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Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on 'outcome reasons,'justifications that rely on the theorist's beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called 'canonical cases' argument, which evaluates positions in normative constitutional theory on the basis of their counterfactual implications for a handful of prior decisions of the Supreme Court. Among the many problems with 'outcome reductionism' (exclusive reliance on outcome reasons) is the reality that none of the fundamental and feasible options for normative constitutional theory can guarantee outcomes that that most citizens would find acceptable, much less optimal. Living constitutionalism produces constitutional outcomes that reflect the moral values and political ideology of Supreme Court Justices, but over the long run there is no guarantee that the Justices will do what any individual believes is required by justice. Decades ago, the Justices established a constitutional right to abortion, but recently they reversed course. Dramatic changes in constitutional law are inevitable given that the Justices are selected by the President and Congress, institutions that will change their political makeup in unpredictable ways over time. Outcome reductionism is not a sensible method for normative constitutional theory, but there is a better approach. Outcome reasons can be supplemented by process reasons such as legitimacy, the rule of law, and institutional capacities. The way forward for constitutional theory involves a holistic assessment of both outcome reasons and process reasons via the method of reflective equilibrium. The way forward requires a frank acknowledgement of the consequences of deep and persistent disagreement about fundamental questions concerning justice and the common good. And therefore, the way forward will require an acknowledgement that a legitimate constitutional order will require compromise., TNTRODUCTION 915 I. OUTCOME UNCERTAINTY AND THE THREE FUNDAMENTAL AND FEASIBLE OPTIONS 921 II. OUTCOME REASONS AND PROCESS REASONS IN CONSTITUTIONAL THEORY 931 A. The Distinction Between Outcome Reasons and [...]

This paper explores the different ways in which ideas from moral and political philosophy underpin the development of the law. The shape of the substantive law can be seen to reflect assumptions and choices about core philosophical notions such as the moral obligation of one person to another, the attribution of responsibility for conduct and the nature of the relationship between the individual and the state. And the task of adjudication often calls for the exercise of moral judgement, either explicitly or implicitly. It follows, I contend, that lawyers need to develop the capacity to think philosophically about law. This means having sufficient philosophical awareness, understanding and fluency to engage with the ideas which are in play. Building that capacity should be one of the goals of legal education., I Introduction II The Philosophical Content of Law III Explicit Philosophy IV Criminal Law V Political Philosophy in Play VI Thinking Like a Philosopher VII Philosophical Self-Awareness VIII What Does [...]

This Feature provides the first full-length treatment of practice-based constitutional theories, which include some of the most important theories advanced in modern scholarship. Practice-based constitutional theories come in originalist and nonoriginalist--as well as conservative and progressive--varieties, and they assert that a constitutional theory should generally conform to our social practices about law. If, for example, it is part of our social practices for courts to apply a robust theory of stare decisis, then a constitutional theory that would require a less deferential theory of stare decisis is a less persuasive theory. Practice-based constitutional theorists would usually see it as a defect if a theory required a significant change in our social practices, such as overruling large swathes of landmark precedents. But why should we care whether a constitutional theory conforms to our social practices? That normative question requires a normative answer, yet there has been very little scholarship systematically analyzing the justifications often given by practice-based theorists for conforming constitutional theories to our social practices. This Feature identifies and examines the primary justifications offered for practice-based constitutional theories: legal positivism, reflective equilibrium, and the stability that comes from an overlapping consensus. In doing so, it also provides the most in-depth analysis of the nature of practice-based constitutional theories to date. The justifications usually offered by practice-based theorists reflect the influence of H.L.A. Hart and John Rawls on American constitutional theory. Although each justification is sophisticated, none can bear the normative weight that would justify conforming constitutional theories to our social practices. A constitutional theory cannot ignore our social practices, but it is the theory that can justify those practices, not the other way around., FEATURE CONTENTS INTRODUCTION 570 I. AN OVERVIEW OF PRACTICE-BASED CONSTITUTIONAL THEORIES 577 A. Two Components of Constitutional Theories 579 B. Defining Practice-Based Constitutional Theories 582 1. Examples 584 2. The [...]

Lawyer organizations in the United States perform a range of functions. Some are essentially social clubs that provide networking opportunities for lawyers. Others help their members stay up to date [...]

I. Introduction The Buddha presents his teachings as a path. First of all, he offers a diagnosis of a problem. This is the problem of unsatisfactoriness or suffering (duhkha). We [...]

Opposition to collective action on climate change takes at least two forms. Some people deny that climate change is occurring or that it is due to human activity. Others maintain that, even if climate change is occurring, we have no duty to do anything about it because our efforts would be futile. This article rebuts the latter line of argument. I argue that: (1) everyone has a duty to do their share for the global common good, which includes doing one's part to combat climate change; (2) the idea that taking action against climate change is futile should be treated with caution, because sometimes actions may seem to make no difference to climate change, when really they do; (3) in any event, the duty to do one's share to combat climate change still applies, even if it is ultimately futile; and (4) this is because not doing one's share for the common good harms oneself, regardless of whether it makes any difference to the wider outcome., I INTRODUCTION 'Yes, but what is one to do?' people often ask in genuine perplexity. 'If everyone would stand out it would be something, but by myself, I shall only [...]

Abstract The status of the principle of contractual interpretation enunciated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW(1982) 149 CLR 337 is uncertain. That [...]

'How to make the perfect citizen?' This has been one of the questions driving the construction of the Chinese Social Credit System: a technology-driven project that aims to assess, evaluate, and steer the behavior of Chinese citizens. After presenting social credit systems in China's public and private sectors (Part II), the Article provides normative standards to distinguish the Chinese system from comparable systems in liberal democracies (Part III). It then discusses the concept of civic virtue, as implemented by the Social Credit. System, claiming that it creates a new form of governance, 'cybernetic citizenship,' which fundamentally changes the essence of citizenship and the political role of the state (Part IV). On the whole, the Article demonstrates how the Chinese Social Credit System redefines the institution of citizenship and warns against similar patterns that are mushrooming in liberal democracies., TABLE OF CONTENTS I. INTRODUCTION 1088 II. SOCIAL CREDIT SYSTEMS IN CHINA 1091 III. CHINA AND LIBERAL DEMOCRACIES 1101 IV. CIVIC VIRTUE 1107 A. Instrumentalization and Standardization 1109 B. Normative [...]

I aim in this paper to provide a defense of one way to look at what should be regulated in the marketplace. In particular, I discuss what should be tolerated and argue against corporate welfare. I begin by endorsing John Stuart Mill's harm principle as a normative principle of toleration. I label as 'market libertarianism ' the strict commitment to the harm principle when considering the regulatory structure of markets and juxtapose this concept against promotionism, the view that endorses government interference to promote business interests. I next discuss the widespread use of promotionist policies, arguing against them and instead for market libertarianism. I also consider critiques of my view, recognizing that one of my responses may leave some thinking the paper is a reductio of the market libertarian view because of the slow-growth state it endorses. Others will recognize it as a view promoted by some of the U.S. founding fathers and find it attractive in its own right., TABLE OF CONTENTS INTRODUCTION 788 I. MOTIVATING THE VIEW AND CLEARING THE PATH 790 II. MARKET LIBERTARIANISM: MORAL COMMITMENT TO THE STRICT VERSION OF THE HARM PRINCIPLE 792 III. PROMOTIONISM: [...]

This article examines the normative weight of 'certainty' as a legitimate end in private law theory and adjudication. Claims of uncertainty tend to neglect or ignore a simple proposition: namely, that the same criticism could equally be levelled against many established jural concepts, and yet it is not. This article aims to demonstrate that criticism of jural concepts (principles, application criteria, etc) as too uncertain or vague is often selectively made. In many instances, the law, given its complex nature and society's expectations of what it is meant to deliver, cannot avoid resort to concepts whose meanings are unfixed and whose applications leave considerable scope for expert judgement. This article argues that courts and commentators who rely on uncertainty arguments must reflect more critically on what 'uncertainty' means, what 'too much' uncertainty is, and whether 'certainty' is a feasible juristic goal in the relevant context. The article concludes by offering some observations about the persuasive force of arguments that are directed at the legitimacy and functionality of open-textured legal concepts. It stresses that the critical issue in many instances of putative uncertainty is a failure by courts and jurists to settle upon an agreed normative grounding for the given legal concept., CONTENTS I Introduction II Certainty in Law in General A Examples of Uncertainty Arguments B Flexibility in the Law as a Desirable Quality III General Concepts in Private Law IV [...]

I. INTRODUCTION Lee Strang's Originalism's Promise: A Natural Law Account of the American Constitution (1) weaves together each of the major issues of constitutional theory into a nearly-seamless garment. He [...]

La nouvelle revue Communitas a placé les idées de 'communauté' et d''esprit de communion' au centre de son projet. Ce choix éditorial est en résonance avec l'aspiration communautaire qui se constate dans la culture populaire de même qu'avec l'intérêt croissant de la culture savan te pour Vin terdisciplinarité, voire la transdisciplinarité. Ces sensibilités culturelles peuvent se comprendre comme des réactions dialectiques à la fatigue existentielle et à l'ennui intellectuel causés par l'avancée dans l'hypermodernité sociale, juridique et scientifique. Les chercheurs 'droit et société' ont eux-mêmes contribué à la modernisation du droit et à l'engagement de la science juridique dans la voie de l'expertise technique. La critique actuelle de la modernité les invite désormais à concevoir le droit dans une optique communautaire et conviviale, en communion d'esprit avec tous les in tellectuels qui réfléchissent aux problèmes contemporains de la normativité. The new academie journal Communitas places ideas of community and the spirit of communion at the centre of its focus. This editorial line resonates both with the community aspirations that can be seen in popular culture and the growing scholarly interest in interdisciplinarity and crossdisciplinarity that can be seen in academic culture. This cultured interest in community can be understood as a rationed response to the existential fatigue and intellectual boredom caused by social, legal and scientific hypermodernity. Yet 'law and society' researchers themselves have contributed to the modernization of the law and to the commitment of legal science to technical expertise. The current critique of modernity now invites these researchers, and all who reflect on con temporary issues of normativity, to conceive of the law from a perspective of community and neighbourly relations. La nueva revista Communitas ha situado las ideas de la 'comunidad' y de 'espíritu de communion' en el centro de su proyecto. Esta opción editorial está en sintonía con la aspiración comunitaria que se puede constatar en la cultura popular, e igualmente con el creciente interés de la cultura intelectual por la interdisciplinariedad e incluso por la transdisciplinariedad. Estas susceptibilidades culturales pueden considerarse como reacciones dialécticas al cansancio existencial y al hastío intelectual causados por el avance en la hipermodernidad social, jurídica y científica. Los propios investigadores en 'derecho y sociedad' han contribuido a la modernización del derecho y al compromiso de la ciencia jurídica en la senda de la experticia técnica. La crítica actual de la modernidad los invita a concebir el derecho desde una óptica comunitaria y convivial, en comunión de espíritu con todos los intelectuales que reflexionan sobre los problemas contemporáneos de la normatividad., 1 La fatigue existentielle : éprouver et esquiver les coûts de la modernité sociale et juridique 2 L'ennui intellectuel: éprouver et esquiver les coûts de la modernité scientifique 3 Droit [...]

Law and Legitimacy in the Supreme Court by Professor Richard Fallon explores the relationship between normative legitimacy and the Supreme Court's role in constitutional interpretation and construction. This essay interrogates Fallon's ideas in the context of the great debate between originalism and living constitutionalism via the development of the themes. The first theme focuses on the relationship between Fallon's views and the originalist claim that constitutional interpretation and construction should be constrained by the original public meaning of the constitutional text. The second theme focuses on Fallon s development of the idea of reflective equilibrium as a method for constitutional theory and practice. The third theme focuses on the structure of normative constitutional legitimacy, contrasting Fallon's focus on the substantive justice of constitutional norms with an alternative approach that conceptualizes constitutional legitimacy as a multidimensional process value. The essay begins and ends with praise for Law and Legitimacy in the Supreme Court: Fallon's book is important, wide-ranging, and deep; it is essential reading for constitutional scholars., TABLE OF CONTENTS INTRODUCTION 289 I. FIRST THEME: CONSTRAINT BY THE MEANING OF THE CONSTITUTIONAL TEXT 290 A. A Short Introduction to Originalism and Living Constitutionalism 290 1. Public Meaning [...]

Rudiger Wolfrum of the Max Planck Foundation for International Peace and the Rule of Law, and discussant Edith Brown Weiss of Georgetown University Law Center, provided the Annual Hudson Medal [...]

The right to access to justice is a global issue--both theoretically and practically. From a theoretical perspective, the right to access to justice is a central component of the web [...]

Critics have long attacked popular constitutionalists for offering few clues about how their theory might work in practice--especially inside the courts. These critics are right. Popular constitutionalism--as a matter of both theory and practice--remains a work in progress. In this Article, I take up the challenge of developing an account of (what I call) popular constitutional argument. Briefly stated, popular constitutional argument is a form of argument that draws on the American people's considered judgments as a source of constitutional authority--akin to traditional sources like text, history, structure, and doctrine. Turning to constitutional theory, I situate popular constitutional argument within contemporary debates over judicial restraint, living constitutionalism, popular sovereignty theory, and originalism. And turning to constitutional practice, I offer the interpreter a concrete framework for crafting popular constitutional arguments--cataloguing the various indicators of public opinion that have played a role in recent Supreme Court decisions. These indicators include measures associated with the president, Congress, state and local governments, the American people's actions and traditions, and public opinion polls. Throughout, I use illustrative examples to show the various ways in which popular constitutional argument already operates at the Supreme Court--appealing to jurists from across the ideological spectrum. While this Article begins to explore how popular constitutionalism might operate inside the courts, much work remains., INTRODUCTION 74 I. POPULAR CONSTITUTIONALISM AND ITS CRITICS (AND THERE ARE MANY!) 80 A. The Varieties of Popular Constitutionalism 81 B. Popular Constitutionalism's Critics 84 C. The Value of Popular [...]

Policy Externalism, DANIEL DRUCKER This paper develops and argues for a kind of externalism about certain kinds of nondoxastic attitudes that the author calls policy externalism. Policy externalism about a [...]

1. Introduction What I will be referring to as the normative view in contemporary African discourse on personhood has received substantial treatment and is beginning to exhibit the sort of [...]

The Supreme Court, in the 2016 case Spokeo, Inc. v. Robins, announced a framework for determining whether a plaintiff had alleged an injury that would permit entry into federal court. The Court indicated that a plaintiff, in order to have constitutional standing, needed to suffer harm that was 'concrete' or 'real.' In explaining how courts could ascertain whether an alleged harm was concrete, the Court created a category of 'intangible' harm subject to a distinctive, and arguably more demanding, concreteness inquiry than 'tangible' harm, a category that seemingly includes only physical or economic harm. In particular, Spokeo directed courts to inquire into whether an intangible harm bears a sufficiently close relationship to a historically recognized cause of action and into whether such a harm has been elevated by congressional action to the level of cognizability. Since Spokeo, federal courts have wrestled with how to operationalize the Supreme Court's statements on intangible harm and standing. Beneath the growing body of doctrine lie fundamental questions about which values are at stake in categorizing harm into tangible and intangible varieties; whether the advancement of these values is justified; and whether, if so, this advancement is best accomplished through the conceptual tools that federal courts have applied to the task. This Article investigates and challenges the principles underlying the categorizations of harm outlined in Spokeo, particularly the distinction between tangible and intangible harm. This Article argues that this distinction, and the Spokeo Court's emphasis on the 'concreteness' of harm more broadly, reflect an effort to identify a set of uncontroversially pressing human interests that would justify access to judicial proceedings. These interests are often conceptualized in terms of those commensurable with money, quantifiable, or susceptible to evidentiary proof. Yet this approach invites courts to make contestable normative judgments about essential human interests in a way that risks undermining judicial legitimacy, and it obscures the internal complexity and contextual specificity of physical and economic harm. For example, economic loss, as well as pain and suffering resulting from physical harm, are treated as intangible in certain legal contexts, and the damage resulting from economic and physical harm cannot always be readily proven or valued at a given point in time. The Supreme Court's emphasis on concreteness and its invocation of tangibility, this Article contends, are not needed in order to achieve a nuanced balance between competing features of standing doctrine: concerns about the separation of powers and the efficient administration of justice, on the one hand, and concerns about access to the federal courts and judicial legitimacy, on the other. Rather, courts should eschew concreteness as a factor in the standing inquiry independently of whether harm is adequately particularized. Moreover, particularity can fruitfully be understood, in statutory cases, in terms of whether the legal provision under which a plaintiff is suing defines the scope of potential plaintiffs with sufficient specificity., TABLE OF CONTENTS INTRODUCTION 2288 I. CONCRETENESS AND TANGIBILITY IN CONSTITUTIONAL STANDING DOCTRINE 2295 A. Concreteness as a Prerequisite for Injury in Fact 2295 B. Who Decides? Judicial Legitimacy and [...]

Knowledge from Forgetting, SVEN BERNECKER and THOMAS GRUNDMANN This paper provides a novel argument for granting memory the status of a generative source of justification and knowledge. Memory can produce [...]

Francisco Suarez on Metaphysics of Modality: An Actualist and Essentialist View on Real Possible Beings, ILARIA ACQUAVTVA In this paper Acquaviva explores modal metaphysics in regard to Francisco Suarez's idea [...]

L'adoption de codes de conduite et de gouvernance est devenue une pratique courante pour les sociétés. Malgré les avantages de l'approche volontaire que traduisent ces codes se pose la question de la force de ces engagements pris unilatéralement. En effet, ceux-ci peuvent sembler d'une utilité limitée pour les juristes qui les considèrent souvent comme des gestes de relations publiques et non telle une divulgation comportant des obligations réelles et contraignantes. Or, ces engagements ont une véritable force normative qui peut être révélée par l'entremise de différents outils. Au Québec comme en France, le droit accorde un rôle principalement informatif aux codes de conduite, en ce qu'ils permettent de transmettre de l'information aux investisseurs, aux consommateurs et aux tribunaux. Ce rôle fondamental, bien qu'il soit actuellement sous-estimé, a vocation à faciliter la surveillance des principaux acteurs du marché qui peuvent, par leurs interventions, inciter les sociétés à respecter les engagements qu'elles ont volontairement choisi d'adopter. The adoption of codes of conduct and governance has become commonplace in contemporary societies. Despite the advantages of the voluntary approach they reflect, these codes raise the question of the strength of commitments made unilaterally. Legal experts see them as being of limited usefulness, since they often consider them more as public relations exercises than as disclosures with real and enforceable obligations. However, these commitments have actual normative force that may be revealed using various tools. In particular, in both Québec and France, the law gives a mainly informative role to codes of conduct, in the sense that they transmit information to investors, consumers and the courts. This fundamental role, although currently underestimated, facilitates the oversight of the main market players whose interventions may encourage companies to comply with the commitments they have adopted voluntarily. La adopción de códigos de conducta y de gobernanza se ha convertido en una práctica común en las sociedades. A pesar de las ventajas del enfoque voluntario que brindan estos códigos, se planea la cuestión de la fuerza de estos compromisos suscritos unilateralmente. En efecto, tales compromisos pueden parecer de una utilidad limitada para los juristas, quienes frecuentemente los consideran como gestos de relaciones públicas, y no como una divulgación que comporta obligaciones reales y vinculantes. Ahora bien, estos compromisos poseen una verdadera fuerza normativa que puede ser superada a través de diferentes herramientas. Particularmente en Quebec, al igual que en Francia, el derecho acuerda un rol principalmente informativo a los códigos de conducta, de lo que éstos permiten transmitir como información a inversionistas, consumidores, y del mismo modo, a los tribunales. Aunque en la actualidad este rol fundamental está subestimado, tiene la vocación de facilitar la vigilancia de los principales actores del mercado, quienes con sus intervenciones, pueden incitar a las sociedades para que respeten los compromisos que han escogido y aceptado voluntariamente., 1 La transposition des engagements volontaires par les outils normatifs traditionnels 1.1 Les engagements volontaires dans le droit de la consommation et les valeurs mobilières 1.1.1 L'information à l'égard des [...]

Looking at Di's formidable contribution to international legal scholarship, I am struck by how little of it I know but also by how deep an impact it has had on [...]

Abstract This Article puts forward a normative approach to the responsibility of Internet intermediaries for third-party content they host. It argues that, in thinking about intermediary liability, the focus should [...]

At the time of its resurgence during the last decades of the 20th century, the concept of governance, used by some as a feature of a political solution and by others as a criterion for analysis, was presented as something unchangeable and likely to serve as a lasting reference parameter. However, in particular due to different types of developments on the international stage, the normative dimension of governance most of all will be subject to re-assessment and to changes which even go so far as to question its legitimacy. This leads to us question ourselves regarding the impact of these changes on the normative capacity of governance. This article is based upon the hypothesis that that capacity has today reached the point of exhaustion, due in particular to governance being represented in multiple ways. Keywords: Governance, normativity, consensus, State, legitimacy., Introduction At the time of its resurgence during the last decades of the 20th century, (1) the concept of governance, used by some as a feature of a political solution [...]

INTRODUCTION I. THE UNCONSCIONABILITY DOCTRINE: RECENT USAGE AND HISTORY A. The Recent Rise in the Use of Unconscionability B. The Origins of Unconscionability 1. Railroad Co. v. Lockwood and Contracts [...]

The American Legal Realists (1) did not reject doctrine, because they did not reject the idea that judges decide cases in accordance with normative standards of some kind: 'doctrine,' after [...]

INTRODUCTION I. LEGAL CONCEPTS AND THE DUALITY OF MEANING A. Legal Concepts in the Common Law B. The Duality of Meaning 1. Jural Meaning 2. Normative Meaning II. STABILITY AND [...]

2. Interconceptual Change The second method through which normative change comes about in the common law is best described as the process of interconceptual change (or as interconceptual salience alteration). [...]

This panel was convened at 11:00 a.m., Thursday, April 9, by its moderator Tom Farer of the University of Denver's Josef Korbel School of International Studies, who introduced the panelists: [...]