OAI Archive: Duke Law Scholarship Repository

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100 entries most recently downloaded from the archive "Duke Law Scholarship Repository"

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  1. Originalism and the Law of the Past.William Baude & Stephen E. Sachs - 2019 - Law and History Review 37:809-820.
    Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed. This theory has three important implications for the role of (...)
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  2. Grounding Originalism.William Baude & Stephen E. Sachs - 2019 - Northwestern University Law Review 113.
    How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since. Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, (...)
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  3. Law and Recognition-- Towards a Relational Concept of Law.Ralf Michaels - unknown
    Law is plural. In all but the simplest situations multiple laws overlap—national laws, subnational laws, supranational laws, non-national laws. Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law. This chapter cannot yet provide this concept; it can serve only develop one element. That element is recognition. Recognition is (...)
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  4. The Elusive Quest for a Constitutional Right to Liberty.Michael S. Moore - unknown
    Professor Michael S. Moore, Charles R. Walgreen, Jr. Chair and Co-Director, Program in Law and Philosophy at the University of Illinois College of Law, delivered Duke Law's Annual Brainerd Currie Memorial Lecture entitled "The Elusive Quest for a Constitutional Right to Liberty." One of the country's most prominent authorities on the intersection of law and philosophy, he has published eight books and some 60 major articles, which have appeared in the country's top law reviews and peer reviewed journals in philosophy (...)
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  5. Book Review. [REVIEW]Matthew D. Adler - unknown
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  6. Harsanyi 2.0.Matthew D. Adler - unknown
    How should we make interpersonal comparisons of well-being levels and differences? One branch of welfare economics eschews such comparisons, which are seen as impossible or unknowable; normative evaluation is based upon criteria such as Pareto or Kaldor-Hicks efficiency that require no interpersonal comparability. A different branch of welfare economics, for example optimal tax theory, uses “social welfare functions” to compare social states and governmental policies. Interpersonally comparable utility numbers provide the input for SWFs. But this scholarly tradition has never adequately (...)
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  7. Gender Essentialism and American Law: Why and How to Sever the Connection.Melina Bell - unknown
    Dr. Melina Constantine Bell is an Associate Professor of Philosophy and Law at Washington and Lee University. She joined the philosophy department in 2005 and became associate professor in 2011. She was appointed Associate Professor of Law at the law school in 2015. She is a core faculty member in the Women's, Gender, and Sexuality Studies Program and an affiliate faculty member in the Shepherd Program for the Interdisciplinary Study of Poverty and Human Capability. Professor Bell's primary research interests are (...)
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  8. Perceiving Orientation: Defining Sexuality After Obergefell.Mary Ziegler - unknown
    Mary Ziegler is the Stearns, Weaver, Miller Professor at Florida State University College of Law. In addition to more than twenty articles on the legal history of reproduction and sexuality, she is the author of After Roe: The Lost History of the Abortion Debate, published by Harvard University Press in 2015. For After Roe, she is the recipient of the biannual Thomas J. Wilson Prize for the best book published by the press in any discipline.
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  9. Some Reasons Courts Have Become Active Participants in the Search for Ultimate Moral and Political Truth.George C. Christie - unknown
    This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending (...)
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  10. Aggregating Moral Preferences.Matthew D. Adler - 2016 - Economics and Philosophy 32 (2):283-321.
    :Preference-aggregation problems arise in various contexts. One such context, little explored by social choice theorists, is metaethical. ‘Ideal-advisor’ accounts, which have played a major role in metaethics, propose that moral facts are constituted by the idealized preferences of a community of advisors. Such accounts give rise to a preference-aggregation problem: namely, aggregating the advisors’ moral preferences. Do we have reason to believe that the advisors, albeit idealized, can still diverge in their rankings of a given set of alternatives? If so, (...)
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  11. Would You Choose to Be Happy? Tradeoffs Between Happiness and the Other Dimensions of Life in a Large Population Survey.Matthew D. Adler, Paula Dolan & Georgios Kavetsos - unknown
    A large literature documents the correlates and causes of subjective well-being, or happiness. But few studies have investigated whether people choose happiness. Is happiness all that people want from life, or are they willing to sacrifice it for other attributes, such as income and health? Tackling this question has largely been the preserve of philosophers. In this article, we find out just how much happiness matters to ordinary citizens. Our sample consists of nearly 13,000 members of the UK and US (...)
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  12. Book Reviews: War & Technology.Charles J. Dunlap - unknown
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  13. Happiness Surveys and Public Policy: What's the Use?Matthew D. Adler - unknown
    This Article provides a comprehensive, critical overview of proposals to use happiness surveys for steering public policy. Happiness or “subjective well-being” surveys ask individuals to rate their present happiness, life-satisfaction, affective state, etc. A massive literature now engages in such surveys or correlates survey responses with individual attributes. And, increasingly, scholars argue for the policy relevance of happiness data: in particular, as a basis for calculating aggregates such as “gross national happiness,” or for calculating monetary equivalents for non-market goods based (...)
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  14. The New Old Legal Realism.Mitu Gulati, Tracey E. George & Ann McGinley - unknown
    Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on the view that they do. The authors want to reexamine this question by taking the approach advocated by the original Legal Realists. The current project seeks to add to our knowledge of the relevance of case law by focusing on an area that has received little examination: how pronouncements about employment discrimination law by appellate courts translate into (...)
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  15. The Challenge of Co-Religionist Commerce.Michael A. Helfand & Barak D. Richman - unknown
    This Article addresses the rise of "co-religionist commerce" in the United States—that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, coreligionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated. Under current constitutional doctrine, co-religionist commercial agreements must be translated into secular terminology if (...)
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  16. Concepts of Law.Mathew D. McCubbins & Mark Turner - unknown
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  17. Introduction to, Preferences and Rational Choice: New Perspectives and Legal Implications.Matthew D. Adler, Claire Finkelstein & Peter Huang - unknown
  18. Legal Realism and the Social Contract: Fuller's Public Jurisprudence of Form, Private Jurisprudence of Substance.James Boyle - unknown
  19. The Humanity of Law.H. Jefferson Powell - unknown
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  20. Modernist Social Theory: Roberto Unger's Passion.James Boyle - unknown
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  21. Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment.Joseph Blocher - unknown
    A great deal of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech, like nonrepresentational art, falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is so common, the case is also important — artists like Lewis Carroll and Jackson Pollock are not the only putative (...)
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  22. Rethinking Collective Responsibility for Education.Stephen D. Sugarman & David L. Kirp - unknown
    The first three parts of this article discuss means and ends related to providing education in an essentially decentralized hypothetical society; part 4 considers contemporary American educational policy in light of this analysis; and part 5 analyzes several contemporary proposals for educational reform.
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  23. Covenant and Feminist Reconstructions of Subjectivity Within Theories of Justice.Janet Moore - unknown
    The connections between structuralist, poststructuralist and postmodern philosophers are traced. The opposition between individualists and relationists over the meaning of subjectivity is discussed.
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  24. Culture and Causality: Non-Western Systems of Explanation.William M. O'Barr - unknown
    The logic of some other systems of thought, explanation, and prediction are discussed, in order to find what can be learned about the sociocultural contexts and their functions in other cultures. The truths they may represent are about the human quest to understand causes and effects.
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  25. A Return to Descartes: Property, Profit, and the Corporate Ownership of Animals.Darian M. Ibrahim - unknown
    Philosopher Rene Descartes claimed that animals were no different than inanimate objects: that they could not think or feel pain. Rejection of Descartes' views on animals is nearly universal, but today's factory farms are only possible by treating animals according to Cartesian principles. When faced with the realization that animal foods can be made affordable to most consumers only through factory farming, society is left with a dichotomous choice: either stop purchasing and consuming animal products, or animals will continue to (...)
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  26. The Arts of Persuasion in Science and Law: Conflicting Norms in the Courtroom.Herbert M. Kritzer - unknown
    Epistemology is important in the debate about science and technology in the courtroom. The epistemological issues and the arguments about them in the context of scientific and technical evidence are now well developed. Of equal importance, though, is an understanding of norms of persuasion and how those norms may differ across disciplines and groups. Norms of persuasion in the courtroom and in legal briefs differ from norms at a scientific conference and in scientific journals. Here, Kritzer examines the disconnect between (...)
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  27. Legal Complexity: Some Causes, Consequences, and Cures.Peter H. Schuck - unknown
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  28. Pure Comparative Law and Legal Science in a Mixed Legal System.Lawrence G. Baxter - unknown
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