Because dementia can cause individuals to make decisions that they otherwise would not, the law needs a mechanism to determine which decisions are entitled to the respect of the legal system and which may be overridden by others. In the philosophical literature, three primary theories for how to make this determination have been offered. First, "Cognitivism" posits that whether a decision should be recognized is a function of the mechanical functioning of the individual's brain at the time the decision is (...) made. Second, "Essentialism" holds that decisions should be recognized so long as they are consistent with the cluster of values and attributes that define the individual. Third, "Narrativism" argues that decisions should be respected where they follow from the life story of the individual making them.In the growing tradition of experimental philosophy, this Article empirically analyzes support for these three alternative theories in a mixed-methods study involving a population of American seniors, including an online survey (n=235) and interviews (n=25). Close analysis of the results revealed a near-consensus that Narrativism is the theoretical framework through which participants understood the question of when the legal system should intervene in private decision-making. In short, participants wanted the legal capacity to make decisions taken from them only when dementia became so advanced that they would no longer be the same person they previously had been, which they understood as a question of narrative continuity. (shrink)

Pragmatism is a robust philosophy, vernacular hand waiving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism. While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism — that which, in the spirit of the 21st Century’s 140-character limit, I will call “pragtivism.” This Article is intended as an introduction to pragtivism, a critique of the practice, and a constructive (...) framework for addressing some of my critiques. To highlight the contours of pragtivism, this Article tells the story of the Dunes Sagebrush Lizard. In 2010 the United States Fish and Wildlife Service proposed to list the imperiled Lizard under the Endangered Species Act. In record time, the State of Texas, the Texas Oil and Gas Association, and other stakeholders developed a conservation plan for the lizard. FWS approved the plan and as a consequence agreed to withdraw its proposed listing. In March 2016 the Court of Appeals for the D.C. Circuit upheld the non-listing. The Texas Plan and the D.C. Circuit decision are results of “innovative” environmentalism, which relies on “flexible,” “collaborative,” “cooperative,” “voluntary,” “pragmatic” “partnerships” to achieve “win-win solutions.” But does this pragtivist boasting undermine more critical dialogue and more effective environmental protection? Does it trample on an intentional and well-reasoned structure of traditional environmental law? Is it actually pragmatic in the philosophical sense? This Article is a first attempt to answer some of these questions and to generate more analysis of the influence of pragmatism on environmental activism. It begins with a taxonomy of pragmatism in law and policy, details the Lizard’s story as a case study, offers a critique of pragtivism as a method of environmental protection, and concludes by offering a framework that might improve the use of pragtivism if the practitioners are truly willing to be pragmatic. (shrink)

The delivery of technology professional development in elementary and secondary school systems typically follows a traditional approach. In-service teachers receive information from experts that may stand and deliver the topics that they have been charged with addressing. Adult Learning Theory and best practices in educational professional development suggest that this conventional approach may not be the most effective way to provide in-service learning experiences. Calls for professional development that is more relevant to the teacher, more hands on, and more aligned (...) to daily instructional practice have increased. As schools embrace new technologies at an ever increasing rate, new models of in-service professional development that can keep pace and effectively train teachers, are needed. Reverse mentoring may have potential as technology professional development delivery model. Used in corporate settings initially, in reverse mentoring, the student becomes the teacher. This study explored whether or not reverse mentoring assisted teachers in the adoption of new technology using a self-reporting instrument known as The Stages of Adoption of Technology. It also examined teacher attitudes toward reverse mentoring as a professional development delivery model. The study found that student and teacher reverse mentorship training resulted in technology adoption for most of the participants. While there were issues that surfaced during the case study, which primarily centered on the absence of structured time for the mentor and mentee, views of the model were favorable. In addition to indicating possible structural and logistical issues involved with the implementation of a reverse mentoring technology professional development model, findings provide insight into how such an experience can be optimized for improved training outcomes. Teacher participant responses, and their advancement in technology adoption, suggest that reverse mentoring may be a viable way for delivering professional development in 21st Century schools. (shrink)

In a challenge to recent writings of Derk Pereboom and Gregg Caruso,3 Larry Alexander makes the following claim: If one accepts the Pereboom-Caruso “hard incompatibilist” view of choice, which regards blame and retributive punishment as morally unjustified because free will is an illusion, then “normativity completely disappears.” In making this claim, Professor Alexander appears to hold that the moral distinction between right and wrong conduct cannot effectively exist unless those who do wrong “deserve” to receive blame and punishment in response (...) to their misbehavior. This is not, however, necessarily so. (shrink)

Like others who work with language, many lawyers no doubt appreciate good kennings. However, metaphors also play a much deeper role in thought and law than style, ornament, or verbal virtuosity. As we shall see, metaphors play a necessary role in our categories of thought. As a result, metaphors are a necessary part of thought itself, including legal thought.

Despite Francis Bacon’s cautionary note, I have always been a fan of parables, and perhaps the most poignant one to speak for perils of the legal profession is Franz Kafka’s “Vor dem Gesetz” (“Before the Law”), one of the relatively few works to be published in his lifetime. It was seen first in the almanac Vom Jüngsten Tag: Ein Almanach Neuer Dichtung in December 1915 before it was included in his novel Der Prozess (The Trial), which was unpublished in his (...) lifetime. He wrote it at one sitting on December 13, 1914, and in fewer than 650 words, Kafka illustrates the menace of the law to those for whom it is a mystery and the indifferent cruelty possible from those who have access to it. He does this while subtly referencing, through metaphor, the social, political, and educational barriers that have always separated those who have access to the law and those whose ignorance of it can cost them everything. And he does it with a sheen of absurdist humor that reflects the existentialist artistic response against the alienation of the modern world that was unfolding around him. (shrink)

This article contributes to the outline of the origin of property rights set forth by Professor Krier, by more fully analyzing the role of evolutionary biology in the development of property rights. This article focuses on the pre-political formation of property ownership and the initial formation of concepts of property and ownership. Expanding on Krier’s analysis, this article considers the implications of this evolutionary foundation on our modern property regime, particularly given the growing chasm between the wealthy on one side (...) and the poor and middle-class on the other. Part II discusses the growing disparity of wealth in America and our property system’s failure to respond to this inequity. While current debates among property scholars have attempted to address concerns of inequality, Part III discusses how scholars have inadequately analyzed the origin of the rights that accompany ownership. Part IV explores the evolution of property rights in nature. The property rights displayed by animals in the wild mirror many of our common law property rules, and Part V argues that our common law property system is based on the same unconscious evolutionary strategy that causes the deference to ownership that is displayed in animal behavior. Part VI discusses what this evolutionary foundation to our default property rules means for our modern property regime. (shrink)

Ronald Dworkin’s contributions to legal philosophy have been subject to severe criticism in recent years. Other legal philosophers call his arguments “deflected or discredited,” laced with “philosophical confusions,” and “deeply embedded” mistakes. As Brian Leiter writes, “[t]he only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path....” This Article endeavors to show that, far from an effort beset with primitive errors, Dworkin’s challenge to legal positivism (...) in the opening pages of his seminal work was neither misguided nor trivial. Rather, Dworkin’s challenge remains as important and thought-provoking today as it was when he first set it down. His challenge, though straightforward, has never been satisfactorily answered. Rather than grapple with Dworkin’s argument, legal philosophers have either misunderstood or trivialized his insights in the decades since. But there is a reason H.L.A. Hart, one of Dworkin’s examiners at Oxford, saved his jurisprudence examination before ever having reason to believe that Dworkin would become the primary opponent to legal positivism. Hart’s challenge—the argument from theoretical disagreement—still burns bright nearly a quarter-century on. Furthermore, this Article seeks to explain why legal positivism’s inability to preserve the face value of theoretical disagreement makes it improbable that legal positivism offers an adequate descriptive account of the nature of law. It also endeavors to outline why this deficiency is so immensely important. To accept the legitimacy of theoretical disagreement is accept that to know what the law is one must know something about the moral and political culture in which that law resides. (shrink)

This Article will generally describe philosophical logic, logical form, and logical fallacy. Further, it will explain one specific logical fallacy—the Fallacy of Negative Premises—as well as how courts have used the Fallacy of Negative Premises to evaluate legal arguments. Last, it will explain how lawyers, judges, and law students can use the Fallacy of Negative Premises to make and evaluate legal argument.