4 days ago · The Legal Theory Bookworm recommends Legal Rights and Moral Rights by Matthew Kramer. Here is a description: In a short span, this Element will delineate the general nature of legal and moral rights and the general nature of the holding of rights, and it will also sketch the justificatory foundations of rights. Hence, the Element will treat of some major topics within legal, political, and ...

Jan 15, 2025 · Lawrence B. Solum (University of Virginia School of Law) & Randy E. Barnett (Georgetown University Law Center) have posted Originalism and the Party Presentation Principle on SSRN. Here is the abstract: The Supreme Court sometimes adheres to what it calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been ...

4 days ago · James Macleod (Columbia University - Law School) has posted Standard Textualism on SSRN. Here is the abstract: For as long as legal scholars have been writing about the rules-versus-standards distinction, textualism has been presumed to produce typically rule-like law. This Article argues for the opposite view. Far from generating the “law of rules” that Scalia famously envisioned, the ...

Oct 24, 2024 · Youngjae Lee (Fordham University School of Law) has posted Proportionalities (Notre Dame Law Review Reflection, Volume 99, Pp. 191-228) on SSRN. Here is the abstract: "Proportionality" is ubiquitous. The idea that punishment should be proportional to …

Sep 19, 2014 · Janine Young Kim (Marquette University - Law School) has posted Resistance and Transformation: Re-Reading Mari Matsuda in the Postracial Era (18 UCLA Asian Pacific American Law Journal 35, 2012-2013) on SSRN. Here is the abstract: This symposium essay examines the impact of Mari Matsuda's seminal 1987 article, "Looking to the Bottom: Critical Legal Studies and Reparations," and argues that her ...

Jun 5, 2022 · This entry in the Legal Theory Lexicon focuses on what is called "New Originalism.” Of course, labels like this are just names that carve up the theoretical landscape. For our purposes, "New Originalism" refers to a cluster of originalist theories that reject a set of ideas from older originalist theory, including (1) original intent originalism (in …

Dec 1, 2024 · Introduction This installment of the Legal Theory Lexicon is a very brief introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory. Law students learn early on that classroom...

Aug 13, 2024 · Evan D. Bernick (Northern Illinois University - College of Law) has posted Abolish Conspiracy on SSRN. Here is the abstract: Conspiracy seems as American as apple pie. Every state makes it a crime to agree to and act in furtherance of a plan to accomplish an unlawful goal. There are dozens of federal conspiracy statutes in the United States Code. The crime of conspiracy is the darling of ...

Sep 9, 2012 · Introduction The counter-majoritarian difficulty may be the best known problem in constitutional theory. The phrase is attributed to Alexander Bickel—a Yale Law School Professor—who is said to have introduced it in his famous …

Dec 15, 2024 · Introduction A prior Legal Theory Lexicon post explored utilitarianism, an approach to normative moral theory that has had an enormous influence on legal thought. This week, I take up one of utilitarianism's main rivals, deonotology. Deontological moral theories vary in myriad ways, but the focal point for deontology is the concept of duty with its correlative notions of rights and permission ...