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Philosophy of Law

Edited by Aness Webster (University of Southern California, University of Nottingham)
Assistant editors: Renee Bolinger, Stephen Bero
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  1. added 2016-04-29
    Chloë Kennedy (forthcoming). Lindsay Farmer: Making the Modern Criminal Law: Criminalization and Civil Order. Criminal Law and Philosophy:1-8.
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  2. added 2016-04-29
    Sally Ramage (2016). GENETICS CRIME AND JUSTICE, EDWARD ELGAR 2015. Current Criminal Law 9 (3):2-29.
    The UK government decided to introduce Income Tax in 1799. Later, tax avoidance schemes involved creation of Deeds of Convenant. It is a fact that crime is increasing but the number of people committing crime is not increasing because many crimes are repeated crimes committed by persons with habitual criminal behaviour, ie hard-core criminals. -/- For more than half a century now, there has been scientific evidence that genetics plays a key role in the origins of criminal behaviour. There are (...)
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  3. added 2016-04-28
    Katrina Sifferd (forthcoming). Book Review: Wringe, Bill. An Expressive Theory of Punishment. Ethics.
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  4. added 2016-04-28
    Matthew Talbert (2016). Symmetry, Rational Abilities, and the Ought-Implies-Can Principle. Criminal Law and Philosophy 10 (2):283-296.
    In Making Sense of Free Will and Moral Responsibility Dana Nelkin defends the “rational abilities view.” According to this view, agents are responsible for their behavior if and only if they act with the ability to recognize and act for good reasons. It follows that agents who act well are open to praise regardless of whether they could have acted differently, but agents who act badly are open to blame only if they could have acted on the moral reasons that (...)
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  5. added 2016-04-28
    Manuel R. Vargas (2016). Responsibility and the Limits of Conversation. Criminal Law and Philosophy 10 (2):221-240.
    Both legal and moral theorists have offered broadly “communicative” theories of criminal and moral responsibility. According to such accounts, we can understand the nature of responsibility by appealing to the idea that responsibility practices are in some fundamental sense expressive, discursive, or communicative. In this essay, I consider a variety of issues in connections with this family of views, including its relationship to free will, the theory of exemptions, and potential alternatives to the communicative model. Focusing on Michael McKenna’s Conversation (...)
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  6. added 2016-04-27
    Thaddeus Metz (2012). Animal Rights and the Interpretation of the South African Constitution. In David Bilchitz & Stu Woolman (eds.), Is This Seat Taken? Conversations at the Bar, the Bench and the Academy. Pretoria University Law Press 209-219.
    In this chapter, a reprinted article from Southern African Public Law (2010), I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice upon (...)
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  7. added 2016-04-26
    Tony Ward (2016). Expert Testimony, Law and Epistemic Authority. Journal of Applied Philosophy 33 (1).
    This article discusses the concept of epistemic authority in the context of English law relating to expert testimony. It distinguishes between two conceptions of epistemic authority, one strong and one weak, and argues that only the weak conception is appropriate in a legal context, or in any other setting where reliance on experts can be publicly justified. It critically examines Linda Zagzebski's defence of a stronger conception of epistemic authority and questions whether epistemic authority is as closely analogous to practical (...)
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  8. added 2016-04-25
    Andrew Ingram (2013). A (Moral) Prisoner's Dilemma: Character Ethics and Plea Bargaining. Ohio State Journal of Criminal Law 11 (1):161-177.
    Plea bargains are the stock-in-trade of the modern American prosecutor’s office. The basic scenario, wherein a defendant agrees to plea guilty in exchange for a reduced sentence, is familiar to viewers of police procedurals. In an equally famous variation on the theme, the prosecutor requests something more than an admission of guilt: leniency will only be forthcoming if the defendant is willing to cooperate with the prosecutor in securing the conviction of another suspect. In some of these cases, the defendant (...)
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  9. added 2016-04-24
    Andrew Ingram (2014). Breaking Laws to Fix Broken Windows: A Revisionist Take on Order Maintenance Policing. Berkeley Journal of Criminal Law 19 (2):112-152.
    Today, there is a family of celebrated police strategies that teach the importance of cracking down on petty crime and urban nuisance as the key to effective crime control. Under the “broken windows” appellation, this strategy is linked in the public mind with New York City and the alleged successes of its police department in reducing the rate of crime over the past two decades. This paper is critical of such order maintenance approaches to policing: I argue that infringements of (...)
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  10. added 2016-04-24
    Andrew Ingram (2012). Parsing the Reasonable Person: The Case of Self-Defense. American Journal of Criminal Law 39 (3):101-120.
    Mistakes are a fact of life, and the criminal law is sadly no exception to the rule. Wrongful convictions are rightfully abhorred, and false acquittals can likewise inspire outrage. In these cases, we implicitly draw a distinction between a court’s finding and a defendant’s actual guilt or innocence. These are intuitive concepts, but as this paper aims to show, contemporary use of the reasonable person standard in the law of self-defense muddles them. -/- Ordinarily, we can distinguish between a person's (...)
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  11. added 2016-04-22
    Siobhan Weare (forthcoming). Bad, Mad or Sad? Legal Language, Narratives, and Identity Constructions of Women Who Kill Their Children in England and Wales. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-22.
    In this article I explore the ways in which legal language, discourses, and narratives construct new dominant identities for women who kill their children. These identities are those of the ‘bad’, ‘mad’, or ‘sad’ woman. Drawing upon and critiquing statutes, case law, and sentencing remarks from England and Wales, I explore how singular narrative identities emerge for the female defendants concerned. Using examples from selected cases, I highlight how the judiciary interpret legislation, use evidence, and draw upon gender stereotypes in (...)
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  12. added 2016-04-22
    Michael Blake (forthcoming). Agency, Coercion, and Global Justice: A Reply to My Critics. Law and Philosophy:1-23.
    Mathias Risse, Andrea Sangiovanni, and Kok-Chor Tan have offered some subtle and powerful criticisms of the ideas given in my Justice and Foreign Policy. Three themes in particular recur in their critiques. The first is that the arguments I make in that book rest upon unjustified, arbitrary, or contradictory premises. The second is that the use of coercion in the analysis of distributive justice is a mistake. The third is that the global institutional set represents, contrary to my arguments, an (...)
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  13. added 2016-04-21
    Carlos Miguel Herrera (forthcoming). Culture Juridique Et Politique: Une Introduction. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-7.
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  14. added 2016-04-19
    Simon Deakin, David Gindis, Geoffrey M. Hodgson, Kainan Huang & Katharina Pistor (forthcoming). Legal Institutionalism: Capitalism and the Constitutive Role of Law. Journal of Comparative Economics.
    Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts (...)
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  15. added 2016-04-19
    Simon Deakin, David Gindis, Geoffrey M. Hodgson, Kainan Huang & Katharina Pistor (forthcoming). Legal Institutionalism: Capitalism and the Constitutive Role of Law. Journal of Comparative Economics.
    Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts (...)
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  16. added 2016-04-18
    Natalia P. Koptseva, Vladimir S. Luzan, Veronica A. Razumovskaya & Vladimir I. Kirko (forthcoming). The Content Analysis of the Russian Federal and Regional Basic Legislation on the Cultural Policy. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-28.
    The content-analysis of the Russian federal and regional basic legislation on the cultural policy has indicated a need in a deep revision of all existing regulatory legal acts, which support the state cultural policy implementation towards building a universal terminology and vesting the functions on the cultural policy implementation in the government as opposed to the statement of the departmental specific approach to the culture.
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  17. added 2016-04-17
    Ken Levy (2017). Why Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism. Lewis and Clark Law Review 21 (1).
    My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...)
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  18. added 2016-04-14
    Janny H. C. Leung (forthcoming). Recent Publications. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-3.
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  19. added 2016-04-11
    Subhasis Chattopadhyay (2016). Review of Giorgio Agamben's Pilate and Jesus. [REVIEW] Prabuddha Bharata or Awakened India 121 (4):431-33.
    This review shows Agamben as (mis)reading Dante and misunderstanding the Jesus event.
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  20. added 2016-04-10
    Kylie Doyle & Kieran Tranter (forthcoming). F#Ck Your Family!: The Visual Jurisprudence of Automobility. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-22.
    This paper considers the popular visual jurisprudence of bumper stickers. Drawing upon a sample sticker/driver/vehicle assemblages observed at the Gold Coast, Australia in 2014, we argue that the meanings and messages projected by the assemblages have a significant legal dimension. The argument is located at the intersection of past research into bumper stickers, increased scholarly interest in the relation of law to automobility and especially recent considerations of the popular visual jurisprudence of the motor vehicle, its cultures and semiotics. In (...)
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  21. added 2016-04-10
    Edgar Dahl (2010). Denn Sie Wissen Nicht, Was Sie Tun. Spektrum der Wissenschaft 2010 (6):72-76.
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  22. added 2016-04-10
    Edgar Dahl (2009). Zur Leugnung des Holocaust. Aufklärung Und Kritik 1:185-187.
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  23. added 2016-04-09
    Jonathan Floyd (forthcoming). Raz on Practical Reason and Political Morality. Jurisprudence:1-20.
    This article examines the relationship between Raz's theories of practical reason and political morality. Raz believes the former underpins the latter, when in fact it undermines it. This is because three core features of his theory of practical reason – desires, goals, and competitive pluralism––combine in such a way as to undermine a core feature of his theory of political morality––what Raz calls our autonomy-based duty to provide everyone with what he takes to be an adequate range of valuable life (...)
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  24. added 2016-04-08
    Janny H. C. Leung (forthcoming). Recent Publications 29-4. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-3.
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  25. added 2016-04-06
    Simon Hope (2016). Human Rights: Sometimes One Thought Too Many? Jurisprudence 7 (1):111-126.
    It is commonly claimed, in the global justice literature, that global injustices are best characterised in terms of the violation or unfulfilment of human rights. I suggest that global justice theorists are overconfident on this point. For decolonising peoples, contemporary global injustice is likely to be characterised in terms drawn from local histories of injustice and the constellations of thick ethical concepts they contain. To make the point I describe how the Māori of New Zealand, who do not reject human (...)
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  26. added 2016-04-06
    Teneille Brown (2016). Law, Neuroscience and Conceptual Housecleaning. Jurisprudence 7 (1):164-170.
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  27. added 2016-04-06
    Katrin Flikschuh (2016). How Far Human Rights? Jurisprudence 7 (1):85-92.
    This short introductory paper explains the broader research setting from which the idea for this symposium arose. I then summarise the arguments mounted by Simon Hope and Kofi Quashigah respectively. Taking a philosophical perspective, Hope asks whether insisting on the language of human rights when broaching issues of historical injustice may not risk misunderstanding the nature of the original wrong. Quashigah analyses the legal conundrums facing modern African states when in seeking to comply with international human rights requirements they risk (...)
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  28. added 2016-04-06
    Andrew Field (2016). Free Will and Consciousness. Jurisprudence 7 (1):127-137.
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  29. added 2016-04-06
    David L. Faigman (2016). Michael S Pardo and Dennis Patterson, Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience. Jurisprudence 7 (1):171-180.
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  30. added 2016-04-06
    Michael S. Pardo & Dennis Patterson (2016). Symposium on Minds, Brains, and Law: A Reply. Jurisprudence 7 (1):181-191.
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  31. added 2016-04-06
    Stephen J. Morse (2016). Michael Pardo and Dennis Patterson, Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience. Jurisprudence 7 (1):158-163.
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  32. added 2016-04-06
    Kofi Quashigah (2016). Justice in the Traditional African Society Within the Modern Constitutional Set-Up. Jurisprudence 7 (1):93-110.
    This paper discusses justice as an inherent aspect of life in traditional African societies. It further examines the degree to which constitutions of African countries recognise and promote the traditions and customary practices. It is noted that of late, in the desire to contextualise justice, human rights has to a large extent become the yardstick. This universal idea often creates conflicts with African customary practices which indeed represent the expectations of individuals or groups within such customary traditions. It is therefore (...)
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  33. added 2016-04-04
    Scott Anderson (2009). Rationalizing Indirect Guilt. Vermont Law Review 33 (3):519-550.
  34. added 2016-04-04
    Scott Anderson, Coercion as Enforcement, and the Social Organization of Power Relations: A Rubric for Distinguishing Coercion From Related Phenomena.
    The traditional understanding of coercion as exemplified by the use of force and violence to constrain the actions of agents has been challenged by theories that describe coercion instead in terms of the pressure it puts on some agents to act or refrain from acting. Building on earlier work defending the traditional understanding and rejecting the ‘pressure’ accounts of coercion, I argue in this paper that the traditional understanding of coercion, which I dub ‘coercion as enforcement’, provides a helpful analytic (...)
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  35. added 2016-04-03
    M. Beth Henzel (forthcoming). Defense Categories and the De Minimis Defense. Criminal Law and Philosophy:1-15.
    De minimis defenses are an understudied aspect of law, appearing in legal practice more often than in legal theory but rarely garnering any type of extensive analysis in either. This has led to an unfortunate state of affairs in which one term is applied to a set of practices that are, at best, only loosely connected. Using Paul Robinson’s system of defense types, this paper will illustrate the various roles and functions the de minimis defense plays in our legal system. (...)
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  36. added 2016-04-02
    Triantafyllos Gkouvas (forthcoming). Resisting Perspectivalism About Law: The Scope of Jurisprudential Disagreement. Jurisprudence:1-25.
    Even though the acknowledgment of the possibility of disagreement about the grounds of legal facts tends to acquire the shell of a mainstream view, the available regimentations of grounding disagreements in law limit their scope to two mutually exclusive jurisprudential variants. Ronald Dworkin’s original conception of theoretical disagreement as being about the responsibilities of government vis-à-vis its citizens is distinctly evaluative thereby excluding legal positivists from meaningful participation. An alternative descriptive variant has been recently defended by Scott Shapiro which replicates, (...)
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  37. added 2016-04-02
    Mariano Croce & Andrea Salvatore (2016). After Exception: Carl Schmitt's Legal Institutionalism and the Repudiation of Exceptionalism. Ratio Juris 29 (1):n/a-n/a.
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  38. added 2016-04-01
    Carmen E. Pavel (forthcoming). A Legal Conventionalist Approach to Pollution. Law and Philosophy:1-27.
    There are no moral entitlements with respect to pollution prior to legal conventions that establish them, or so I will argue. While some moral entitlements precede legal conventions, pollution is part of a category of harms against interests that stands apart in this regard. More specifically, pollution is a problematic type of harm that creates liability only under certain conditions. Human interactions lead to harm and to the invasion of others’ space regularly, and therefore we need an account of undue (...)
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  39. added 2016-03-31
    Georgi Gardiner (2016). In Defence of Reasonable Doubt. Journal of Applied Philosophy 33 (1):n/a-n/a.
    In criminal trials the state must establish, to a particular standard of proof, the defendant's guilt. The most widely used and important standard of proof for criminal conviction is the ‘beyond a reasonable doubt' standard. But what legitimates this standard, rather than an alternative? One view holds the standard of proof should be determined or justified – at least in large part – by its consequences. In this spirit, Laudan uses crime statistics to estimate risks the average citizen runs of (...)
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  40. added 2016-03-31
    Jovana Davidovic (2015). Universal Jurisdiction and International Criminal Law. In Chad Flanders & Zach Hoskins (eds.), The New Philosophy of Criminal Law. Rowman & Littlefield 113-130.
    Davidovic asks what gives the international community the authority to punish some crimes? On one prominent view some crimes (genome, torture) are so heinous that the international community, so long as its procedures are fair, is justified in prosecuting them. Another view contends that heinousness alone is not enough to justify international prosecution: what is needed is an account of why the international community, in particular, has standing to hold the perpetrators to account. Davidovic raises concerns about both of these (...)
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  41. added 2016-03-29
    Agostino Carrino (forthcoming). Considérations Critiques Sur la Constitution Et les Droits Dans la Culture Juridique Italienne Contemporaine. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-18.
    In the following paper is put in question the present-day dominant Italian ideology of the so called ‘new constitutionalism’, which considers human rights as an open-texture catalogue of claims which only the Constitutional Courts are entitled to interpret and implement. This ideology is considered as a tool for overcoming the traditional liberal rule of law in favor a of more and more developed rule of the courts.
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  42. added 2016-03-29
    Marek Piechowiak (2016). Thomas Aquinas – Human Dignity and Conscience as a Basis for Restricting Legal Obligations. Diametros 47:64-83.
    In contemporary positive law there are legal institutions, such as conscientious objection in the context of military service or “conscience clauses” in medical law, which for the sake of respect for judgments of conscience aim at restricting legal obligations. Such restrictions are postulated to protect human freedom in general. On the basis of Thomas Aquinas’ philosophy, it shall be argued that human dignity, understood as the existential perfection of a human being based on special unity, provides a foundation for (...)
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  43. added 2016-03-27
    Seth Lazar (forthcoming). Complicity, Collectives, and Killing in War. Law and Philosophy:1-25.
    Recent work on the ethics of war has struggled to simultaneously justify two central tenets of international law: the Permission to kill enemy combatants, and the Prohibition on targeting enemy noncombatants. Recently, just war theorists have turned to collectivist considerations as a way out of this problem. In this paper, I reject the argument that all and only unjust combatants are liable to be killed in virtue of their complicity in the wrongful war fought by their side, and that noncombatants (...)
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  44. added 2016-03-27
    Benjamin Woodring (forthcoming). Law, Literature, and Sublimated Scripts. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-7.
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  45. added 2016-03-26
    Marina Gorali (2016). Derecho e inclusión: diez aportes iusfilosóficos para la enseñanza jurídica. Revista Digital de Carrera Docente Facultad de Derecho (Universidad de Buenos Aires):77-86.
    Los profundos niveles de asimetría, inequidad y exclusión que exhibe nuestra contemporaneidad, las deportaciones masivas de refugiados, la criminalización de la indocumentación demandan más que nunca la necesidad de impulsar nuevos modos de pensar el derecho; modos que permitan forjar un derecho inclusivo, dialógico, abierto y participativo. Llevar adelante esta tarea supone, ante todo, repensar los presupuestos filosóficos sobre los que el pensamiento jurídico se asienta. Resulta así imprescindible deconstruir ciertas categorías medulares en la conformación de la Teoría Jurídica. Esto (...)
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  46. added 2016-03-26
    Paula Kim (2014). Psychopathy, Genes, and the Criminal Justice System. The Columbia Science and Technology Law Review 15:375-400.
    This Note examines whether, and at which stages, a criminal defendant should be permitted to offer genetic evidence of a predisposition to psychopathy. Drawing on multidisciplinary sources, including the work of legal scholars, neurobiologists, psychologists, and medical researchers, the Note discusses psychopathy, its symptoms, and how it is measured, along with the proposed genetic and environmental causes of the disorder. The Note then examines current evidence rules and trends in the admissibility of genetic evidence at the guilt/innocence phase of criminal (...)
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  47. added 2016-03-25
    Dietrich Busse (forthcoming). Martin Staude: Meaning in Communication, Cognition, and Reality: Outline of a Theory From Semiotics, Philosophy, and Sociology. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-7.
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  48. added 2016-03-25
    Richard L. Lippke (forthcoming). Punishment Drift: The Spread of Penal Harm and What We Should Do About It. Criminal Law and Philosophy:1-15.
    It is well documented that the effects of legal punishment tend to drift to the family members, friends, and larger communities of convicted offenders. Instead of conceiving of punishment drift as incidental to legal punishment, or as merely foreseen but not intended by state authorities and thus permissible, I argue that efforts ought to be undertaken to limit or ameliorate it. Failure to confine punishment drift comes perilously close to punishment of the innocent and is (...)
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  49. added 2016-03-24
    Roy Sorensen (2001). Vagueness has No Function in Law. Legal Theory 7 (4):387-417.
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  50. added 2016-03-23
    Santiago Legarre (forthcoming). HLA Hart and the Making of the New Natural Law Theory. Jurisprudence:1-17.
    This article considers HLA Hart's influence in the making of John Finnis's book Natural Law and Natural Rights. In the style of an intellectual biography it traces the history of the interaction between the two Oxford legal philosophers using their correspondence as a starting point. It also delves into Finnis's years in Africa—a period of his life both crucial for the writing of the book and utterly unknown. It argues that Hart's role was significant not only insofar as he was (...)
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