While defeasibility in legal reasoning has been the subject of recent scholarship, it has yet to be studied in the context of judicial opinion. Yet, being subject to appeal, judicial decisions can default for a variety of reasons. Prakken (2001) argued that the defeasibility affecting reasoning involved in adversarial legal argumentation is best analysed as procedural rather than logical. In this paper we argue that the defeasibility of ratio decendi is similarly best explained and modeled in a procedural (...) and dialectical framework. We propose that appeals are best understood as meta-dialogues about the reasoned dialogue occurring in the initial trial. (shrink)

A frequently discussed question in recent jurisprudential debates concerns the extent to which conversational implicatures can be conveyed reliably in legal language. Roughly, an implicature is a piece of information that a speaker communicates indirectly, that is without making the conveyed information explicit. According to the classical analysis of implicatures, their successful communication depends on a shared expectation of interlocutors to be cooperative in conversation. However, recently some legal theorists have claimed that in legal language implicatures tend to be unreliable (...) because – according to them – communicative cooperation cannot be presumed in legal discourse to the same extent as in ordinary conversations. In this article, I will focus on implicatures in a particular kind of legal discourse, namely judicial opinions, and I will discuss to what extent we should also be sceptical about implicatures in this type of legal discourse. My aim is to suggest that scepticism about the reliability of implicatures in judicial opinions appears implausible once we take evidence into account, i.e. examples of implicatures from judicial opinions. I will argue that the evidence that sceptics provide is not only scarce but inconclusive and present a wealth of implicatures from judicial opinions that are not unreliable. I will conclude that an evidence-based approach casts the sceptical view into doubt and suggest that communicative cooperation is presumed in judicial opinions, as well. (shrink)

Muslims are a marginal minority in Poland, but research shows that they are often subject to negative perceptions and hostility from the majority. Orientalist stereotypes about Islam and the people associated with it are widespread and often reproduced in the media. Research from North America and the European Court of Human Rights suggests that such prejudices can affect the adjudication of cases involving Muslims. It may be presumed that Poland is no exception to that, and this assumption was the starting (...) point for our empirical study. To date, there have been no studies on the perception of Muslims and Islam in the Polish legal system. This article presents the results of a qualitative thematic analysis of 57 judicial opinions issued by the common courts in Poland and published online, in which Islam or being Muslim was mentioned. The cases were categorised and texts of the judicial opinions closely analysed (with computer-assisted qualitative data analysis software) to identify recurring themes. The findings of this first exploratory study show that stereotypical representations and the “‘Othering” of Muslims do indeed occur in Polish courts, with some judges repeating Orientalist tropes that have become normalised in Polish society. (shrink)

Elimination of state laws that preempt local antismoking ordinances is a national health objective. However, the tobacco industry and its supporters have continued to pursue statelevel preemption of local tobacco control ordinances as part of an apparent strategy to avoid the difusion of grassroots antismoking initiatives. And, an increasing number of challenges to local ordinances by the tobacco industry and persons supported by the tobacco industry are being decided in state supreme courts and courts of appeals. The outcomes of seemingly (...) similar cases about the validity of local smoke-free air ordinances vary signifcantly by state. This paper examines the common and unique aspects of the decisions and the potential implications of court rulings on preemption for future state tobacco control eforts and achievement of national health objectives around the elimination of preemption. Using a search strategy developed for the Centers for Disease Control and Prevention's State Tobacco Activities Tracking and Evaluation System, cases where a state or federal appellate level court made a fnding on the validity of a local smoke-free air ordinance or regulation were identifed in 19 states. In contrast to previous studies, we found that cases in approximately half of states were decided for local governments. We also found that across the states, courts were considering similar factors in their decisions including the extent to which: the local government possessed the authority to pass the ordinance, the ordinance conficted with the state constitution, and state statutes preempt the ordinance. (shrink)

Despite governmental and private antismoking initiatives, tobacco smoking remains a significant public health and economic challenge. The Centers for Disease Control and Prevention estimates that for each year between 1997 and 2001, cigarette smoking and exposure to secondhand smoke caused approximately 438,000 U.S. residents to die prematurely, resulting in 5.5 million years of potential life lost, and in $92 billion dollars of lost productivity. Also, despite convincing scientific data that laws against indoor smoking protect people from the negative health effects (...) of cigarette smoke, not all states have afforded their residents this protection. As of July 2007, 16 states neither restricted nor banned indoor smoking in restaurants, private worksites, or government worksites, and many state statutes only required separate rooms for smokers rather than eliminating all smoking inside buildings. In several states, local governments have attempted to fill this gap by adopting their own antismoking measures. (shrink)

This chapter focuses on the theory surrounding judicial decision-making. The chapter concedes that if anyone is constrained in the reasons they should employ for decision and argument, it is judges. The restraint on judges is obvious in easy cases, where the existing law calls for straightforward answers; but it has been typically assumed that judges are substantially constrained even when the right result for a case is highly arguable. The chapter presents two challenges to the ideal decision-making theory in (...) the legal profession: the “reality” challenge and the “desirability” challenge. (shrink)

Prior to Citizen’s United, particular types of corporate spending for purposes of influencing US-election-outcomes were limited due to an inherent skepticism of corporate influence in American politics. It was presumed that where corporations accessed wealth and resources for purposes of electing candidates that best serve corporate interests, American politics would be corrupted—indeed: democracy that is bought and sold. In the US, the juridical is entirely systematized by the ethos of the legal profession: legalism. It is the way in which the (...) law is supposed to be reasoned upon, deliberated upon, and decided upon. Although the Majority in Citizens expressed its reversal of law that limits corporate influence in American politics in legalese—the terminology within the system of legalism, the conservative Majority took an opportunity to establish conservative ideology as law—an ideology that subscribes to the equivocation between corporations and individuals, and, corporate spending with protected free-speech. (shrink)

Ch. 1 defines activism as involving four judicial practices: refusing to take an attitude of deference for legislative or executive power or judgment; relaxing requirements for justiciability; breaking precedent; and loosely or controversially construing constitutions, statutes or precedents. I defend each element, through , in later chapters. I defend primarily in Ch. 2A-B, primarily in Ch. 2C, primarily in Ch. 3 and in Chs. 2 and 4. Ch. 1 concludes that - seem to have knowing change of the law (...) in common. Ch. 1 considers and rejects different definitions of activism. My definition explains what I call The Crossover Thesis, which says that two types of activism, and , are quite distinct, and what I call The Political Neutrality Thesis, which says activism and passivism are politically neutral in that neither is necessarily conservative or liberal, and neither is necessarily politically superior to the other. ;Ch. 2 defends activism against objections based on democracy by reconciling activism with democracy somewhat and by supporting some activism based on the Constitution's supreme legal authority. I give what I call The Ashwander Defense and the Carolene Defense of activism, which are named after famous judicial opinions I use to defend activism. ;Ch. 3 argues against stare decisis, which requires following precedent. The passivists' version of stare decisis is inadequately supported by arguments that stare decisis increases: the fairness of treating like cases alike; the predictability of the law; thereby the efficiency of judges in making decisions. ;Ch. 4 argues that courts should use due process more to support activism which clarifies the law. I show how much activism is justified by the vagueness doctrine, which constitutionally requires law's meaning to be reasonably accessible to ordinary people. ;Ch. 5 summarizes earlier chapters and shows how my defense of activism is restrained. (shrink)

In this revised and updated edition of a classic text, one of America's leading constitutional theorists presents a brief but well-balanced history of judicial review and summarizes the arguments both for and against judicial activism within the context of American democracy. Christopher Wolfe demonstrates how modern courts have used their power to create new "rights" with fateful political consequences and he challenges popular opinions held by many contemporary legal scholars. This is important reading for anyone interested in (...) the role of the judiciary within American politics. Praise for the first edition of Judicial Activism: "This is a splendid contribution to the literature, integrating for the first time between two covers an extensive debate, honestly and dispassionately presented, on the role of courts in American policy. —Stanley C. Brubaker, Colgate University. (shrink)

La doctrina establecida por la Corte Suprema de Justicia de la Argentina en relación a los crímenes de lesa humanidad cometidos durante la última dictadura militar, expresamente declaraba la obligación del Estado de investigar y juzgar a los responsables de su comisión. La Corte no sólo caracterizó dichos delitos, sino que también estableció que no eran susceptibles de amnistía, indulto, ni prescripción. Pero, en el año 2017 dictó el fallo “Muiña” donde, por voto mayoritario, decidió otorgarle el beneficio del “2 (...) por 1” a un condenado por dichos delitos. La consecuencia fue su inmediata libertad por el vencimiento de la condena. La respuesta de la sociedad fue clara. Con diversas manifestaciones, la sociedad civil, las instituciones y las personalidades públicas se declararon en contra de la sentencia. Más aún, del voto de los mismos jueces se observan expresiones que denotan un gran pesar a la hora de tomar la decisión. Más precisamente, sostenían estar ante un dilema. En este trabajo, lejos de realizar un análisis de la interpretación jurídica que se efectuó en la sentencia, se propone trabajar sobre el concepto de dilema y la posibilidad de aplicación en el presente caso. La finalidad concreta es indagar si se está ante un dilema y en su caso si los jueces utilizan este concepto como un arma argumentativa para lograr adhesión o compasión de la opinión pública. En este sentido, se comenzará relatando el marco jurídico del fallo, donde se describirá la historia judicial de Muiña y los argumentos dados por el voto mayoritario y el minoritario de la Corte. Luego, se realizará un análisis del concepto de dilema, para reconstruirlo sobre la base de dos grandes posturas: Una lógica conceptual y otra fenomenológica. Posteriormente, se realizará un examen de la dimensión institucional del derecho y la moralidad judicial, para - finalmente - poder intentar responder si se está efectivamente ante un dilema. (shrink)

This article refers to the issues associated with the crucial significance of the interpretation of tax law provisions made by administrative courts in the course of the judicial inspection of tax decisions, within the context of protecting the subjective rights of taxpayers. The analysis in that regard has been prepared based on the provisions of art. 153 of the Act of 25 July 2002 on Proceedings before Administrative Courts, which expresses the important rule of binding the court and the (...) administrative authority, whose act was the subject of an appeal, with a legal assessment and instructions regarding the further proceedings described in the decision of the administrative court. As a result of this rule, a decision of an administrative court exerts the results exceeding the scope of judicial administrative proceedings, while its effect also covers the future tax proceedings. If the legal assessment made by the court refers to the regulations that affect the subjective rights of a taxpayer, it means that the administrative court imposes the effects of “its” interpretation of those provisions on a tax authority. In turn, the tax authority is obliged to respect those rights in accordance with the opinions of the court, which usually affects the final resolution of a tax case. It should be borne in mind that a taxpayer, by submitting an appeal against a tax decision to an administrative court, demands not only an inspection of the acts of tax administration, but also - which should be emphasized - demands the execution of its rights, including its subjective rights. Therefore, we should not forget the crucial role of the administrative courts in the protection of the substantive rights of taxpayers. The instrument that allows the administrative courts to guard the subjective rights of taxpayers, consists in the procedural regulations included in the provisions on proceedings before administrative courts, and in particular art. 153 of the Act on Proceedings before Administrative Courts in Poland. (shrink)

Mitchel Lasser's Judicial Deliberations compares the argumentative practices of the French Cour de cassation, the US Supreme Court, and the European Court of Justice (ECJ), and examines how they achieve judicial legitimacy. In this review I firstly question the models of judicial legitimacy presented by Lasser. I believe that the French ‘institutional’ model relies far more on the interplay between the Cour de cassation and the legislature than on the system of selection of those who take part (...) in the judicial discourse or on their conception of law which would deny judicial decision a place among the sources of law. I also have doubts about the lack of institutional means of judicial control and the emphasis on ‘argumentative transparency’, which lies at the core of Lasser's presentation of the US system. Finally the ECJ, somewhat included rather as an afterthought in the book's central analysis, in my opinion faces rather different problems from those identified in the book. Secondly, I discuss a deeper problem of Judicial Deliberations: its lack of conceptual clarity and the rather scant evidence it provides for some of its bold claims. In conclusion I make the case for a ‘comparative jurisprudence’ approach, suggested some time ago by William Ewald, which in my view Judicial Deliberations follows only in name. (shrink)

Judges wield enormous power in modern society and it is not surprising that scholars have long been interested in how judges think. The purpose of this article is to examine how US judges reason on language issues. To understand how courts decide on comprehension of constitutional rights by speakers with Limited English Proficiency (LEP), I analyzed 460 judicial opinions on appeals from LEP speakers, issued between 2000 and 2020. Two findings merit particular attention. Firstly, the analysis revealed that (...) in 36% of the interrogations, LEP speakers were advised of their rights only in English. This means that two decades after the Executive Order 13166 (2000) _Improving Access to Services for Persons with Limited English Proficiency_, law enforcement still doesn’t have adequate resources to advise LEP speakers of their constitutional rights in their primary languages. Secondly, the analysis revealed that some courts treat second language proficiency as an all-or-none phenomenon. This approach results in linguistic discrimination against LEP speakers who cannot comprehend legal language but are denied the services of an interpreter because they can answer basic questions in English. I end the discusson with recommendations for best practices in delivery of constitutional rights. (shrink)

Legal reasoning requires identification through search of authoritative legal texts that apply to a given legal question. In this paper, using a network representation of US Supreme Court opinions that integrates citation connectivity and topical similarity, we model the activity of law search as an organizing principle in the evolution of the corpus of legal texts. The network model and probabilistic search behavior generates a Pagerank-style ranking of the texts that in turn gives rise to a natural geometry of (...) the opinion corpus. This enables us to then measure the ways in which new judicial opinions affect the topography of the network and its future evolution. While we deploy it here on the US Supreme Court opinion corpus, there are obvious extensions to large evolving bodies of legal text. The model is a proxy for the way in which new opinions influence the search behavior of litigants and judges and thus affect the law. This type of “legal search effect” is a new legal consequence of research practice that has not been previously identified in jurisprudential thought and has never before been subject to empirical analysis. We quantitatively estimate the extent of this effect and find significant relationships between search-related network structures and propensity of future citation. This finding indicates that “search influence” is a pathway through which judicial opinions can affect future legal development. (shrink)

This paper aims to shed light on the putative functions of placing images in judicial opinions from the judges’ perspective. Thus far, commentators have overlooked the functions that images play for judges when used in judicial opinions and consequently have failed to provide a thorough understanding of the process. To help fill this gap, Jerome Frank’s ideas on judging will be presented. The argument goes that using images in judicial opinions can be interpreted as (...) a way to enable the decision-making process to be, as far as possible, devoid of hypocrisy, closer to judicial candor and more open to scrutiny. This notion can be excavated from Frank’s works in light of the existential features of both passing judgments and articulating decision-making processes by and for judges themselves. As will be shown, Frank’s views on judicial decision-making are more original and enlightening than critics might suggest and they are particularly relevant when examining the use of images in judicial opinions from a judge’s perspective. (shrink)

In the course of his argument for a common law conception of Constitu- tional Bills of Rights and judicial review, Wil Waluchow claims that there is a principled distinction to be drawn between a community’s ‘opinions’ or ‘mere moral preferences’ and its ‘true’ or ‘authentic’ moral commitments. Moreover, he argues that it is possible for judges to identify a community’s authentic moral commitments and apply them to decide particular cases. If he is right, it is not the case (...) that judges, in making a decision about the application and scope of constitutional rights, are inevitably importing their own subjective moral standards into the decision. I analyze Waluchow’s use of the moral opinions -moral commitments distinction. I argue first that the distinction presupposes a descriptive methodology of constitutional interpretation. I suggest however, that the methodology of interpretation in Bills of Rights cases is constructive and involves substantive, ‘evaluative and justificatory’ reasoning by interpreters and judges. I then argue that the moral opinions-moral commitments distinction either cannot do the work that Waluchow’s argument requires, or, if it is modified to do the work, it becomes a substantive distinction. A substantive conception of authenticity creates a problem for Waluchow because it undermines his purely procedural account of democratic self-governance.Resumen:Wil Waluchow al desarrollar su argumento a favor de una concepción propia del common law para las constituciones y para el judicial review, sostiene que existe una distinción de principio entre las “opiniones” de la comunidad o sus “simples preferencias morales” y los compromisos morales “verdaderos” o “auténticos”. Además, sostiene que para los jueces es posible identificar los compromisos morales auténticos de una comunidad y aplicar los mismos en la decisión de casos concretos. Si tiene razón, entonces los jueces al decidir casos concretos sobre el alcance de los derechos constitucionales no canalizan sus propios estándares mora- les subjetivos a las decisiones. En este estudio analizo el uso que hace Waluchow de la distinción entre opiniones morales y compromisos morales. Argumento en primer término que la distinción presupone una metodología descriptiva de la interpretación constitucional, y sugiero que no obstante lo anterior, la metodología de interpretación de los derechos constitucionales es constructiva e implica por parte de los intérpretes y jueces un razonamiento “evaluativo y de justificación” sustantivo. Posteriormente argumento que la distinción entre opiniones morales y compromisos morales no tiene el alcance que pretende y requiere el trabajo de Waluchow y si se modifica, entonces se convierte en una distinción sustantiva. Una concepción sustantiva de autenticidad le genera un problema a Waluchow porque debilita su explicación puramente procedi- mental de un auto-gobierno democrático. (shrink)

This paper investigates the role of (DIS)RESPECT a value premise in two landmark civil rights cases given by the United States Supreme Court. It adopts a corpus-assisted approach whereby a keyword analysis and the analysis of key semantic domains are used to identify potential values relied upon by judges in their justifications. The two categories of NO RESPECT and RESPECTED have been selected and examined as one domain of (DIS)RESPECT. (DIS)RESPECT turns out to be the only value marked by strong (...) evaluative polarity and it is found in the majority, as well as in dissenting opinions. The analysis shows how the notion of (DIS)RESPECT has been integrated into the arguments of judges and it highlights the central importance of values and the related evaluative language for legal argumentation. (shrink)

This paper attempts to formalize the differences between two methods of analysis used by judicial opinions in common law jurisdictions to contradict holdings posited by earlier opinions: “disagreeing” with the holdings of the earlier opinions and “attributing” holdings to the prior opinions. The paper will demonstrate that it is necessary to model both methods of analysis differently to generate an accurate picture of the state of legal authority in hypothetical examples, as well as in an (...) example based on Barry Friedman’s analysis of the “stealth overruling” of Miranda v. Arizona through subsequent judicial interpretations. Because the question of whether “disagreement” and “attribution” need to be modeled separately relates to contradictions rather than to subtler interactions between holdings such as “distinguishing,” it can be answered using the simple technique of modeling holdings as propositional variables and evaluating the holdings using truth tables. (shrink)

Sitting at the nexus of unchanging constitutional rights, constantly evolving social norms, and tensions between federal and state justice systems, defamation law in the US is exceedingly complex. In this work, I focus on a single conceptual and practical problem amidst this network: the fact-opinion distinction. This distinction—developed largely as a result of US Supreme Court decisions _Gertz v. Robert Welch, Inc._ and _Milkovich v. Lorraine Journal Co._—states that, while opinions are protected under the First Amendment so long as (...) they do not imply “provably false” information, facts, if false, may always be actionable in a lawsuit for defamation. Thus, the judicial decision of whether an allegedly defamatory statement is fact or opinion is influential in determining whether a claim may move forward. In spite of the significance of this distinction, legal precedent and academic literature shows that there are no generally agreed upon characteristics to organize statements into these two categories. Using the framework of Appraisal Analysis (Martin and White, The Language of Evaluation: Appraisal in English, Palgrave Macmillan, London 2005), I examine a corpus of previously adjudicated defamatory language to answer the question: _how does expression of stance differ between judicially-determined statements of opinion and fact in defamation cases?_ This analysis reveals that judicially-determined opinions express more markers of attitude and expanding engagement than their factual counterparts. Ultimately, I argue that this research may be directly applied to the analysis of allegedly defamatory language in the US, and, in being so applied, may play a role in adding robustness to existing analytical procedures regarding the distinction between fact and opinion in defamation law in the US. (shrink)

Haines' work first appeared in 1914; this volume is a reprint of the enlarged second edition, which was judged at that time to be "clearly the most comprehensive survey of the origin and early growth of judicial review." In the second part, covering the period since the Civil War, Haines attempts an adequate rather than a complete quantitative study, including not only the relevant court decisions but also a survey of informed critical opinion concerning the powers of the Court (...) to rule on the constitutionality of legislation. In the final chapter he argues against the traditional doctrine that the courts do not control the legislature, but simply interpret the law. The study includes three lengthy, but not up-to-date, appendices. --L. S. F. (shrink)

It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able to grasp (...) its full linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making. (shrink)

_The Case of the Speluncean Explorers, _written in 1949 by Lon Fuller, is the most famous fictitious legal case of all time. Describing a case of trapped travellers who are forcd to cannibalize one of their team, it is used on courses in philosophy of law and Jurisprudence to show how their trial upon rescue touches on key concepts in philosophy and legal theory such as utilitarianism and naturalism. _The Case of the Speluncean Explorers: Nine New opinions_ includes a reprint (...) of Fuller's classic article and a much-needed revision of and addition to the five openings originally expressed in the case by the five Supreme Court Judges. Peter Suber carefully and clearly introduces students to the main themes of Fuller's article before introducing nine new opinions. These opinions include perspectives from communitarian, feminist, multicultural, postmodern and economic theories of law, updating Fuller's original case and bringing contemporary theories of law to bear on the five original opinions. Why read this book? One reason is to get beyond sloganeering about "judicial activism" and "activist judges". The book is an enjoyable and even-handed way to understand what the debate is about. It doesn't tell you what to think, but illustrates the contending positions and lets you think for yourself. It will show you how judges with different moral and political beliefs interpret written law, how they use precedents, how they conceive the proper role of judges, how they conceive the relationship between law and morality, and how they defend their judicial practices against criticism. It anchors all of this in a Supreme Court hearing of a gripping, concrete case on which real people disagree. The book uses no jargon and assumes no prior knowledge of law or legal philosophy. (shrink)

It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able to grasp (...) its full linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making. (shrink)

According to their standardized treatment within the Indian legal tradition, ordeals are supposed to occur, under certain circumstances, when one person formally accused another of some crime in a court of law. While not disputing the general accuracy of this standardized treatment of ordeals, this article argues for the widespread practice in pre-modern India of another—hitherto unrecognized—type of ordeal that fails to fit this basic scenario, for such ordeals would occur when someone was widely believed to have committed some wrongdoing, (...) but was not forced to stand trial in a formal judicial court. In order to prove his innocence and, thereby, mitigate the damage caused by his suspected guilt, such an individual could—and sometimes did—arrange for himself to undergo an ordeal at his own expense and independently of any formal plaint. After establishing the practice of ordeals of this sort in pre-modern India, this article then examines some possible explanations for their development. (shrink)

Like Hobbes and unlike Locke, Kant denied the possibility of a right to rebellion. But unlike Hobbes, Kant did not argue for a unitary head of state in whom legislative, judicial, and executive powers are inseparable, and thus did not believe that the executive power in a state to whom must be conceded a monopoly of coercion also defines all rights in the state. Instead, Kant insisted upon the necessary division of authority in a state into a separate legislature, (...) executive, and judiciary, and thus, while rejecting the idea that a people could ever rightfully overthrow their entire constitution or government, he could and did hold that a people represented by a parliament have genuine rights against the executive power within their state even though that executive power properly has a monopoly on the coercive enforcement of the parliament's laws. (shrink)

Torture used to be incompatible with American values. Our Bill of Rights forbids cruel and unusual punishment, and that has come to include all forms of corporal punishment except prison and death by methods purported to be painless. Americans and our government have historically condemned states that torture; we have granted asylum or refuge to those who fear it. The Senate ratified the Convention Against Torture, Congress enacted antitorture legislation, and judicial opinions spoke of "the dastardly and totally (...) inhuman act of torture.” Then came September 11. (shrink)

In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the (...) values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government.The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal. (shrink)

Algorithmic decision-making based on profiling may significantly affect people’s destinies. As a rule, however, explanations for such decisions are lacking. What are the chances for a “right to explanation” to be realized soon? After an exploration of the regulatory efforts that are currently pushing for such a right it is concluded that, at the moment, the GDPR stands out as the main force to be reckoned with. In cases of profiling, data subjects are granted the right to receive meaningful information (...) about the functionality of the system in use; for fully automated profiling decisions even an explanation has to be given. However, the trade secrets and intellectual property rights (IPRs) involved must be respected as well. These conflicting rights must be balanced against each other; what will be the outcome? Looking back to 1995, when a similar kind of balancing had been decreed in Europe concerning the right of access (DPD), Wachter et al. (2017) find that according to judicial opinion only generalities of the algorithm had to be disclosed, not specific details. This hardly augurs well for a future right of access let alone to explanation. Thereupon the landscape of IPRs for machine learning (ML) is analysed. Spurred by new USPTO guidelines that clarify when inventions are eligible to be patented, the number of patent applications in the US related to ML in general, and to “predictive analytics” in particular, has soared since 2010—and Europe has followed. I conjecture that in such a climate of intensified protection of intellectual property, companies may legitimately claim that the more their application combines several ML assets that, in addition, are useful in multiple sectors, the more value is at stake when confronted with a call for explanation by data subjects. Consequently, the right to explanation may be severely crippled. (shrink)

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law... abridging the freedom of speech." This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jiirgen Habermas' theory of communicative action can serve as the basis (...) for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a coherent justification for the freedom of speech. Habermas' theory takes as its point of departure the speech act theory developed through contemporary analytic philosophy and linguistics. The central theme of speech act theory is that speech is action; communication coordinates individual behavior through achieving rational understanding. An important corollary is the proposition that communication is intersubjective; speech acts involve both speakers and listeners. In addition, the theory of communicative action makes a distinction between communicative action-oriented to the coordination of behavior through rational agreement-and strategic behavior-the use of speech to manipulate, coerce, or deceive. I argue that a theory of free speech can incorporate this distinction to mark the boundaries of the right to free speech: freedom of speech is freedom to engage in communicative action, not strategic action. Another component of Habermas' theory is the ideal speech situation, in which rational agreement may be reached because distorting factors are excluded; this ideal situation serves as the basis of a principle of equality of communicative opportunity that can give the freedom of speech its fundamental content. Habermas' theory of communicative action provides the basis for my reinterpretation of the first amendment freedom of speech as the freedom of communicative action. This Article has two aims. My first aim is to develop a theory of the meaning of the first amendment from the theory of communicative action. In pursuit of this first goal, the Article assumes a perspective that is internal to the practice of American constitutional law. I argue that Habermas' theory has substantial power to explain and justify first amendment doctrine. Indeed, it is my view that a theory of freedom of speech based on the theory of communicative action, more so than any other theory, provides the best justification for the first amendment while simultaneously providing the best fit with the existing case law. In addition to the development of a theory of the first amendment, this Article has a second aim: From the point of view of the practice of social theory, the current Article is a "thought experiment" designed to test and elaborate Habermas' theory of communicative action. I explore various objections to and ambiguities in the theory of communicative action by taking up the attitude of a participant in the practice of legal interpretation who adopts the theory of communicative action as a practical principle for institutionalization of discourse in the public sphere. It is my hope that this thought experiment will have value in the enterprise of understanding, clarifying, and extending the theory of communicative action. For example, this Article responds to the suggestion that the theory of communicative action should be reformulated as a theory of institutionalized discourse "in the public sphere of a participatory democracy." Part II of this Article begins with a hermeneutic approach to the problem of interpreting the first amendment. Part III explores and criticizes existing theories of the freedom of expression. The theory of communicative action is explicated in Part IV; the implications of that theory for the freedom of speech are explored in Part V. Finally, Part VI applies the results to specific problems in first amendment doctrine, and Part VII draws some conclusions about the implications of this exercise for both first amendment doctrine and the theory of communicative action. (shrink)

The legal literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. However, this test is infrequently mentioned by the courts and almost never explains their decisions. Instead, they apply, explicitly or implicitly, various justice-based standards that take into account the rights and relationships among the parties. This is true even for the two judges most closely identified with the aggregate-risk-utility test: Learned Hand and Richard Posner. During the five decades that Hand served (...) as a federal judge, he mentioned the test in only eleven opinions, between 1938 and 1949, and in none of those opinions did he actually apply the test to resolve the negligence issue. In his last reference to the test, in 1949, he essentially abandoned it. None of his fellow circuit judges ever mentioned the test. Posner claims that the Hand formula expresses an economic efficiency interpretation of negligence that has long been implicit in judicial opinions. However, Posner’s arguments are based on speculative and implausible assumptions, overbroad generalizations, selective quotations, and superficial descriptions of cases that misstate or ignore facts, language, rationales, and holdings that are inconsistent with his argument. The same flaws are apparent in Posner’s attempts to apply the Hand formula in his own judicial opinions. Neither he nor his like-minded colleague, Frank Easterbrook, has been able to employ the Hand formula to resolve the negligence issue in any case, and none of their fellow circuit judges has attempted to do so. (shrink)

This article reviews the history of the debate over use of biospecimens in research, the legal and ethical arguments that have been presented both in support of and in opposition to such use, court cases and judicial opinions involving disputes between specimen contributors, researchers, and institutions, and public attitudes regarding the use of biospecimens in research. The paper argues that proposed changes to the Common Rule are inadequate to resolve the legal and ethical concerns that have been raised (...) with respect to the use of biospecimens. It argues that there is a need to distinguish between the dual roles — subject and donor — played by contributors of biospecimens. (shrink)

In 1935, when the U.S. Supreme Court’s new building opened and displayed the phrase “Equal Justice Under Law,” racial segregation was commonplace, as were barriers limiting opportunities for men and women of all colors to participate in economic and political life. The justices on the Court and the lawyers appearing before them reflected those facts; almost all were white men. Today, the Supreme Court’s inscription has become its motto, read as if it always referenced an understanding of equality that has (...) become central to the identity and the legitimacy of courts. The judiciary “looks” somewhat different than it did and, in a sense, has become more “representative” of the range of people appearing in courts. Given the role that courts had played in sustaining discrimination, the impression that courts ought to welcome everyone is a major achievement. Yet, to assess the impact of new judicial demographics requires analysis of other major alterations in U.S. courts—the influx of diverse litigants newly entitled to pursue legal claims; the economic barriers facing many claimants; the emergence of judiciaries as agency-like promoters of agendas; and the displacement of public adjudication through the privatization of dispute resolution. Studies of women as judges focus mostly on their rulings, but probing the “difference that difference makes” requires looking beyond judicial opinions. Courts in the United States have developed structural capacities to propose rules and legislation, create education programs, commission research and task forces, and lobby for resources. When women of all colors and men of color became lawyers and judges, they created affinity organizations and pressed courts to research court-based bias and to revise rules of ethics, doctrine, and practice. Those changes are part of the impact of diversification within the legal profession, as is the backlash against affirmative efforts to reform practices. Another difference of the last decades is that new rights have brought into court many claimants with limited means. Participatory participation remains elusive, while the “justice gap” is pervasive. Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed assessments as income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality. In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public. Through doctrine and rules, U.S. courts have shifted their own practices as well as enforced mandates imposed on consumers and employers that push them out of court and out of class or joint actions. In sum, the new faces on the bench ought not to obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice. (shrink)

This paper approaches legal argumentation from a rhetorical perspective. It discusses the nature of the audiences that are targeted by judges in the legal process. Judicial opinions reach diverse groups of people with very different attitudes and expectations: other judges, lawyers, litigants, concerned citizens, etc. One important way in which these groups differ is that some of them are more likely to be persuaded by legalistic, precedent or statute-based arguments, while others expect judges to decide on grounds of (...) justice or equity. So, judges face the challenge of determining whether they should select particular groups for special attention, or whether they have alternative rhetorical means to approach the problem of audience diversity. One strategy that is likely to be recommended by rhetorical scholars is that judges should not try to accommodate the various preferences of their actual readership, but that they should rather invoke an idealized audience or some version of Chaïm Perelman’s universal audience. However, the paper tries to show that the universal audience is of limited value for a discussion about how judges ought to proceed in the face of audience diversity. In particular, the idea of a universal audience does not help judges to make the choice between a legalistic or an equity-based approach to legal decision-making. By showing that this is so, the paper also raises doubts about the common thought that to invoke the universal audience in law is to appeal to natural law. (shrink)

Interpreting the content of the law is not limited to what a relevant lawmaker utters. This paper examines the extent to which implied and implicit content is part of the law, and specifically whether the Gricean concept of conversational implicature is relevant in determining the content of law. Recent work has focused on how this question relates to acts of legislation. This paper extends the analysis to case law and departs from the literature on several key issues. The paper's argument (...) is based upon two points: Precedent-setting judicial opinions may consist of multiple conversations, of which some entail opposing implicata, and if a particular precedent-setting judicial opinion consists of multiple conversations, of which some entail opposing implicata, then no meaningful conversational implicatum is part of the content of that particular precedent-setting opinion. Nevertheless, the paper's conclusion leaves open the prospect of gleaning something in between conversational implicature and what is literally said, namely, conversational impliciture. (shrink)

This book studies the US Supreme Court and its current common law approach to judicial decision making from a national and transnational perspective. The Supreme Court's approach appears detached from and inconsistent with the underlying fundamental principles that ought to guide it, which often leads to unfair and inefficient results. This book suggests the adoption of a judicial decision-making model that proceeds from principles and rules, using them as premises for developing consistent unitary theories to meet current social (...) conditions. This model requires that judicial opinions be informed by a wide range of considerations, including established legal standards, the insights derived from deductive and inductive reasoning, the lessons learned from history and custom, and an examination of the social and economic consequences of the decision. (shrink)

God presented each of us with the gift of human life, for which we each have a duty of stewardship. The complementary principles of totality and integrity provide moral guidance for decisions on whether specific acts are consistent with this obligation. Totality directs that anatomical completeness must not be sacrificed without proportional justification. Integrity focuses on maintaining basic human capacities and provides a hierarchical ordering of higher functions over lower functions for use in decision making. The decisions of secular American (...) courts rely heavily on statutory authority and case precedent. This essay explores whether the moral principle of totality and integrity is reflected in judicial opinions. The first part examines judicial decisions in cases in which the plaintiff’s desired outcome was consistent with the principle of totality and integrity. The second part analyzes judicial decisions in which the desired outcome was not consistent with this moral principle. National Catholic Bioethics Quarterly 12.1 (Spring 2012): 43–54. (shrink)

In this article, we extend the research on the public interest to non-audit engagements performed by accounting firms and public accountants. Our thesis is that non-audit engagements, as private goods, require a distinct approach to the public interest than auditing. We suggest that a public value perspective can be used conceptually to provide substantial criteria for designing non-audit engagements conducive to public value creation and greater accountability. We illustrate the applicability and consequences of a public value perspective by analyzing and (...) contrasting the decision of two judicial opinions deciding whether Deloitte and the lead partner of a consulting engagement failed to act in the public interest in engineering the sale of collapsed British carmaker MG Rover. We advocate for a significant change in ethical codes of conduct by defining public interest obligations, not only in terms of professional attributes, but also in terms of outcomes. Our approach also suggests a requirement regarding planning a non-audit engagement, including establishing a public value proposition detailing the planned nature of the engagement, and extent of the assessment of the intended public value creation. We discuss the aspirational function of codes of conduct to provide accountability other than in terms of technical output, and to maintain the legitimacy and purpose of the profession. (shrink)

Public health legal preparedness begins with effective legal authorities, and law provides a key foundation for public health practice in the United States. Laws not only create public health agencies and fund them, but also authorize and impose duties upon government to protect the public's health while preserving individual liberties. As a result, law is an essential tool in public health practice and is one element of public health infrastructure, as it defines the systems and relationships within which public health (...) practitioners operate.For purposes of this paper, law can be defined as a rule of conduct derived from federal or state constitutions, statutes, local laws, judicial opinions, administrative rules and regulations, international codes, or other pronouncements by entities authorized to prescribe conduct in a legally binding manner. Public health legal preparedness, a subset of public health preparedness, is defined as attainment of legal benchmarks within a public health system. (shrink)