The criminal trial of Elizabeth Holmes has reanimated public interest in fraud. Holmes, once a Silicon Valley prodigy, was charged with two counts of conspiracy to commit wire fraud and eleven counts of wire fraud. A jury found Holmes guilty on four counts, potentially subjecting her to 80 years in prison. This Note uses the example of Elizabeth Holmes's case to examine more broadly the role of morality in fraud and argues for a new framework by which to articulate and (...) prosecute fraud. Criminal jurisprudence has struggled to construct a satisfactory definition of "white-collar crime" since sociologist Edwin H. Sutherland first coined the term in 1939. White-collar crime, which is dominated by fraud, has a significant moral dimension. And beneath fraud's statutory language lies a simple notion of morality: it is wrong to deceive another out of their property. Because of this moral dimension, the adjudication of white-collar crimes would benefit from the application of Immanuel Kant's universalizability principle. The purpose of this Note is to show that the traditional degrees of culpability, either at common law or according to the Model Penal Code, are insufficient and should be supplanted with a standard based on Kant's philosophy. Although the traditional degrees of mental states are adequate for the adjudication of most crimes, the same cannot be said of white-collar crimes. Resolving white-collar cases has proven to be a difficult task. Courts have shifted to using morality to adjudicate white-collar crimes. Mixing of morality and black-letter law has convoluted the adjudication of fraud. Jurors, for instance, are often required to speculate not only about a defendant's mental state in the traditional legal sense but also to only convict if they find the defendant was aware that what she was doing was wrong—a principle called "consciousness of wrongdoing." A simplified solution—one that aligns with the flexibility required of fraud statutes and coheres with the congressional intent behind those statutes—involves universalizing fraud by relying on Kantian principles. Part I surveys two aspects of fraud's legal landscape: the statutory language and courts' interpretations of it, proving that consciousness of wrongdoing as the requisite mens rea is a judicial misstep. Then Part II will explain Kant's philosophy, in particular his discussion of the Categorical Imperative. Part III will apply Kant's philosophy and design a new framework in an attempt to remedy some shortcomings of fraud jurisprudence. (shrink)

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a (...) technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our time. It is not only ethically relevant, it is itself an ethic. Let me explain. (shrink)

This article puts forward a thesis and then attempts to prove that thesis in two related areas. The thesis is that legal theory in general, and critical legal theory in particular, has concentrated too much on critiques of objectivity, wrongly assuming that "subjectivity" was an unproblematic term. Subjectivity, like mortality, has seemed not only attainable but inevitable. It is objectivity which is presumed to be the problematic goal of our theories and our attempts at doctrinal interpretation. This article reverses the (...) focus, concentrating on the construction of subjectivity in law and social theory... Having pointed out that critical theories focus mainly on the impossibility of reaching "objectivity," I show that some of the same critiques can be turned on the construction of "subjectivity" as well. The parallelism is more than mere symmetry. Just as the concept of objectivity can be used to armour decisions or social practices, so theoretical results and ideological slant can be dictated by loading up the abstract "subject" of a political or economic theory with a particular set of drives, motivations, and ways of reasoning...I then turn to the legal "subject" around whom the law revolves and try to develop a sketchy history of the changing qualities which that subject has been believed to possess. I conclude that the ideas associated with postmodernism are a useful framework for understanding the subject in legal theory and in legal practice. In fact, bizarre as it may seem, the law already incorporates a more postmodern view of the subject than either economics or mainstream political theory. (shrink)

In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus provide (...) an end run around the tiers of scrutiny and other familiar forms of means-ends analysis. And yet it is surprisingly difficult to identify what makes a law a ban and why that characterization should matter. Why are yard signs an “entire medium of expression” or assault weapons an “entire class of ‘arms’”? Why does it matter if they are completely prohibited? If the ban label is to have such important constitutional consequences, these questions must be brought to the fore. Using the emerging jurisprudence of the Second Amendment as an illustration, this Article explores functional, formal, and purposivist answers. It argues that none of these answers can avoid judicial discretion in the way that some proponents of rules-based jurisprudence might wish. But the ban framework might nonetheless be defensible in a limited set of cases, especially on functional grounds, as a shorthand for the conclusion that a challenged law impermissibly interferes with rights holders’ ability to effectuate their constitutional interests. (shrink)

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons. And yet (...) the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally focused on truth alone, as if all true beliefs must be treated equally. This thin account leaves the epistemic theory vulnerable to withering criticism, especially in a “post-truth” era. This Article suggests that the epistemic theory of the First Amendment might be reframed around a different value: not truth alone, but knowledge. Beginning with the tripartite definition of knowledge as justified true belief, philosophers from Plato until the present day have tried to account for what makes knowledge distinct and distinctly valuable. And in many ways law, too, already accounts for the existence and value of justifications, not just true beliefs. Identifying and exploring those threads of constitutional theory and doctrine can help provide a richer account of the cognitive First Amendment at a time when it is sorely needed. Doing so can also help resolve thorny doctrinal problems like those involving professional speech and institutional deference. (shrink)

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed. This theory has three important implications for the role of (...) history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught — and no more so — than applying Founding-era legal doctrines. (shrink)

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since. Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, (...) when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided—or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it? This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn’t the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized. (shrink)

Law is plural. In all but the simplest situations multiple laws overlap—national laws, subnational laws, supranational laws, non-national laws. Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law. This chapter cannot yet provide this concept; it can serve only develop one element. That element is recognition. Recognition is (...) amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My suggestion is that we should accept not one but two rules of recognition in the concept of law. One, well-known, is the rule of internal recognition as developed by H.L.A. Hart—the idea that a developed legal system requires its recognition as law by its officials. The other, much ignored but equally important, is the rule of external recognition—the idea that law is law insofar as it is recognized externally by other legal systems. The rule of internal recognition is an example of a secondary rule. The rule of external recognition is of a different type. It is a tertiary rule. Hart suggested that a legal system is not complete unless it has, in addition to primary, also secondary rules. My suggestion is that, under conditions of legal pluralism, a legal system is not complete without such tertiary rules. (shrink)

Professor Michael S. Moore, Charles R. Walgreen, Jr. Chair and Co-Director, Program in Law and Philosophy at the University of Illinois College of Law, delivered Duke Law's Annual Brainerd Currie Memorial Lecture entitled "The Elusive Quest for a Constitutional Right to Liberty." One of the country's most prominent authorities on the intersection of law and philosophy, he has published eight books and some 60 major articles, which have appeared in the country's top law reviews and peer reviewed journals in philosophy (...) and psychiatry. He is the author of Placing Blame, a General Theory of the Criminal Law, widely regarded as the leading modern statement of the retributivist theory of punishment and of that theory's systematic application to criminal law doctrine. In Act and Crime: The Philosophy of Action and its Implications for Criminal Law, Moore provided a unified theory of action that underlies English and American criminal jurisprudence. Professor Moore has presented more than 150 lectures and papers in law, jurisprudence, political theory, legal philosophy, political science and economics, philosophy, psychology, and psychiatry. Sponsored by the Office of the Dean. (shrink)

How should we make interpersonal comparisons of well-being levels and differences? One branch of welfare economics eschews such comparisons, which are seen as impossible or unknowable; normative evaluation is based upon criteria such as Pareto or Kaldor-Hicks efficiency that require no interpersonal comparability. A different branch of welfare economics, for example optimal tax theory, uses “social welfare functions” to compare social states and governmental policies. Interpersonally comparable utility numbers provide the input for SWFs. But this scholarly tradition has never adequately (...) explained the basis for these numbers. John Harsanyi, in his work on so-called “extended preferences,” advanced a fruitful idea. While an ordinary preference is a ranking of outcomes, an “extended preference” is a ranking of individual histories. To say that individual k has an extended preference for history over means something like the following: k prefers to have the attributes of individual i in outcome x, as opposed to having the attributes of individual j in outcome y. Harsanyi’s proposal was to endow individuals with “extended preferences”; to represent such preferences using “extended” utility functions; and to employ such functions, in turn, as the basis for interpersonal comparisons of well-being levels and differences. Harsanyi’s analysis, however, had various gaps and flaws. In this Article, I both diagnose these difficulties, and show how they can be remedied - yielding a viable account of interpersonal comparisons, one sufficient for the needs of the SWF approach. (shrink)

Dr. Melina Constantine Bell is an Associate Professor of Philosophy and Law at Washington and Lee University. She joined the philosophy department in 2005 and became associate professor in 2011. She was appointed Associate Professor of Law at the law school in 2015. She is a core faculty member in the Women's, Gender, and Sexuality Studies Program and an affiliate faculty member in the Shepherd Program for the Interdisciplinary Study of Poverty and Human Capability. Professor Bell's primary research interests are (...) in political philosophy, philosophy of law, and feminist philosophy. Her publications have focused on several different ways in which the basic structure of society, or particular domains within it, reflect hierarchies of social power that unduly restrict human freedom and opportunity and impede human flourishing. (shrink)

Mary Ziegler is the Stearns, Weaver, Miller Professor at Florida State University College of Law. In addition to more than twenty articles on the legal history of reproduction and sexuality, she is the author of After Roe: The Lost History of the Abortion Debate, published by Harvard University Press in 2015. For After Roe, she is the recipient of the biannual Thomas J. Wilson Prize for the best book published by the press in any discipline.

This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending (...) accepted notions governing the limits of judicial discretion. (shrink)

:Preference-aggregation problems arise in various contexts. One such context, little explored by social choice theorists, is metaethical. ‘Ideal-advisor’ accounts, which have played a major role in metaethics, propose that moral facts are constituted by the idealized preferences of a community of advisors. Such accounts give rise to a preference-aggregation problem: namely, aggregating the advisors’ moral preferences. Do we have reason to believe that the advisors, albeit idealized, can still diverge in their rankings of a given set of alternatives? If so, (...) what are the moral facts when the advisors do diverge? These questions are investigated here using the tools of Arrovian social choice theory. (shrink)

A large literature documents the correlates and causes of subjective well-being, or happiness. But few studies have investigated whether people choose happiness. Is happiness all that people want from life, or are they willing to sacrifice it for other attributes, such as income and health? Tackling this question has largely been the preserve of philosophers. In this article, we find out just how much happiness matters to ordinary citizens. Our sample consists of nearly 13,000 members of the UK and US (...) general populations. We ask them to choose between, and make judgments over, lives that are high in different types of happiness and low in income, physical health, family, career success, or education. We find that people by and large choose the life that is highest in happiness but health is by far the most important other concern, with considerable numbers of people choosing to be healthy rather than happy. We discuss some possible reasons for this preference. (shrink)

This Article provides a comprehensive, critical overview of proposals to use happiness surveys for steering public policy. Happiness or “subjective well-being” surveys ask individuals to rate their present happiness, life-satisfaction, affective state, etc. A massive literature now engages in such surveys or correlates survey responses with individual attributes. And, increasingly, scholars argue for the policy relevance of happiness data: in particular, as a basis for calculating aggregates such as “gross national happiness,” or for calculating monetary equivalents for non-market goods based (...) on coefficients in a happiness equation. But is individual well-being equivalent to happiness? The happiness literature tends to blur or conflate important concepts: well-being, subjective well-being, happiness, utility, satisfaction. A preference-realization account of well-being denies the equivalence of happiness and welfare, since someone can have preferences for non-mental attributes, such as health, autonomy, goal-fulfillment, knowledge or the quality of her relationships. It is critical, therefore, to differentiate two potential policy roles for happiness surveys. First, the survey response may provide prima facie evidence of the respondent’s preference-utility: the extent to which her preferences are realized. Second, it may indicate her experience-utility: the quality of her mental states. The Article clarifies these two, very different, ideas. It then criticizes, in turn, the preference-utility and the experience-utility defenses of the policy relevance of happiness surveys. Enthusiasm about happiness is premature. (shrink)

Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on the view that they do. The authors want to reexamine this question by taking the approach advocated by the original Legal Realists. The current project seeks to add to our knowledge of the relevance of case law by focusing on an area that has received little examination: how pronouncements about employment discrimination law by appellate courts translate into (...) understandings and behavior at the ground level. As our lens, we use evidence of how people talk about the relevance of changes in the law. This new Old Legal Realist perspective suggests that social and economic factors play a more important role than case law in outcomes on the ground. Cases cannot have an impact, if the local social and economic variables are not aligned in a fashion that allows the impact to occur. (shrink)

This Article addresses the rise of "co-religionist commerce" in the United States—that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, coreligionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated. Under current constitutional doctrine, co-religionist commercial agreements must be translated into secular terminology if (...) they are to be judicially enforced. But many religious goods and services cannot be accurately translated without religious terms and structures. To address this translation problem, courts could make use of contextual tools of contract interpretation, thereby providing the necessary evidence to give meaning to co-religionist commercial agreements. However, contextual approaches to co-religionist commerce have been undermined by two current legal trends—one in constitutional law, the other in commercial law. The first is New Formalism, which discourages courts from looking to customary norms and relational principles to interpret commercial instruments. The second is what we call Establishment Clause Creep, which describes a growing judicial reticence to adjudicate disputes situated within a religious context. Together, these two legal developments prevent courts from using context to interpret and enforce co-religionist commercial agreements. This Article proposes that courts preserve co-religionist commerce with a limited embrace of contextualism. A thorough inquiry into context, which is discouraged by both New Formalist and many Establishment Clause doctrines, would allow courts to surmise parties' intents and distinguish commercial from religious substance. Empowering the intent of co-religionist parties and limiting the doctrinal developments that threaten to undermine co-religionist commerce can secure marketplace dealings without intruding upon personal faith. (shrink)

A great deal of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech, like nonrepresentational art, falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is so common, the case is also important — artists like Lewis Carroll and Jackson Pollock are not the only putative (...) “speakers” who should be concerned about the outcome. This Article is the first to explore thoroughly the relationship between nonsense and the freedom of speech; in doing so, it suggests ways to determine what “meaning” means for First Amendment purposes. The Article begins by demonstrating the scope and constitutional salience of meaningless speech, showing that nonsense is multifarious, widespread, and sometimes intertwined with traditional First Amendment values like autonomy, the marketplace of ideas, and democracy. The second part of the Article argues that exploring nonsense can illuminate the meaning of meaning itself. This, too, is an important task, for although free speech discourse often relies on the concept of meaning to chart the Amendment’s scope, courts and scholars have done relatively little to establish what it entails. Analytic philosophers, meanwhile, have spent the past century doing little else. Their efforts — echoes of which can already be heard in First Amendment doctrine — suggest that free speech doctrine is best served by finding meaning in the way words are used, rather than in their relationship to extra-linguistic concepts. (shrink)

The first three parts of this article discuss means and ends related to providing education in an essentially decentralized hypothetical society; part 4 considers contemporary American educational policy in light of this analysis; and part 5 analyzes several contemporary proposals for educational reform.

The connections between structuralist, poststructuralist and postmodern philosophers are traced. The opposition between individualists and relationists over the meaning of subjectivity is discussed.

The logic of some other systems of thought, explanation, and prediction are discussed, in order to find what can be learned about the sociocultural contexts and their functions in other cultures. The truths they may represent are about the human quest to understand causes and effects.

Philosopher Rene Descartes claimed that animals were no different than inanimate objects: that they could not think or feel pain. Rejection of Descartes' views on animals is nearly universal, but today's factory farms are only possible by treating animals according to Cartesian principles. When faced with the realization that animal foods can be made affordable to most consumers only through factory farming, society is left with a dichotomous choice: either stop purchasing and consuming animal products, or animals will continue to (...) suffer in factory farms. (shrink)

Epistemology is important in the debate about science and technology in the courtroom. The epistemological issues and the arguments about them in the context of scientific and technical evidence are now well developed. Of equal importance, though, is an understanding of norms of persuasion and how those norms may differ across disciplines and groups. Norms of persuasion in the courtroom and in legal briefs differ from norms at a scientific conference and in scientific journals. Here, Kritzer examines the disconnect between (...) science and the courtroom in terms of the differing norms of persuasion found within the scientific community and within the legal community. (shrink)