Critical Legal Studies (CLS) writers argue that judicial decision making is not politically neutral; rather, it is only a stylized version of political discourse. More pointedly, these writers argue that the belief in legal neutrality legitimates an unrepresentative political process, thereby benefiting the powerful to the detriment of the weaker. Accordingly, CLS writers consider the belief in legal neutrality to be ideological. Also, CLS writers consider judicial decision making itself (as opposed to beliefs about legal decision making) to be ideological in the sense that the outcomes of legal decision making are informed and influenced by conservative ideology.I use two senses of the term “ideology” in this essay. The ideological belief in legal neutrality is ideological in a pejorative sense. That is, it is a false belief that works to the detriment of its holder. The conservative ideology that informs legal decision making is ideological in a descriptive but not necessarily a pejorative sense. For a discussion of these and other distinctions between the possible meanings of the term “ideology,” see Raymond Geuss, The Idea Of A Critical Theory (1981), esp. ch. 1. Thus, a central project of the CLS movement is to unmask the ideological nature of law.For discussion of the premises that the liberal belief about law is ideological and that the function of CLS writers is to unmask this ideological nature, see David Kairys,Introduction to The Politics Of Law: A Progressive Critique 5 (David Kairys ed., 1990); Alan Hutchinson, Introduction to Critical Legal Studies 3 (Alan Hutchinson ed., 2d ed. 1989); Richard M. Fischl, Some Realism About Critical Legal Studies, 41 U. Miami L. Rev. 505, 524–25 (1987); and Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buff. L. Rev. 205 (1979).

Few criminal defenses have generated as much controversy among philosophers and jurists as has necessity, and few philosophers disagree so thoroughly in political and legal philosophy as do Bentham and Kant. But, in a surprising moment of consensus, Bentham and Kant both argue that an imperiled wrongdoer facing death merits an acquittal because the threat of even capital punishment is insufficient to compel her to obey the law.Jeremy Bentham, THE PRINCIPLES OF MORALS AND LEGISLATION 170 (1948). I will hereafter insert references to this work in the text, following the abbreviation “PML.” Immanuel Kant, METAPHYSICS OF MORALS 28 [6:235] (Gregor ed., 1996). I will hereafter insert references to this work in the text, following the abbreviation “MdS,” to the Prussian Academy pagination. Kant makes the same claim in On the common saying: That may be correct in theory, but it is of no use in practice, PRACTICAL PHILOSOPHY 299n [8:300n] (Gregor ed., 1996). I will work only with the former, as it is later and more developed. At a glance, we might take each therefore to hold that she merits an acquittal on the ground that those who could not conform their actions to the requirements of the law cannot fairly be held to answer for them.George Fletcher glosses Kant this way. Fletcher, RETHINKING CRIMINAL LAW 819 (1978). Michael D. Bayles represents this as the standard reading of both. Bayles, Reconceptualizing Necessity and Duress, 33 WAYNE L. REV. 1191, 1194–1195 (1987). But this misrepresents both Bentham’s and Kant’s views. For each, the nondeterrability of the imperiled wrongdoer does not defeat her responsibility for her actions but rather defeats a condition under which the state enjoys the right to punish wrongdoers. In short, for both Bentham and Kant, the imperiled wrongdoer merits an acquittal because the state lacks standing to punish her. I will call this the ultra vires thesis.

This paper questions the fairness of our current tort-law regime and the philosophical underpinnings advanced in its defense, a theory known as corrective justice. Fairness requires that the moral equality and responsibility of persons be respected in social interactions and institutions. The concept of luck has been used by many egalitarians as a way of giving content to fairness by differentiating between those benefits and burdens that result from informed choice and those that result from fate or fortune. We argue that the theory of corrective justice, along with its institutional embodiment of tort law, is at odds with an egalitarian commitment to fairness because it allows luck an unjustifiable role in determining dissimilar liability for similar wrongs and dissimilar compensation for similar losses to bodily integrity. Many egalitarian political theorists have also recognized, if not defended, the notion of distinct forms of justice, namely corrective, retributive, and distributive. Although theorists of these different forms of justice have been concerned with negating unfair luck inside the operations of each form of justice, there has been little attention to the way in which luck operates to sort cases into each form of justice. We claim that there is a significant way in which luck operates to subject different people to principles of corrective, retributive, and distributive justice—thereby assessing dissimilar liability for similar wrongs and disparate compensation for similar losses—which flies in the face of the egalitarian value of fairness. After surveying the arguments put forward by theorists defending a categorical distinction between corrective justice and retributive and distributive principles, we argue that although analytical distinctions can be made between different forms of justice (although, we also suggest that the distinctions are not as sharp as some commentators suggest), there is no good reason to defend an acoustic separation between these forms of justice when doing so creates unfair outcomes.

Conversions occur in legal theory about as often as they do in religion, which is to say rarely—so rarely that they fascinate as much for the fact that they happen at all as for the reasons they happen. It should not surprise, then, that the Postscript to H.L.A. Hart's famous work on jurisprudence reveals “the outstanding English philosopher of law of the twentieth century” reaffirming, rather than revising in any significant way, the two central tenets that distinguish his theory from that of both classical natural law theorists and modern “new naturalists” like Ronald Dworkin: (1) There is no necessary connection between law and morality; and (2) judges inevitably confront cases where the decision is “not dictated by the law” and the judge “must act as a conscientious legislator would by deciding according to his own beliefs and values” (p. 273).

In the movie Regarding Henry, the main character, Henry Turner, is a lawyer who suffers brain damage as a result of being shot during a robbery. Before being wounded, the Old Henry Turner had been a successful lawyer, admired as a fierce competitor and well-known for his killer instinct. As a result of the injury to his brain, the New Henry Turner loses the personality traits that had made the Old Henry such a formidable adversary.

In the course of discussing his conception of community, Ronald Dworkin refers favorably, though in passing and rather elliptically, to Jean-Jacques Rousseau and his concept of the general will. Dworkin suggests important similarities exist between Rousseau's “general will” and Dworkin's own understanding of community and his related theory of “law as integrity.”

This article explores four topics raised by Eyal Zamir and Barak Medina's treatment of constrained deontology. First, it examines whether mathematical threshold functions are the proper way to think about limits on deontology, given the discontinuities of our moral judgments and the desired phenomenology of rule-following. Second, it asks whether constrained deontology is appropriate for public as well as private decision-making, taking issue with the book's conclusion that deontological options are inapplicable to public decision-making, whereas deontological constraints are applicable. Third, it examines the issue of the relationship between deontology and efficiency, asking whether deontological constraints should yield in situations where everyone would expect to benefit from their suspension, either ex ante or ex post. Finally, the article concludes that constrained deontology is susceptible to political abuse because of the many degrees of freedom involved in identifying constrained actions and the point at which those constraints yield to consequentialist benefits.

I. INTRODUCTION

Many judges and legal scholars are extremely hostile to class actions in which plaintiffs, despite the fact that they would be unlikely to prevail if the case were litigated to a conclusion, nevertheless obtain a large settlement of their claims. For example, Judge Richard Posner, in an opinion denying plaintiffs the opportunity to maintain a class action, cited with approval Judge Henry Friendly’s characterization of “settlements induced by a small probability of an immense judgment in a class action” as “blackmail settlements.”In re Rhone-Poulenc, 51 F.3d 1293, 1298 (7th Cir. 1995) Professor George Priest, himself intensely critical of the rules governing class actions because they permit plaintiffs in class actions to secure substantial settlements even though they have little chance of prevailing, believes that there are judicial decisions refusing to certify class actions, purportedly because the requirements of the controlling rule have not been met, which are really explained by the court’s desire to prevent plaintiffs with a small chance of winning from securing large settlements. George Priest; Procedural Versus Substantive Controls of Mass Torts Class Actions, 26 J. LEGAL STUD. 52 (1997)

The “folk” theory of democracy that typically justifies the administrative state cannot help but lead to a discourse of constraint. If agency action is only legitimate when it mechanically applies the will of the voters as transposed by Congress through statutes, then the norms guiding that action will inevitably restrain agency discretion. As a result, attempts to establish the democratic credentials of the administrative state ironically obstruct the application of collective power. But this “folk” theory of democracy is bad theory. It is empirically incredible and, alarmingly, facilitates dangerous populist politics. Political theory instead suggests that a theory of democratic representation not only better explains legislative outcomes, but also deprives demagogues and deregulatory partisans of the fictions that prop up their agendas. After a brief survey of representative theory, this article will demonstrate that a model of trustee representation adequately describes administration, reinforces its democratic credentials and constitutes a space for politics in shaping the regulations that govern us all.

This article focuses primarily on the emotion of guilt as providing a justification for retributive legal punishment. In particular, I challenge the claim according to which guilt can function as part of our epistemic justification of positive retributivism, that is, the view that wrongdoing is both necessary and sufficient to justify punishment. I show that the argument to this conclusion rests on two premises: (1) to feel guilty typically involves the judgment that one deserves punishment; and (2) those who feel guilty after wrongdoing are more virtuous (or less vicious) than those who do not. I shall argue that premise (1) is false on both empirical and conceptual grounds and that there are no particularly good grounds supporting this premise (2). Finally, I consider and reject the claim that anger, as opposed to guilt, can afford the type of epistemic justification needed by positive retributivism.

There are only two species of justice: distributive justice and rectificatory justice. Distributive justice is primarily concerned with the distribution of rights and duties to members of society by way of society's institutions. Included in this concern for a just distribution of rights and duties is a concern for those members of society who are disadvantaged in their opportunities to participate in the benefits of social cooperation. When such disadvantages arise, distributive compensation is due to these members of society as a means of removing the disadvantage. To compensate for something is to counterbalance it; to give something equivalent in value to the thing. “The root of ‘compensate’ is “to weigh,” that is to weigh different things together in order to establish a balance between them…‘compensation’ carries the connotation of providing something equivalent in value to that which has been lost.” In the case of distributive compensation, this rendering of an equivalent in value is done in order to alleviate some disadvantage or natural loss that is thought to pose an undue hindrance on members of society.

Global political organization in recent centuries has been dominated by the juridical model of the international states system. Originating in early modern Europe, this distinctive way of structuring political authority has progressively extended its reach to the point where, today, the inhabitable land surfaces of the world are entirely divided up among sovereign states. I will argue that we have both practical and moral reasons to move away from this form of political organization. While my immediate target will be the ideal states system that John Rawls proposes in The Law of Peoples,J. Rawls, THE LAWOF PEOPLES (1999); hereafter “LP.” the main conclusions defended here are applicable to a range of possible models that can be characterized as states-system models. Theories in this range may depart in various ways from current international law but all are marked by the claim that legal-political authority should be concentrated in exclusive or nearly exclusive territorial jurisdictions regarded as equal and independent political units.

The idea of “church autonomy” has risen to prominence in law and religion discourse in recent years. Defenders argue that church autonomy is essential to protecting religious freedom, while critics argue that it permits great harm. This heated dispute often obscures the fact that religious group autonomy is not all-or-nothing. Religious organizations can enjoy some autonomy without being free from all legal oversight. This article thus seeks to make progress in the debate by providing a taxonomy of kinds of judicial examination of religious organizations’ decisions—focusing on employment decisions—and normatively assessing each kind. I argue that religious groups should enjoy protection from certain kinds of examination, but other kinds are justifiable, and even required. My argument supports an approach similar to that seen in some recent European Court of Human Rights decisions, rather than the less discriminating approach of U.S. courts.

—S. Johnson and S. FishSTANLEY FISH, THERE’S NO SUCH THINGAS FREE SPEECH—AND It’SA GOOD THING, TOO 102 (1994).

It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.

—F. FrankfurterUnited States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).

There is a new reason for censorship. It has to do with the “mind-body problem” and, although philosophers are still working on this problem, preliminary results indicate that some of our most cherished First Amendment principles are at best “surprisingly naïve” and at worst “a metaphysical mistake.” Susan J. Brison, Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence, 4 LEGAL THEORY 39, 40, 61 (1998). Briefly put, the mind and the body are intimately, if somewhat mysteriously, connected. Hate speech, which causes mental distress, also causes physical distress. Hate speech thus deserves no special place in our pantheon of expressive liberties and should receive no greater constitutional protection than ordinary physical crimes such as assault.

John Finnis's powerfully and deservedly influential modern classic, Natural Law and Natural Rights, expounds a theory of law and morality that is based on a picture of “persons” using practical reason to pursue certain “basic goods.” While devoting much attention to practical reason and to the goods, however, Finnis says little about the nature of personhood. This relative inattention to what “persons” are creates a risk—one that Finnis himself notices—of assuming or importing an inadequate anthropology. This essay suggests that the “new natural law” developed by Finnis suffers in places from the inadvertent adoption of (or, more likely, acquiescence in) a flawed anthropology—an anthropology under the thrall of modern individualistic commitments. To explain this suspicion, this article discusses three difficulties (or so they seem to me) in his natural law theory: difficulties in accounting for the basic good of friendship, for obligations we owe to others, and for legal authority. These difficulties may seem disconnected, but this article suggests that they may all reflect an inadequate anthropology—one that Finnis does not exactly embrace (in fact, I suspect that he would reject it) but that is pervasive today and that in places may affect his theorizing.

One of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential and lexical-semantic rules that determine the meaning of legal speech acts. I base this argument on an inferential model of speech acts, which I develop through a discussion of graded speech acts, and on the idea that the use of speech acts is governed by multiple and potentially conflicting conventions. I show how this tolerance allows the law to resolve the tension between dynamism and traditionality, and discuss its sociological and moral implications.

Think of the color spectrum, spread out before you. You can identify the different colors with ease. But if you are asked to indicate the point at which one color ends and the next begins, you are at a loss. “There is no such point,” is a natural thought: One color just shades gradually into the next.

Sometimes it is morally permissible to prevent someone from performing a wrongful act by harming him before he has a chance to act. It is permissible, for example, to kill someone you reasonably fear is about to kill you. Under other circumstances, however, it may only be permissible to threaten to harm someone to discourage him from performing a wrongful act. It is not always permissible straightaway to harm him. A military commander, for example, may threaten an enemy with disproportionate retaliation, even though it would not ordinarily be permissible to carry it out.

The possibility of collective action is essential to human freedom; yet, as Rousseau famously argued, individuals acting together allow themselves to depend on one another's choices and thereby jeopardize one another's freedom. These two facts jointly constitute what I call the normative problem of collective action. I argue that solving this problem is harder than it looks: it cannot be done merely in terms of moral obligations; indeed, it ultimately requires putting in place a full-fledged system of contract rights. The point has important ramifications for contract theory: the role that contract rights play in reconciling collective action and freedom turns out to be crucial to understanding how—and by whom—these rights can legitimately be enforced. It also explains why expectation damages should be the standard remedy for breach of contract.

This is the second of two closely related articlesThe first is Warren F. Schwartz, Long-Shot Class Actions: Toward a Normative Theory of Legal Uncertainty, 8 LEGAL THEORY 297 (2002). challenging the widely held belief that plaintiffs, through the settlement process, are realizing “too much” from “unmeritorious” claims. No one has offered a systematic justification for this belief. It appears, however, to be based upon the effects produced by three characteristics of the settlement process: (1) the outcome of litigation is uncertain; (2) when, as in a class action, the stakes are very high for a defendant, the defendant will be very risk-averse and will consequently be prepared to pay in settlement much more than the expected value of its liability; and (3) litigation is costly.