Two Misunderstandings About Public Justification and Religious Reasons

Two important objections have been raised against exclusivist public reason (EPR). First, it has been argued that EPR entails an unjust burden for citizens who want to appeal to non-public reasons, especially religious reasons. Second, it has been argued that EPR is based on a problematic conception of religious reasons and that it ignores the fact that religious reasons can be public as well. I defend EPR against both objections. I show that the first objection conflates two ideas of public justification (public justification as a conception of political legitimacy and public justification as an ideal of civility) and that the second objection conflates two ways to understand and identify religious reasons. Ultimately, it turns out that those who defend such objections actually share the concerns that justified EPR in the first place. In other words, if we are clear about the idea of public justification and the kind of religious reasons that EPR is really about, it appears that justificatory liberals are in fact all exclusivists.     

The Causal Mechanism Theory of Legal Causation

Theories of legal causation that identify the concept with probability-raising generate false positives where the defendant's conduct raises the probability of harm but brings about that harm in the wrong kind of way. Moreover, what the law seeks to deter is not conduct that raises the probability of harm, but rather conduct that is dangerous. A legal or proximate cause is one that harms the plaintiff through the causal mechanism that sustains the lawful generalization that the defendant's conduct was dangerous.     

In Defense of Criminal Possession

Criminal law casebooks and treatises frequently mention the possibility that criminal liability for possession is inconsistent with the Voluntary Act Requirement, which limits criminal liability to that which includes an act or an omission. This paper explains why criminal liability for possession is compatible with the Voluntary Act Requirement despite the fact that possession is a status. To make good on this claim, the paper (1) defends the Voluntary Act Requirement, (2) offers an account of the nature of omissions of the kind that need be included in that for which criminal liability is imposed in the absence of a voluntary act, and (3) argues that possession is a status that is constituted in part by an omission of this sort. The result is that to hold people criminally liable for possession is to hold them criminally liable both for a status and for an omission, an omission that is part of what it is to have that status. The paper also distinguishes possession from vagrancy, which is not a proper object of criminal liability, precisely because of constraints placed by the Voluntary Act Requirement. And the paper argues that possession incident to dispossession is not a proper object of criminal liability because it does not involve an omission of the kind that other forms of possession involve.     

Rethinking Criminal Libel: An Empirical Study

The prevailing view of criminal libel among communication law scholars in the United States is that there are very few prosecutions, that most of the prosecutions are about politics or public issues, and that none of the prosecutions are necessary because victims of defamation can sue for civil libel. The results of an empirical study of all Wisconsin criminal libel cases from 1991 through 2007, however, suggest that criminal libel is prosecuted far more often than realized, that most criminal libel prosecutions have nothing to do with political or public issues, and that the First Amendment is an effective shield on the rare occasions when a criminal libel prosecution is politically motivated. This article concludes that criminal libel can be a legitimate way for the law to deal with expressive deviance that harms the reputations of private figures in cases that have nothing to do with public issues.     

Statutory interpretation, capture, and tort law: the regulatory compliance defense

The regulatory compliance defense holds firms liable whose productsor product warnings fail to satisfy federal regulatory standards,but does not exculpate firms that comply. Rather, complianceis relevant evidence for a jury to consider in a products liabilityaction. This article argues that the defense should exculpatecompliant firms as a matter of law. A Congress that thoughtabout the matter would prefer this judicial construction ofan unclear safety statute. To defend this view, the articleargues that a legislature can have intentions in a normativelymeaningful sense, that claims that a Congress or its agenciesare captured by special interests should be nonjusticiable,and that, when a court is in doubt as to what a legislatureintended, it should adopt that construction of the relevantstatute that would be easiest for the legislature to correctif the court errs. In this case, it is easier for Congress tocorrect a construction that it intended to exculpate compliantfirms than a construction that it did not.     

The consumption of lawyer independence

This paper assumes that lawyer independence is a component of the rule of law and that, as such, it deserves as much protection as does independence of judges. The author posits that lawyer independence can only be protected if lawyers govern lawyers. England and Queensland are cited as examples of jurisdictions that have undermined lawyer independence by adopting lawyer regulatory measures aimed at consumer protection. Canada is cited as a jurisdiction that seeks to preserve lawyer independence by recognising that lawyers who have committed to act in the public interest can satisfactorily regulate other lawyers. The author suggests that lawyer independence is a public trust, that all lawyers are the trustees and that they must resist the implementation of regulatory arrangements that compromise lawyer independence. He proposes a method for dealing with corrupt or complacent lawyer regulators.     

Why courts cannot deny ADA protection to plaintiffs who do not use available mitigating measures for their impairments

Congress intended the Americans with Disabilities Act ("ADA") to provide strong standards for addressing and eliminating discrimination against individuals with disabilities. Many commentators have concluded, however, that the federal courts are undermining the goals of the ADA by too narrowly construing membership in the statute's protected class. One example of this trend is courts' hostile treatment of ADA plaintiffs who do not use medications or devices that might alleviate their impairments ("nonmitigating plaintiffs"). Numerous district and appellate decisions have held or suggested that nonmitigating plaintiffs are not protected by the ADA. In addition, some commentators have proposed that courts should evaluate the reasonableness of a plaintiff's decision not to use mitigating measures; they argues that it is unfair to burden an employer with the cost of accommodating a disability that continues to exist only because an employee unreasonably refuses to mitigate it. Contrary to the views of these courts and commentators, however, this Comment will show that nonmitigating plaintiffs are entitled to ADA protection from employment discrimination. It argues that the statute's language, history, and structure, as well as Supreme Court precedent, demonstrate that courts cannot deny ADA protection based on a plaintiff's nonuse of available mitigating measures. It also presents several considerations that weigh against any future congressional enactment that would tie ADA protection to the reasonableness of a plaintiff's decision not to mitigate an impairment.     

Top 10 greatest "hits": important findings and future directions for intimate partner violence research

In this article, the author highlights her choice of the 10 most important recent findings from the intimate partner violence research literature, which include (a) the creation of the Conflict Tactics Scale; (b) the finding that violent acts are most often perpetrated by intimates; (c) a series of findings that indicate that women also engage in intimate partner violence; (d) the finding that intimate partner violence typically evolves out of relationship dissatisfaction; (e) the finding that there are different subtypes of domestically violent men; (f) physiological measures that have added to our knowledge of intimate partner violence; (g) the evolving intergenerational transmission of violence theory; (h) the finding that verbal abuse, neglect, and psychological abuse need to be studied alongside physical violence; (i) research on leaving abusive relationships that may inform policy about sheltering battered women; and (j) the finding that alcohol plays an important role in the production of intimate partner violence. In the conclusion, the author describes a dyadic cycle of violence that may characterize some abusive couples. She also argues for a multimodal theory that links findings obtained from individual, relationship, intergenerational, gender-specific, and cultural perspectives.     

THE TWELVE PEOPLE WHO SAVED REHABILITATION: HOW THE SCIENCE OF CRIMINOLOGY MADE A DIFFERENCE

Three decades ago, it was widely believed by criminologists and policymakers that “nothing works” to reform offenders and that “rehabilitation is dead” as a guiding correctional philosophy. By contrast, today there is a vibrant movement to reaffirm rehabilitation and to implement programs based on the principles of effective intervention. How did this happen? I contend that the saving of rehabilitation was a contingent reality that emerged due to the efforts of a small group of loosely coupled research criminologists. These scholars rejected the “nothing works” professional ideology and instead used rigorous science to show that popular punitive interventions were ineffective, that offenders were not beyond redemption, and that treatment programs rooted in criminological knowledge were capable of meaningfully reducing recidivism. Their story is a reminder that, under certain conditions, the science of criminology is capable of making an important difference in the correctional enterprise, if not far beyond.     

海峡两岸可仲裁事项比较研究

对于可以仲裁的争议事项,祖国大陆和我国台湾的仲裁立法有着不同的规定。大陆1994年《仲裁法》将可仲裁事项限定为平等主体的公民、法人和其他组织之间发生的合同纠纷和其他财产权益纠纷,并明确规定了婚姻、收养、监护、扶养、继承纠纷和依法应当由行政机关处理的行政争议不能仲裁;我国台湾“仲裁法”则将可仲裁事项界定为依法可以和解的争议。海峡两岸可仲裁事项的差异,表明了两岸对争议事项可仲裁性的不同认识,也表明了两岸对当事人自主选择民事纠纷解决方式的不同态度。相比之下,我国台湾“仲裁法”对可仲裁事项的界定,更准确地反映了适宜仲裁的争议事项的范围,更充分地尊重了当事人的仲裁自治权,因而值得祖国大陆参考和借鉴。     

Congressional Performance,Incumbent Behavior,and Voting in Senate Elections

Conventional wisdom suggests that individual members of Congress have no real incentive to act in ways that might improve public evaluations of their collective body. In particular, the literature provides no clear evidence that public evaluations of Congress affect individual races for Congress, and little reason to expect that voters would hold specific individuals responsible for the institution's performance. We suggest that this conventional wisdom is incorrect. Using multiple state‐level exit polls of Senate voting conducted by Voter News Service in 1996 and 1998, we arrive at two key findings. First, we find that evaluations of Congress do have a significant effect on voting within individual U.S. Senate races across a wide variety of electoral contexts. Second, we find that punishments or rewards for congressional performance are not distributed equally across all members, or even across members of a particular party. Instead, we find that the degree to which citizens hold a senator accountable for congressional performance is significantly influenced by that senator's actual level of support for the majority party in Congress, as demonstrated on party votes.     

Litigating life and death.

In cases involving the "right to die," courts are faced with the agonizing task of developing legal standards governing termination of an incompetent patient's medical treatment. In this Article, Professor Rhoden criticizes the two dominant approaches courts have developed--the "subjective" and "objective" tests--and proposes that these standards be abandoned for a legal presumption in favor of family decisionmaking. She maintains that the "subjective" test, which requires the family to provide clear proof that termination of treatment is what the incompetent would have chosen, is often unworkable because a patient's character traits, and even her prior statements about medical treatment, seldom rise to the evidentiary level that courts purport to require. Similarly, she argues that the "objective" test, which requires the family to prove that the burdens of the patient's life, measured in terms of pain and suffering, clearly and markedly outweight its benefits, dehumanizes patients by suggesting that only their present, physical sensations count. Professor Rhoden suggests that the subjective and objective tests are not nearly as distinct as courts have made them. She argues that the rigidity of these legal standards reflects courts' acceptance of the medical profession's presumption in favor of continued treatment, a presumption that places a heavy burden on families seeking to terminate treatment. Drawing on the special qualifications of families as decisionmakers in such cases, Professor Rhoden proposes that courts recognize a presumptive right of families to exercise discretion over treatment decisions. Such a standard would recognize that, although doctors and others can readily prove that terminating the treatment of a patient who can still enjoy life is wrong, it is very hard for families to meet the current standards, which essentially require them to prove that termination is right.     

Justice Between Sites of Justice

Michael Blake argues that states are the primary sites of justice for persons and that the function of international justice is to ensure that states interact with each other in ways that preserve the capacity of each to realize justice for their own members. This paper will argue that justice among states requires more of states than that they preserve and maintain each other's capacity as primary sites of justice. Justice among states will require some justification, as well, of the claims of states over resources and territory within their borders. Such a justification, I suggest, must presume a global institutional order, and this will introduce the problem of coercion in the international domain. International coercion will have implications for Blake's understanding of international economic justice since it is premised on the claim that the domestic context is coercive in a way that the international arena is not.     

Remapping Islamic Terrorism in Algeria

Between 1988 and 2000, thousands of lives were taken in Algeria at the hands of a violence that sought justification in religion—Islam. While these events can be understood as the direct consequence of decolonization and the bloody Algerian War that lasted eight years, it is important to note that the rise of terrorist violence in Algeria has had consequences beyond its national boundaries. For instance, renowned historian Benjamin Stora has argued that the treatment of Islam in contemporary France appears to have been shaped by the long and bloody conflict that resulted in Algeria obtaining its independence. As Stora points out, “the War with Algeria continues through the struggle against Islam, which today is masked as a fight against Islamic ‘fundamentalism’—a word that is curiously borrowed from vocabulary that is specific to Christianity. The observance of a France that is rooted in the purity of a mythical identity, endlessly threatened, is what legitimizes, a priori, all violence, all measures of ‘war’ in a defense against the ‘invaders.’”     

Karl Olivecrona on Judicial Law‐Making

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term “evaluation” in a sense that is broad enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false.     

Book reviews

The ongoing experiment of transitional justice (TJ) may soon find a new testing ground in Burundi. A long anticipated truth and reconciliation commission (TRC) is slated for establishment in the near future. Yet, Burundi continues to face longstanding and deep-rooted problems in its social, political, legal and institutional landscape that will fall outside of the remit of the TRC process, but that stand to negatively affect that process. Absent reform in these areas, the risk exists that the TRC may be judged as little more than inconsequential chatter by a population that has already suffered decades of violent conflict, social exclusion, corruption, and impunity. Informed by theories of transformative justice, this examination considers the potential shortcomings of TJ mechanisms where such reforms are yet to take place. It is argued that in contexts like Burundi, where impunity has become the norm, TJ mechanisms should form one part of a more combined process that ultimately aims to tackle the structures and dynamics that led to violence and that are reproduced in the present.     

Realism about the Nature of Law

Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non‐cognitivists, and who maintained that conceptual analysis (in a fairly broad sense) is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti‐metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non‐cognitivism on the part of the Scandinavians and its implications for their view of the nature of law. I argue (i) that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and (ii) that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, (iii) that the objection to non‐naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values (the ‘world of the ought’) and the world of time and space—is convincing, and (iv) that Kelsen's introduction of a so‐called modally indifferent substrate does nothing to undermine this objection. In addition, I argue (v) that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue (vi) that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms.     

The medical and legal risks of the electronic fetal monitor

Electronic fetal heart monitoring (EFM) is the most widely used method of monitoring the fetal heartbeat for possible signs of distress during delivery. Soon after its development in the 1960s, EFM replaced intermittent auscultation as the standard of care in the obstetrical community. However, Margaret Lent argues that the widespread use of EFM is both medically and legally unsound. Lent points to a series of clinical trials that demonstrate that EFM does not reduce fetal mortality, morbidity, or cerebral palsy rates. These studies suggest that EFM has a very high false positive rate, and that EFM usage correlates strongly with a rise in cesarean section rates. Similarly, EFM provides no protection in the courtroom. Though obstetricians believe that they should use EFM because its status as the standard of care will protect them from liability, Lent argues that it may in fact expose them to liability given its failings. Instead, she argues that auscultation is equally, if not more, safe and effective, and is more likely to protect physicians from liability. Lent concludes that obstetricians have an obligation to their patients and to themselves to adopt auscultation as the new standard of care.