Open Access. Powered by Scholars. Published by Universities.®

Philosophy Commons

Open Access. Powered by Scholars. Published by Universities.®

Law

Institution
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 1163

Full-Text Articles in Philosophy

Legal Personhood For Artificial Intelligence, Tyler Jaynes Jun 2019

Legal Personhood For Artificial Intelligence, Tyler Jaynes

Tyler Jaynes

The concept of artificial intelligence is not new nor is the notion that it should be granted legal protections given its influence on human activity. What is new, on a relative scale, is the notion that artificial intelligence can possess citizenship—a concept reserved only for humans, as it presupposes the idea of possessing civil duties and protections. Where there are several decades’ worth of writing on the concept of the legal status of computational artificial artefacts in the USA and elsewhere, it is surprising that law makers internationally have come to a standstill to protect our silicon brainchildren. In ...


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jun 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Michael Evan Gold

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


Jews, Not Pagans, Richard Schragger, Micah Schwartzman May 2019

Jews, Not Pagans, Richard Schragger, Micah Schwartzman

San Diego Law Review

Richard Schragger & Micah Schwartzman’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.


Pagans, Christians, And Student Protesters, Stanley Fish May 2019

Pagans, Christians, And Student Protesters, Stanley Fish

San Diego Law Review

Stanley Fish’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.


Jews And The Culture Wars: Consensus And Dissensus In Jewish Religious Liberty Advocacy, Michael A. Helfand May 2019

Jews And The Culture Wars: Consensus And Dissensus In Jewish Religious Liberty Advocacy, Michael A. Helfand

San Diego Law Review

In the recent culture wars, traditionalists and progressives have clashed over dueling conceptions of family, sexuality and religion—manifested in debates over abortion, contraception, and same-sex marriage. Caught in this conflict has been a political and cultural reassessment of religious liberty; a doctrine originally seen as necessary to protect faith commitments from majoritarian persecution, the public salience of religious liberty has waned as it has clashed with the rights of women and LGBT people. And these evolving commitments to dueling rights have triggered religious, political, and ideological realignments, generating new alliances across political and faith communities.

In this new environment ...


Christians And Pagans In The Sacred Nation, Christopher J. Eberle May 2019

Christians And Pagans In The Sacred Nation, Christopher J. Eberle

San Diego Law Review

Christopher J. Eberle’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.


A Rhetorical Analysis Of Opening Statements In Trial: Reconsidering The Classical Canon Of Invention, Andrew Chandler May 2019

A Rhetorical Analysis Of Opening Statements In Trial: Reconsidering The Classical Canon Of Invention, Andrew Chandler

Undergraduate Theses

This analysis of 21 opening statements probes at current persuasive practices employed by trial attorneys through the lens of mainstream legal advice and an expanded definition of rhetorical invention – one which includes both discovery and creation. An evaluation of such practice reveals the utility, and furthermore the duty of the advocate, to draw upon an expanded realm of available arguments.


Autonomy, Gideon Parchomovsky, Alex Stein May 2019

Autonomy, Gideon Parchomovsky, Alex Stein

Faculty Scholarship at Penn Law

Personal autonomy is a constitutive element of all rights. It confers upon a rightholder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a rightholder of a choice that was rightfully hers — the choice as to how to go about her life.

Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a rightholder without securing her permission or ...


Wisdom (Hikmah) As Perceived By Iranian Muslim Scholars: Reflections On Ibn Sina, Ghazali, And Suhrawardi, Leyla H. Tajer, Amir H. Zekrgoo Apr 2019

Wisdom (Hikmah) As Perceived By Iranian Muslim Scholars: Reflections On Ibn Sina, Ghazali, And Suhrawardi, Leyla H. Tajer, Amir H. Zekrgoo

Journal of Islamic and Middle Eastern Multidisciplinary Studies

The evolution of the concept of spiritual/religious wisdom (ḥikamt) by the Iranian Muslim philosophers from the 10th to 12th century, may be studied under three main trends namely Mashā’i (Peripatetic), Kalām (theology), and Ishrāq (Illumination). Despite the correlation among these trends each of them grew independently. Among the three, the Hikmat-i Ishrāq (Illumination Wisdom) which is also known as Ḥikamt-i Dhawqi (Intuitive Wisdom) of Shahab al-Din Suhrawardi (1153-1191) found a special place as it tended to bring together the philosophical and theological aspects of wisdom. This survey would address the development of ikmat (wisdom) among ...


Slogans Appropriate To The Legacy Of Martin Luther King Jr., Theodore Walker Jan 2019

Slogans Appropriate To The Legacy Of Martin Luther King Jr., Theodore Walker

Perkins Faculty Research and Special Events

For printing signs, banners, posters, tee shirts, and bumper stickers (and for preaching sermons) that are appropriate to the legacy of Rev. Dr. Martin Luther King Jr., please consider the following slogans: ABOLISH WAR, ABOLISH POVERTY, AMEND THE CONSTITUTION, SUPPORT AN ECONOMIC BILL OF RIGHTS, JOBS FOR ALL, GUARANTEED INCOME FOR ALL, SUPPORT UNIVERSAL BASIC INCOME, and GOOD NEWS TO THE POOR - Luke 4:14-19.


Judging Well, Francis J. Mootz Iii Jan 2019

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...


Who Is Baby Girl? A Philosophical Discussion Of The Legal Obligation To Define Authenticity, Madison Hayes Jan 2019

Who Is Baby Girl? A Philosophical Discussion Of The Legal Obligation To Define Authenticity, Madison Hayes

University Honors Program Theses

In the later twentieth century, American law attempted to address legacies of unjust treatment of Native Americans though legislation like the Indian Child Welfare Act, which requires considering Native American identity in child custody decisions. This created some complex legal questions about exactly what constituted Native identity. The Supreme Court case, Adoptive Couple v. Baby Girl, exposed a number of problems that arose from determining authentic tribal identity. To offer a more precise analysis of the problem of identity in American law, I will engage in philosophical investigations into the nature of authenticity, bringing in the work of the German ...


Beyond “Good Behaviour”: A Plan To Restructure The Supreme Court Of The United States, Ross Mcnearney Jan 2019

Beyond “Good Behaviour”: A Plan To Restructure The Supreme Court Of The United States, Ross Mcnearney

Undergraduate Honors Theses

The Supreme Court of the United States truly decides what the law is. It is the final say in any legal battle, and as a result, it is in many ways more powerful than either the legislative or executive branches of the United States government. It performs an important check on both of those branches and serves a vital function in the democracy of the United States. But its current structure leaves something to be desired. There are too few justices, and life tenure is a mistake. Plus those justices represent a very geographically narrow selection of the country’s ...


Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank Jan 2019

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

Faculty Scholarship at Penn Law

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as ...


Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley Jan 2019

Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley

Dickinson Law Review

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.

Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and ...


Smart Sheep Need More Protection, Michael L. Woodruff Jan 2019

Smart Sheep Need More Protection, Michael L. Woodruff

Animal Sentience

The target article unequivocally establishes that sheep are far more intelligent and cognitively sophisticated than is generally acknowledged. For this reason, the authors advocate for significantly more stringent regulation of agricultural and research practices when sheep are used. I briefly review the existing US regulations governing the use of sheep in research and discuss the extent to which they are applied to sheep. I then discuss weaknesses in the current regulations, concluding that they should be changed to mandate housing all research animals in environments that accommodate the psychosocial needs of each species.


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jan 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Articles and Chapters

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


The Impact Of The Concepts Of 'Common Good', 'Justice' And 'Diversity' In The Natural Law Of Our Time, Gines Marco Nov 2018

The Impact Of The Concepts Of 'Common Good', 'Justice' And 'Diversity' In The Natural Law Of Our Time, Gines Marco

Journal of Vincentian Social Action

In this article we have projected three central objectives: first, to delimit the scope and limits of the recognition granted by the Aristotelian-Thomist tradition to the centrality of the common political good in life and in the fullness of the human being; Secondly, to specify the nature of the present difficulties that has the same possibility of the common reaches, by virtue of the valuation of the diversity projected by the liberal tradition inherited from Modernity; Thirdly, to analyze the impact that the dichotomy common good/diversity has had and continues to have on the way in which intra-organizational conflicts ...


A Study Of Six Nations Public Library: Rights And Access To Information, Alison Frayne Nov 2018

A Study Of Six Nations Public Library: Rights And Access To Information, Alison Frayne

Electronic Thesis and Dissertation Repository

Contemporary Indigenous public libraries play a critical role in providing access to information in Indigenous communities. My research focuses on the relationship between rights and access to information for individuals and communities within the context of Indigenous public libraries. I use a qualitative case study methodology of the Six Nations Public Library (SNPL) in Ohsweken, Ontario, Canada. Interviews were conducted with SNPL patrons and library management and with off-reserve participants from government and library associations.

I analyse four themes, library governance, rights, library value and access to information, which are outcomes of the SNPL case study findings. This analysis reveals ...


The 200,000 Cards Of Dimitri Yurasov: Further Reflections On Scholarship And Truth, Daniel A. Farber, Suzanna Sherry Oct 2018

The 200,000 Cards Of Dimitri Yurasov: Further Reflections On Scholarship And Truth, Daniel A. Farber, Suzanna Sherry

Suzanna Sherry

No abstract provided.


Ribeiro On Mill's Harm Principle, Christopher T. Wonnell Oct 2018

Ribeiro On Mill's Harm Principle, Christopher T. Wonnell

San Diego Law Review

Ribeiro’s article is broadly sympathetic to Mill’s harm principle. However, it argues that there is no one conclusive argument in its favor. Rather, there are a plurality of different arguments that all lend strength to Mill’s general conclusion, at least in particular categories of cases. The Article begins by noting that the harm principle is not limited to criminalization. In various ways short of criminalization, the law seems to prefer some ways of life over others on what seem to be paternalistic or moralistic grounds rather than any kind of obvious harm the actors are doing to ...


A Life Absolutely Bare? A Reflection On Resistance By Irregular Refugees Against Fingerprinting As State Biopolitical Control In The European Union, Ziang Zhou Oct 2018

A Life Absolutely Bare? A Reflection On Resistance By Irregular Refugees Against Fingerprinting As State Biopolitical Control In The European Union, Ziang Zhou

Claremont-UC Undergraduate Research Conference on the European Union

In a legally transitory category, irregular refugees- experience a double precariousness. They risk their lives to travel across treacherous seas to Europe for a better life. However, upon the long-awaited embarkation on the European land, they are exposed once again to the precariousness of the asylum application. They are “powerless”, “with no rights” and “to be sacrificed” as Giorgio Agamben and Hannah Arendt suggested in their respective understanding of a “bare life”, la nuda vita. In light of the administrative difficulties in managing asylum application, the European Union introduced the “Dublin Agreement”, which stipulates mandatory biometric data collection for irregular ...


Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang Oct 2018

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in ...


Feeling As Knowing: Trans Phenomenology And Epistemic Justice, B. Lee Aultman Sep 2018

Feeling As Knowing: Trans Phenomenology And Epistemic Justice, B. Lee Aultman

All Dissertations, Theses, and Capstone Projects

This dissertation is a critical intervention into the literatures on epistemic and phenomenological claims about trans experiences, and embodied knowledge more generally. It also addresses the conception of ordinary affects, or feelings of self-adjustment in everyday life, and their political implications for trans people. Traditional literatures on the political tend to avoid questions of embodiment and the experiences of everyday life in favor of institutional interpretations of courts, elections, and protest movements. This has become particularly true of scholarship on trans politics and theories of ordinary life. These literatures often reduce political movements to their presumed universal intentions for constitutional ...


Self-Actualization And The Need To Create As A Limit On Copyright, Christopher S. Yoo Aug 2018

Self-Actualization And The Need To Create As A Limit On Copyright, Christopher S. Yoo

Faculty Scholarship at Penn Law

Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts.

This Chapter argues that the conventional wisdom is too limited. It offers too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the results of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of ...


The Politics Of Wounds, Jonathan Nash Aug 2018

The Politics Of Wounds, Jonathan Nash

Electronic Thesis and Dissertation Repository

What configuration of strategies and discourses enable the white male and settler body politic to render itself as simultaneously wounded and invulnerable? I contextualize this question by reading the discursive continuities between Euro-America’s War on Terror post-9/11 and Algeria’s War for Independence. By interrogating political-philosophical responses to September 11, 2001 beside American rhetoric of a wounded nation, I argue that white nationalism, as a mode of settler colonialism, appropriates the discourses of political wounding to imagine and legitimize a narrative of white hurt and white victimhood; in effect, reproducing and hardening the borders of the nation-state. Additionally ...


Anthony Kennedy: A Most Principled Justice, Mitchell N. Berman, David Peters Jul 2018

Anthony Kennedy: A Most Principled Justice, Mitchell N. Berman, David Peters

Faculty Scholarship at Penn Law

After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in ...


Flag-Waving: Visual Arguments, Verbal Reconstruction, And Speaker Intentions, Brian Larson Jul 2018

Flag-Waving: Visual Arguments, Verbal Reconstruction, And Speaker Intentions, Brian Larson

Brian Larson

This study extends previous work in visual argumentation by studying speakers’ own verbal reconstructions of their visual communicative acts. The researcher interviewed 70 persons wearing or carrying American flags at the Republican and Democratic National Conventions in Cleveland and Philadelphia in July 2016, to determine whether “speakers” make arguments by wearing or carrying it. For more than 20 years, theorists have debated whether it is meaningful to speak of "visual arguments," whether they can be purely visual, non-verbal communication, and whether and how they can be reconstructed in the form of the conclusion-support structure of an argument. This analysis provides ...


Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe Jun 2018

Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe

Faculty Scholarship at Penn Law

In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms ...


The Architecture Of Law: Building Law In The Classical Tradition, Brian M. Mccall May 2018

The Architecture Of Law: Building Law In The Classical Tradition, Brian M. Mccall

Brian M McCall

The Architecture of Law explores the metaphor of law as an architectural building project, with eternal law as the foundation, natural law as the frame, divine law as the guidance provided by the architect, and human law as the provider of the defining details and ornamentation. Classical jurisprudence is presented as a synthesis of the work of the greatest minds of antiquity and the medieval period, including Cicero, Artistotle, Gratian, Augustine, and Aquinas; the significant texts of each receive detailed exposition in these pages.
Along with McCall’s development of the architectural image, he raises a question that becomes a ...