UNGER'S CRITIQUE OF FORMALISM IN LEGAL REASONING: HERO,HERCULES, AND HUMDRUM

“Doctrine can exist—the formalist says or assumes—because of a contrast between the more determinate rationality of legal analysis and the less determinate rationality of ideological contests. This thesis can be restated as the belief that law making and law application differ fundamentally, as long as legislation is seen to be guided only by the looser rationality of ideological conflict… The modern lawyer may wish to keep his formalism while avoiding objectivist assumptions. He may feel happy to switch from talk about interest group politics in a legislative setting to invocations of impersonal purpose, policy, and principle in an adjudicative or professional one. He is plainly mistaken; formalism presupposes at least a qualified objectivism.”     

Rights and Resources—Libertarians and the Right to Life

The author addresses Robert Nozick's claim that: “The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition.” Hence Nozick insists that rights are violated if citizens are compelled to contribute to others' welfare, however urgent their needs may be. The author argues that it is characteristic of libertarian theories that they invoke the moral sanctity of private property against welfarist or egalitarian conceptions of social justice. Nozick's version of the libertarian critique has three conceptual pillars–“right,”“thing” and “space.” On that basis Nozick claims that talk of welfare “rights” can be condemned on the plane of rights. This is true, Nozick maintains, even of “the right to life.” The author contends that this argument fails. It equivocates over the idea of “rights”; and it misconceives crucial features of property. Nozick deploys exclusive “domain rights,” whilst attacking “important‐interest rights.” His historical‐entitlement theory fails as a justification of private property. The author argues that, so far as material objects are concerned, private property institutions depend upon trespassory rules which do not impose morally binding obligations unless basic needs are catered for. Furthermore, private property institutions also comprise monetary resources to which the spatial metaphor of exclusive rights does not apply. Holdings vested in any particular person at any particular time are stamped, morally, with a mix of contestable and mutable property‐specific justice reasons. Hence it is fallacious to suppose that ownership rights together exhaust all normative space over “things.” The major objection to speaking of everyone's having a right to various things such as equality of opportunity, life, and so on, and enforcing this right, is that these “rights” require a substructure of things and materials and actions; and other people may have rights and entitlements over these. [≡] The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition. (Nozick 1974, 238)     

Race matters: A critical look at racial profiling, it's a matter for the courts

The disproportionate number of minority motorists stopped by the police gives rise to a host of salient questions which center on contemporary police practices. Research has shown that traffic stops are routinely used as a “pretext” to stop minority drivers. In this article, the authors argue that the current police practice of disproportionately stopping minority motorists was formally sanctioned by the Supreme Court in Whren v. United States (1996). The current thrust to examine police practices will do little to end racial profiling, and the underpinnings of this problem, in part, lie in judicial precedent. The authors present the notion that in order to minimize racial profiling, the court must carve out an objective test from the Whren decision that will guide police behavior in the pretextual stops of motorists. The article concludes with a template of what this objective test may look like.     

Toward a Theory of Performance Reporting to Achieve Public Sector Accountability: A Field Study

Governments in many countries are implementing performance reporting systems. Many advocates claim that performance reporting results in accountability and effectiveness. There is no theory to justify these claims and guide implementation. This paper presents five field studies of five performance‐reporting systems to begin building theory. Four locations are optimistic; one is not. Mere adoption of performance reporting is not effective. Broad involvement across all government levels is important. Communication and integration with strategic planning and agency management are essential. Two theoretical streams, accounting in organized anarchies and the constitutive role of accounting, are useful theoretical bases.