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Judicial review of legislation is a controversial practice. Though it is accepted as constitutionally authorized in the United States (and in Canada, South Africa, and many other democracies), and though it is strongly defended by many scholars, it has been criticized by a small number of law professors (Mark Tushnet, for example, and Larry Kramer, and myself) as undemocratic and - from the point of view of political theory - illegitimate. This article seeks to state the case against judicial review as clearly and as forcefully as possible, in a way that is uncluttered by discussions of particular cases in which judicial review has been exercised, and in a way that is uncluttered also by historical discussion of its emergence and use. The article criticizes judicial review of legislation on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by legislatures. Secondly, it argues that quite apart from the outcomes that it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument is much less so. Both arguments state the case against judicial review clearly and correct a number of misconceptions. The case against judicial review is not absolute or unconditional. In this Article it is premised on a number of conditions, which include the conditions that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even though they may disagree about what rights we have). Where these conditions fail, it is harder to make the case against judicial review. And the Article ends by considering the consequences of various kinds of failure. My hope is that this Article can serve as a clear focus for the renewed discussion of the merits of judicial review of legislation which we see both in the United States and in other countries around the world, and a clear target for defenses of judicial review to respond to. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper considers the evidence that J.S. Mill gave to the Royal Commission on the Contagious Diseases Acts in 1871, and the compatibility of his opposition to the legislative scheme for supervising the health of prostitutes with the general principles set out in his famous essay ON LIBERTY. Mill joined a numer of prominent feminists in opposing the Acts. He argued that--even though the Acts aimed to prevent harm--they had a lop-sided impact on liberty, because they compromised the liberty of women prostitutes and not the liberty of their male clients. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

What exactly does it mean to describe a people as the "indigenous" inhabitants of a land and why is indigeneity important? There are two possible ways of defining "indigeneity": (a) indigenous peoples are the descendants of the first human inhabitants of a land; and (b) indigenous peoples are the descendants of those who inhabited the land at the time of European colonization. Corresponding to these definitions, we find arguments for indigenous rights based on (a) a Principle of First Occupancy (PFO), which gives moral recognition to the fact that a people have taken possession of land without disturbing any other occupants; and (b) a Principle of Established Order (PEO), i.e. a conservative principle that commands us (and should have commanded the colonizers) not to disturb established arrangements. Often there is confusion as to which of these is meant when theorists of indigeneity talk about "an indigenous people's original occupancy of a territory." And once we distinguish the two principles, we begin to see that they have been adopted opportunistically and carelessly by the First Peoples' movements. PEO might be used to condemn colonial invasion as disruptive of an existing indigenous order; but - as a conservative principle - it cannot be used now to justify any sort of reversion to the status quo ante. The conservative protection that PEO offered to the status quo in (say) 1840, it now offers to the status quo in 2002. It condemns historic injustice, but it blocks radically disruptive remedies. PFO seems more promising as a basis for radical remedies, but it is a difficult principle to apply, inasmuch as it makes tremendous demands on our historical knowledge, and it assumes lack of conflict and conquest among so-called indigenous peoples. In any case, PFO is problematic in ways that theorists of property have understood for a long time. It legitimizes occupancy which is not disruptive of anyone else's occupancy; but it puts too much weight on history and it is insufficiently sensitive to subsequent changes in circumstances and to the conditions that face us today. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

This paper explores the possibility that the principle of basic equality might be explicated by reference to the idea that humans constitute a "single-status" community. It explores some difficulties with the idea of status in its original legal habitat, but concludes that it is a promising vehicle for expressing ideas about moral equality. [ABSTRACT FROM AUTHOR]

This paper discusses the absence of New Testament references in Locke’s TWO TREATISES. (1) It considers Locke’s relation to Filmer and attacks interpretations which see Locke as producing nothing but a political pamphlet. (2) It examines Locke’s interpretation of ROMANS 13: 1-5, and argues that Locke does not read this as a general support for political authority (let alone slavery). (3) It considers the use of Christian material in Locke’s writing on toleration, and abandons positions previously held by this paper’s author. But (4) it does not resolve the mystery about the absence of New Testament references in the TWO TREATISES [ABSTRACT FROM AUTHOR]