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On Hart's Category Mistake, Michael S. Green 2019 William & Mary Law School

On Hart's Category Mistake, Michael S. Green

Michael S. Green

This essay concerns Scott Shapiro’s criticism that H.L.A. Hart’s theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro’s criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro’s planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro’s ...


Eternal Recurrence In A Neo-Kantian Context, Michael S. Green 2019 William & Mary Law School

Eternal Recurrence In A Neo-Kantian Context, Michael S. Green

Michael S. Green

In this essay, I argue that someone who adopted a falsificationism of the sort that I have attributed to Nietzsche would be attracted to the doctrine of eternal recurrence. For Nietzsche, to think the becoming revealed through the senses means falsifying it through being. But the eternal recurrence offers the possibility of thinking becoming without falsification. I then argue that someone who held Nietzsche’s falsificationism would see in human agency a conflict between being and becoming similar to that in empirical judgment. In the light of this conflict only the eternal recurrence would offer the possibility of truly affirming ...


The Role Of Eyewitness Confidence And Prosecution/Defense Presentation In How Facial Composites Shape Juror Decision-Making, Rebecca E. Singh 2019 CUNY John Jay College

The Role Of Eyewitness Confidence And Prosecution/Defense Presentation In How Facial Composites Shape Juror Decision-Making, Rebecca E. Singh

Student Theses

Eyewitness testimony has been found to be an unreliable form of evidence (Loftus, Miller & Burns, 1978; Oswald & Coleman, 2007; Wells & Hasel, 2007; Loftus & Greenspan, 2017; Jaross, 2018; Wade, Nash, & Lindsay, 2018; Wixted, Mickes, & Fisher, 2018). Yet, this evidence is still used in the courts today, and, in fact, is perceived by jurors as important and compelling in comparison to other case factors (e.g., character evidence, physical evidence; Topp-Manriquez, McQuiston, & Malpass, 2014; Kabzińska, 2015). Additionally, eyewitnesses are sometimes requested to help create a facial composite of the suspect and, critically, these composites are then used as evidence during the trial. In addition to the confidence of the eyewitness and the presentation of the evidence (i.e., defense or prosecution), the present research examines how facial composites influence the decision-making process on the part of jurors. Overall, the present results suggest that there is a significant difference in ...


Pagans, Christians, And Student Protesters, Stanley Fish 2019 Selected Works

Pagans, Christians, And Student Protesters, Stanley Fish

Stanley Fish

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


Does The Decriminalization Of Prostitution Reduce Rape And Sexually Transmitted Disease? A Review Of Cunningham And Shah Findings, Lily Lachapelle, Clare Schneider, Melanie Shapiro, Donna M. Hughes 2019 University of Rhode Island

Does The Decriminalization Of Prostitution Reduce Rape And Sexually Transmitted Disease? A Review Of Cunningham And Shah Findings, Lily Lachapelle, Clare Schneider, Melanie Shapiro, Donna M. Hughes

Dignity: A Journal on Sexual Exploitation and Violence

In 2013, research findings by Cunningham and Shah claimed that rape and sexually transmitted diseases were reduced by decriminalized prostitution in Rhode Island. The original unpublished claims have received wide media coverage which have gone unexamined. This review finds errors in their analyses. One error is the date when prostitution was decriminalized in Rhode Island. Cunningham and Shah claim that prostitution was decriminalized in 2003. Our analysis finds the date of decriminalization of prostitution was 1980. The change in the start date of decriminalization significantly alters the analysis and the findings. Another error results from Cunningham and Shah using an ...


Mens Rea In Comparative Perspective, Luis E. Chiesa 2019 SUNY Buffalo Law School

Mens Rea In Comparative Perspective, Luis E. Chiesa

Luis Chiesa

This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. As ...


What Fema Should Do After Puerto Rico: Toward Critical Administrative Constitutionalism, Yxta Maya Murray 2019 Loyola Law School, Los Angeles

What Fema Should Do After Puerto Rico: Toward Critical Administrative Constitutionalism, Yxta Maya Murray

Arkansas Law Review

The 200th anniversary of the 1819 Supreme Court decision McCulloch v. Maryland offers scholars a special opportunity to study the shortcomings of the federal The Robert T. Stafford Disaster Relief and Emergency Assistance Act, as they were revealed by FEMA’s failures in Puerto Rico during and after Hurricane Maria. Under Article I, Section 8 of the Constitution, as it has been interpreted by McCulloch, a law passed by Congress must be necessary and proper for executing its powers. In light of the expansive capacities allotted for disaster relief under the Stafford Act, and the catastrophic failure of FEMA to ...


Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz 2019 University of Wisconsin, Madison

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at ...


Overruling Mcculloch?, Mark A. Graber 2019 University of Marlyand, Baltimore

Overruling Mcculloch?, Mark A. Graber

Arkansas Law Review

Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism ...


M'Culloch In Context, Mark R. Killenbeck 2019 University of Arkansas, Fayetteville

M'Culloch In Context, Mark R. Killenbeck

Arkansas Law Review

M’Culloch v. Maryland is rightly regarded as a landmark opinion, one that affirmed the ability of Congress to exercise implied powers, articulated a rule of deference to Congressional judgments about whether given legislative actions were in fact “necessary,” and limited the ability of the states to impair or restrict the operations of the federal government. Most scholarly discussions of the case and its legacy emphasize these aspects of the decision. Less common are attempts to place M’Culloch within the ebb and flow of the Marshall Court and the political and social realities of the time. So, for example ...


Mcculloch At 200, David S. Schwartz 2019 University of Wisconsin, Madison

Mcculloch At 200, David S. Schwartz

Arkansas Law Review

March 6, 2019 marked the 200th anniversary of the Supreme Court’s issuance of its decision in McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the United States, the successor to Alexander Hamilton’s national bank. McCulloch v. Maryland involved a constitutional challenge by the Second Bank of the United States to a Maryland tax on the banknotes issued by the Bank’s Baltimore branch. The tax was probably designed to raise the Second Bank’s cost of issuing loans and thereby disadvantage it relative to Maryland’s own state-chartered banks. Marshall’s opinion famously rejected the ...


Against The Received Wisdom: Why Should The Criminal Justice System Give Kids A Break?, Stephen J. Morse 2019 University of Pennsylvania Law School

Against The Received Wisdom: Why Should The Criminal Justice System Give Kids A Break?, Stephen J. Morse

Faculty Scholarship at Penn Law

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about ...


Performing Spatial Justice, Ramona A. Radu 2019 The University of Western Ontario

Performing Spatial Justice, Ramona A. Radu

Electronic Thesis and Dissertation Repository

In Spatial Justice: Body, Lawscape, Atmosphere, Andreas Philippopoulos-Mihalopoulos introduces a theory of spatial justice that takes into consideration the agential capabilities of nonhuman legal actors. However, in an effort to decenter the human legal subject, Philippopoulos-Mihalopoulos argues that the co-constitutivity of law and space (the lawscape), as the site where (human and nonhuman) legal bodies take shape, cannot be mediated through the political. In response to this claim, I argue that spatial justice is an inherently political project, and I identify the practice of spatial justice (or performing spatial justice) as a means of understanding how to engage the political ...


Christians And Pagans In The Sacred Nation, Christopher J. Eberle 2019 University of San Diego

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.


Pagans, Christians, And Student Protesters, Stanley Fish 2019 University of San Diego

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.


This Isn’T About You: A Comment On Smith’S Pagans And Christians In The City, Andrew Koppelman 2019 University of San Diego

This Isn’T About You: A Comment On Smith’S Pagans And Christians In The City, Andrew Koppelman

San Diego Law Review

Andrew Koppelman’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.


Jews, Not Pagans, Richard Schragger, Micah Schwartzman 2019 University of San Diego

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.


From The Voices Of Domestic Sex Trafficking Survivors: Experiences Of Complex Trauma & Posttraumatic Growth, Heather R. Evans DSW 2019 University of Pennsylvania

From The Voices Of Domestic Sex Trafficking Survivors: Experiences Of Complex Trauma & Posttraumatic Growth, Heather R. Evans Dsw

Doctorate in Social Work (DSW) Dissertations

Human sex trafficking is an ongoing global rights violation formally recognized since 2000 through the Trafficking Victims Protection Act (Department of State Trafficking in Persons Report, 2016). Using ecological and trauma-informed lenses, this qualitative, retrospective study used participant-centered methods to explore identity, sexuality, relationships, and factors that facilitate/ hindered community reintegration for 15 adult female survivors. Interview transcripts, Photovoice captioned images, and focus groups were analyzed using multi-level conceptual and thematic coding. Participants identified with all aspects of complex trauma, including: dissociation, self-perception/identity, relations with others and systems of meaning. Key themes included losing and regaining power, shame, and ...


The Rust On Gideon’S Trumpet: A Theoretical Diagnostic Of Public Defense In America, Luke Hogg 2019 William & Mary

The Rust On Gideon’S Trumpet: A Theoretical Diagnostic Of Public Defense In America, Luke Hogg

Undergraduate Honors Theses

Although there exists a deep literature base around public defense, the vast majority of this literature is purely quantitative and lacks any thorough examination of the impact inequalities in criminal defense can have on our basic societal structure. Through the use of a Rawlsian theoretical framework, this article demonstrates that the impact of economic inequality on criminal justice is problematic, not only for financial and practical reasons as have been offered by previous scholars, but also for the imposition of the rule of law and justice as regularity. In this way, I demonstrate that these inequalities create very tangible impacts ...


Oral Argument Tactics On The Supreme Court Bench: A Comparative Analysis Of Verbal Tools Used By Justices Sotomayor, Kagan, And Gorsuch, Corinne Cichowicz 2019 Ursinus College

Oral Argument Tactics On The Supreme Court Bench: A Comparative Analysis Of Verbal Tools Used By Justices Sotomayor, Kagan, And Gorsuch, Corinne Cichowicz

Politics Honors Papers

Oral argument scholars like Adam Feldman have categorized the Supreme Court justices’ behavior during oral argument using the approach-based method, labeling each as one-sided, even-handed, or restrained. This approach is too narrowly constructed. Scholars sometimes categorize justices in terms of the tools they use, which include questions, hypotheticals, declarations, interruptions, tone of voice, and silence (Feldman 2018a). Neither of these methods alone produce a nuanced analysis of each justice’s actions during an individual case or across a Term. As the Court’s composition and dynamics are continuously changing, scholarship on oral argument needs to adapt to become more effective ...


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