (or law-making) is that the common law judge is enriched in being able to make legal...
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This essay advances a formalist conception of constitutional stare decisis. I shall argue that instrumentalist accounts of precedent are inherently...
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This Essay deveopes an ideal of public legal reason - a normative theory of legal reasons that is appropriate for a society characterized by religious...
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What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would...
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Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society...
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Why does the race of judges matter? This Note argues that racial diversity in the judiciary improves legal decisions about political morality. Judges...
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The laws governing judicial recusal are failing to protect the reputation of the judiciary, as was illustrated by the recent controversy surrounding...
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David Blankfein-Tabachnick
The conventional view of Rawlsian political philosophy is that the private law lies outside the scope of the two principles of justice - it is not...
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Daniel M. Klerman
This paper assesses the impact of judicial independence on equity markets. North and Weingast (1989) argue that judicial independence and other...
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This essay considers the concept of libertarian paternalism recently advanced by Sunstein and Thaler and argues that, on close inspection, this...
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In discussions of statutory interpretation, people often suggest that textualists and intentionalists have fundamentally different goals...
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This paper considers how the scientific status of empirical legal scholarship might be enhanced. The leading proposal for making empirical legal...
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Since Watergate, legal scholars have been prominent participants in a larger debate about the President's constitutional relationship to prosecutions...
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In Evaluation and Legal Theory , Julie Dickson argues, against me and against Hart, that the beneficial moral consequences attaching to accepting one...
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Paul H. Robinson
The present sentencing debate focuses on which decisionmaker is best suited to make the sentencing decision. Competing positions in this debate...
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How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and...
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In Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig warns that the health of the...
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Although the modern Supreme Court claims historical support for refusing to let private parties who have suffered no concrete private injury ask...
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This article critically examines the use of single-observation case studies to develop causal explanations for significant legal events, detailing the...
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Larry Alexander
"Textualism" is a very general and abstract term that represents a variety of views about the interpretation of legal texts. One strand of textualism...
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Although the language of the First Amendment refers to freedom of speech, it turns out that most of the vast universe of speech remains untouched (and...
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Larry Alexander
Larry Kramer has written an awesome book, and we mean awesome in its original and now archaic sense. The People Themselves is a book with the capacity...
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The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented...
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Minn Chung
This essay addresses the fundamental questions of Internet governance: whether and how the architecture of the Internet should affect the shape and...
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"Virtue jurisprudence" is a normative and explanatory theory of law that utilizes the resources of virtue ethics to answer the central questions of...
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In the Michigan affirmative action cases, the Supreme Court not only reaffirmed the result of the 1978 decision in Board of Regents of the University...
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David Blankfein-Tabachnick
In the Myth of Ownership: Taxes and Justice (Oxford 2002), Liam Murphy and Thomas Nagel discuss the relationship between tax policy and contemporary...
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Chris William Sanchirico
In drawing on the theory of repeated games, norms scholars have devoted much attention to the so-called third-party enforcement problem: the seemingly...
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This paper is a discussion of the Supreme Court's decision in Eldred v. Ashcroft. In the paper, I argue that the ambiguity at issue in Eldred has...
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Larry Alexander
The nondelegation doctrine has roots that extend as far back as three centuries, or so most of us suppose. In The Second Treatise of Government, John...
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John Yoo
This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite...
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Support for land preservation is in large part rooted in the conviction that present generations have an obligation to benefit future generations by...
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This essay discusses Eric Posner's book Law and Social Norms, focusing on Posner's theory of norm adherence as a costly signal of an individual's...
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In PGA Tour, Inc. v. Casey Martin, the Supreme Court of the United States upheld the right of the professional golfer Casey Martin to use a golf cart...
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Recent finance scholarship finds that countries with legal systems based on the common law provide better investor protections and have more developed...
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John Yoo
The theory of the political safeguards of federalism has made a recent comeback, appearing in Supreme Court dissents by Justices Breyer and Souter and...
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Virginia J. Wise
Technological changes have made access to non-legal information such as newspaper reports and general interest books far less costly. As expected...
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Technological changes have made access to non-legal information such as newspaper reports and general interest books far less costly. As expected...
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This essay concerns the peculiar dilemmas of criminalization for women. I explain the ways in which women are policed, ranging from the monitoring of...
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Eric A. Posner
This paper analyzes the voting rules of Chapter 11 using models from noncooperative game theory. Prior work has relied mainly on a model of bargaining...
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Recent and otherwise unrelated Supreme Court opinions take a peculiar approach to defining constitutional norms. According to these opinions...
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Conventional wisdom holds that there is a connection between (a) the jurisprudential commitment to legal positivism expressed in Erie R.R. v. Tompkins...
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The purpose of this Note is to question whether racial matching by courts and child-placement agencies serves the best interests of Black children...
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The debate between originalists and nonoriginalists has begun to suffer a fate similar to these earlier debates in constitutional theory and practice...
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Resident Faculty
Criminal procedure, federal courts and constitutional law
- Clerked for Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit and Justice Anthony M. Kennedy of the U.S. Supreme Court
- His research garnered attention in 2018 as part of an amicus brief he wrote for the Supreme Court case Hughes v. United States
- Runs the blog Re's Judicata and is a member of PrawfsBlog
Evidence, torts, jurisprudence and legal history, constitutional law
- Clerked for Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit
- Former Climenko Fellow and lecturer, Harvard Law School
- Barzun's research fcuses on the interdependence of the philosophy of law and the history of law.
Affirmative action and equal protection, constitutional law and theory
- Awarded a National Endowment for the Humanities Fellowship for University Teachers in 1999
- Author of the book "When Is Discrimination Wrong?"
- Hellman's work primarily focuses on discrimination and equality. In addition, she writes about the constitutionality of campaign finance laws and the obligations of professional roles, especially in the context of clinical medical research. (Scholarship Profile | Faculty Q&A)
Employment discrimination, civil rights and admiralty, civil procedure and international civil litigation
- Clerked for U.S. Supreme Court Justices William O. Douglas and John Paul Stevens, and forJudge J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit
- Chaired the advisory committee on Fourth Circuit Rules
- Rutherglen's book, "Civil Rights in the Shadow of Slavery," discusses the dynamics of legislative and judicial enforcement over the entire history of the Civil Rights Act of 1866. (Story)
Constitutional law, evidence and legal reasoning, philosophy of law
- Frank Stanton Professor the First Amendment, Emeritus, Kennedy School of Government, Harvard University (also taught courses on evidence and freedom of speech at Harvard Law School)
- Fellow of the American Academy of Arts and Sciences and a former fellow of the John Simon Guggenheim Foundation
- Author of numerous books and articles, including "Thinking Like a Lawyer: A New Introduction to Legal Reasoning" and "The Force of Law" (forthcoming in 2015) (Faculty Q&A)
- Was founding co-editor of the journal Legal Theory
First Amendment, constitutional law and torts
- Rhodes Scholar at the University of Oxford, where she received her master's and doctorate in English literature
- Clerked for U.S. Supreme Court Justice David Souter and for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit
- Scholarly research has focused on free speech (Faculty Q&A), including the U.S. Supreme Court’s interpretations (C-SPAN Supreme Court Term Preview)
- Received the Law School’s Carl McFarland Prize for outstanding research (Story)
Law and religion, jurisprudence and political philosophy
- Rhodes Scholar at the University of Oxford, where he received his doctorate in politics
- Clerked for Judge Paul V. Niemeyer of the U.S. Court of Appeals for the Fourth Circuit
- Received the Law School’s Carl McFarland Prize for outstanding research (Story)
- Schwartzman's scholarship has explored the First Amendment's religion clauses, the free exercise clause and the establishment clause. He is the co-editor of "The Rise of Corporate Religious Liberty." (More)
Separation of church and state, property, local government and land use
- M.A. in legal theory, University College London
- Clerked for then-Chief Judge Dolores Sloviter of the U.S. Court of Appeals for the Third Circuit
- Authored articles on the establishment clause and local regulation of religion, the role of cities in a federal system, local recognition of same-sex marriage, takings law and economic development, and the history of the anti-chain store movement. (Faculty Q&A)
Legal theory, constitutional theory, procedure, philosophy of law
- His series of articles on constitutional originalism have shaped contemporary thinking about the debate between originalism and constitutional theory
- Editor of Legal Theory Blog, an influential weblog that focuses on developments in contemporary normative and positive legal theory
- Also works on problems of law and technology, including Internet governance, copyright policy and patent law
Domestic relations and family law
- Ph.D. in philosophy, University of Illinois at Urbana-Champaign
- Recent scholarship has revolved around defining a theory behind marriage, including why the state is involved in licensing marriages at all
- Teaches Family Law and Torts
Criminal procedure and criminal defense law
- Clerked for Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit
- Practiced criminal defense as an associate for Morvillo, Abramowitz, Grand, Iason & Silberberg and as staff attorney for the Bronx Defenders
- Scholarship often focuses on fairness for the accused in the legal system (Faculty Q&A)
Contracts, sales/commercial paper, legal philosophy, bankruptcy and secured transactions
- Ph.D. and M.A. in philosophy, University of Chicago
- Has received several academic awards, including a Whiting National Fellowship in the Humanities
- Co-author of two popular casebooks, "Secured Transactions in Personal Property" and "Payments and Credits"
Family law, trusts and estates, feminist jurisprudence, reproductive technology, and aging and the law
- Her books include “Red Families v. Blue Families,” “Homeward Bound” and “Unequal Family Lives,” as well as casebooks in family law and trusts and estates
- Serves as the reporter for the Uniform Law Commission Drafting Committee on Economic Rights of Unmarried Cohabitants, and a member of the American College of Trust and Estate Counsel and the American Law Institute
- Her work has been featured in the New York Times, Washington Post, Wall Street Journal and New Yorker, and she has appeared on numerous media outlets, including NPR and MSNBC
- From 2002-04, Cahn was on leave in Kinshasa, Democratic Republic of the Congo, and researched gender-based violence
Criminal law, feminist jurisprudence and women's issues
- Clerked for U.S. Supreme Court Justice Lewis F. Powell, Jr. and Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit
- Co-authored the casebook "Criminal Law: Cases and Materials"
- In 2012 Coughlin and a group of law students using the moniker "The Molly Pitcher Project" helped file a lawsuit on behalf of military women seeking to overturn the combat exclusion. (Story)
Federal courts, constitutional law, civil procedure, legal theory
- Clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg, Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit, and Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York
- Former lecturer and Climenko Fellow at Harvard Law School
- Practiced appellate litigation
- Scholarship often focuses on legal institutions’ treatment of intangible harms such as stigma and disrespect
Other Faculty
Global legal history, especially England and the British Empire
- Writes about the legal history of Britain and its empire from the 16th century to the 19th. His most recent book, "Habeas Corpus: From England to Empire," was published by Harvard University Press in 2010 and won the 2011 Inner Temple Book Prize
- Frequently consults in the writing of briefs submitted to the U.S. Supreme Court on issues connected to English legal history
- Halliday's research has been supported by fellowships from the American Council of Learned Societies, the National Endowment for the Humanities, the Mellon Foundation and the American Philosophical Society
The program is committed to offering courses each year that reflect an interdisciplinary law and humanities perspective. Students can also find relevant courses in the Graduate School of Arts and Sciences. See the school's dual-degree programs.
The following is a list of courses offered during the current and two previous academic years. Numbers in parentheses indicate which academic year(s) the courses were offered, i.e., 2020-21 is coded (21), 2021-22 is coded (22) and 2022-23 is coded (23). (SC) stands for short course and (YR) stands for yearlong.
Courses and Seminars
Constitutionalism: History and Jurisprudence (21)
Critical Race Theory (23)
Dignity Law Seminar (23)
Discrimination Theory (21,22)
Feminist Jurisprudence (21,22,23)
Jurisprudence (21,22)
Law and Theories of Justice (23)
Law of Corruption (21,23)
Legal Theory in Europe and the U.S.: A Very Brief Introduction (SC) (21,22,23)
Legal Theory Workshop Seminar (22)
Liberalism and Its Critics (21,22,23)
Philosophical Legal Ethics (SC) (23)
Reproductive Ethics and Law (SC) (21,22,23)
Rule of Law and Threats to It (21,23)
Rules (21,22)
Social Identity, Critical Theory and the Law (SC) (22,23)
A professor of law, a Harvard Ph.D. candidate and a law firm partner are just three of the successful University of Virginia School of Law alumni who gained a richer legal education from the J.D.-M.A. Program in History . "The J.D.-M.A. program was where I first learned what it meant to be a legal
Philosophy professor and author Cornel West of Union Theological Seminary joins a conversation with Mark C. Jefferson, assistant dean for diversity, equity and belonging, for the 2022 Meador Lecture on Law and Religion. Dean Risa Goluboff introduced the event.
Recent Events
A Theory of Justice: 50 Years Later
The conference marked the 50th anniversary of John Rawls’ “A Theory of Justice,” which is widely considered the most influential work of political philosophy in the 20th century. Bringing together scholars in politics, philosophy and law, the program focused on themes arising from Rawls’ work, including how justice is related to democracy, what distinguishes justice and legitimacy, how justice bears on questions of education and employment, and its implications for matters of race and religion.
The conference organizers were Blain Neufeld (Wisconsin, Milwaukee), Lori Watson (Washington University), and Micah Schwartzman (Virginia). More