About this topic
Summary The Legal Process School in American jurisprudence is usually associated with Henry M. Hart and Albert M. Sacks' textbook The Legal Process: Basic Problems in the Making and Application of Law. In it, Hart and Sacks sought to identify a mid-point between legal formalism and legal realism. By focusing on the processes of legislative and institutional decision-making, as well as on the norms governing judicial reasoning and adjudication, they attempted to reconcile legal discretion with the rule of law. Although their own solution to this problem is no longer central within legal philosophy, concerns about discretion and the rule of law have become ever more pressing, and debates about legal process recur throughout civil, criminal, and immigration law. Current debates over legal process center on questions about the design and operation of legal procedures, and their relationship with democratic institutions.
Key works For background on Hart and Sacks' work, see Eskridge & Frickey 1994. For the relationship with Legal Positivism, see Hart 2013, as well as Shaw 2013 and Lacey 2013. For more contemporary concerns, see Waldron 2011. For an account of legal process from within the republican tradition, see Pettit 2012. On the debate over the status of procedural rights, see Alexander 1998 and Wellman 2014. For the complexities of US immigration law in particular, see Motomura 1990 and Markowitz 2011.
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  1. Seeking Mutual Understanding. A Discourse Theoretical Analysis of the WTO Dispute Settlement System.Emanuela Ceva & Andrea Fracasso - 2010 - World Trade Review 9 (3):457-485.
    The WTO Dispute Settlement System (DSS) has been the object of many studies in politics, law, and economics focusing on institutional design problems. This paper contributes to such studies by accounting for the argumentative nature and sophisticated features of the DSS through a philosophical analysis of the procedures through which it is articulated. Jürgen Habermas's discourse theory is used as a hermeneutic device to disentangle the types of ‘orientations’ (compromise, consensus, and mutual understanding) pertaining to DSS procedures. We show that (...)
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  2. Nationalism with Chinese Characteristics: Infliction of Condescension.Yang Immanuel Pachankis - forthcoming - Academia Letters.
    The letter analyzes the country-specific structural stigma in the modern media development of People’s Republic of China. It raises the issues on unconventional cybersecurity risks in mental & psychological health with a lens of justice in gender & marriage, and critical discourses in the media environment with the Chinese revisionist nationalism. It studied media coercion in relation to the breaches of humanitarian law in the constitutionalism context of PRC, and adopted a critical theory approach to religion with the background of (...)
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  3. A Probabilistic Analysis of Title IX Reforms.Yoaav Isaacs & Jason Iuliano - 2022 - Journal of Political Philosophy 30 (1):70-93.
    Journal of Political Philosophy, EarlyView.
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  4. Subsidiarity and the Criminal Jury.Michael Plaxton - 2022 - American Journal of Jurisprudence 67 (1):33-56.
    The institution of trial-by-jury is a puzzle in the modern criminal justice system. It has dubious merits as a mechanism for applying facts to law. If anything, it represents a challenge to the very idea that decision-making should be consistent and transparent. Yet the emphasis on the relative ineffectiveness and inefficiency of the jury as a trier of fact may miss the point. The jury does not function merely as a verdict-generating machine, or as a procedural safeguard for individual defendants. (...)
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  5. On the Need to Study Processes of Taking Minutes from Case Hearings: Contribution to and Call for Future Research.Michał Dudek & Mateusz Stępień - 2021 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 34 (2):421-446.
    This paper’s aim is to promote greater interest in courtroom practices of minute-taking—the preparation of written documents that constitute a record of what was said and done in the courtroom during a case hearing, very often based on a judge’s dictation of rephrased questioned person’s statements to a clerk who records them. This aim is achieved through discussion ultimately focused on the distinguishable aspects of minute-taking, its possible underlying mechanisms, and further consequences, followed by some remarks concerning the judge–clerk relationship (...)
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  6. The Rule of Law in the United States: An Unfinished Project of Black Liberation.Paul Gowder - 2021 - Bloomsbury Publishing.
    What is the American rule of law? Is it a paradigm case of the strong constitutionalism concept of the rule of law or has it fallen short of its rule of law ambitions? -/- This open access book traces the promise and paradox of the American rule of law in three interwoven ways. -/- It focuses on explicating the ideals of the American rule of law by asking: how do we interpret its history and the goals of its constitutional framers (...)
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  7. Critical Legal Studies and the Rule of Law.Mark Tushnet - 2021 - In Jens Meierhenrich & Martin Loughlin (eds.), The Cambridge Companion to the Rule of Law. pp. 328 - 339.
    This brief essay describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an (...)
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  8. The President and Immigration Law.Adam B. Cox & Cristina M. Rodríguez - 2020 - Oxford University Press.
    Who controls American immigration policy? The biggest immigration controversies of the last decade have all involved policies produced by the President—policies such as President Obama’s decision to protect Dreamers from deportation and President Trump’s proclamation banning immigrants from several majority-Muslim nations. While critics of these policies have been separated by a vast ideological chasm, their broadsides have embodied the same widely shared belief: that Congress, not the President, ought to dictate who may come to the United States and who will (...)
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  9. What Taylor Swift and Beyoncé Teach Us About Sex and Causes.Robin Dembroff, Issa Kohler-Hausmann & Elise Sugarman - 2020 - University of Pennsylvania Law Review 169 (1):1-12.
    In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the evidence (...)
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  10. Grounding Procedural Rights.N. P. Adams - 2019 - Legal Theory (1):3-25.
    Contrary to the widely accepted consensus, Christopher Heath Wellman argues that there are no pre-institutional judicial procedural rights. Thus commonly affirmed rights like the right to a fair trial cannot be assumed in the literature on punishment and legal philosophy as they usually are. Wellman canvasses and rejects a variety of grounds proposed for such rights. I answer his skepticism by proposing two novel grounds for procedural rights. First, a general right against unreasonable risk of punishment grounds rights to an (...)
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  11. The Twilight of Legality.John Gardner - 2019 - Australasian Journal of Legal Philosophy 43 (1):1-16.
    This paper argues that juridification has become the enemy of legality. By 'juridification' is meant the proliferation of legal norms and legally recognized norms. By legality is meant conformity with the ideal of the rule of law. The paper begins with the most obvious ways in which juridification threatens legality. Too much law makes the law on any subject hard to discover, hard to remember, and hard to follow. It also makes us too dependent on the discretion of petty officials, (...)
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  12. Concept, Principle, and Norm—Equality Before the Law Reconsidered.Frej Klem Thomsen - 2018 - Legal Theory 24 (2):103-134.
    Despite the attention equality before the law has received, both laudatory and critical, peculiarly little has been done to precisely define it. The first ambition of this paper is to remedy this, by exploring the various ways in which a principle of equality before the law can be understood and suggest a concise definition. With a clearer understanding of the principle in hand we are better equipped to assess traditional critique of the principle. Doing so is the second ambition of (...)
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  13. Dark Ghettos: Injustice, Dissent, and Reform.Tommie Shelby - 2016 - Cambridge, MA: Harvard University Press.
    Why do American ghettos persist? Decades after Moynihan’s report on the black family and the Kerner Commission’s investigations of urban disorders, deeply disadvantaged black communities remain a disturbing reality. Scholars and commentators today often identify some factor―such as single motherhood, joblessness, or violent street crime―as the key to solving the problem and recommend policies accordingly. But, Tommie Shelby argues, these attempts to “fix” ghettos or “help” their poor inhabitants ignore fundamental questions of justice and fail to see the urban poor (...)
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  14. Legal Retrieval as Support to eMediation: Matching Disputant’s Case and Court Decisions.Soufiane El Jelali, Elisabetta Fersini & Enza Messina - 2015 - Artificial Intelligence and Law 23 (1):1-22.
    The perspective of online dispute resolution is to develop an online electronic system aimed at solving out-of-court disputes. Among ODR schemes, eMediation is becoming an important tool for encouraging the positive settlement of an agreement among litigants. The main motivation underlying the adoption of eMediation is the time/cost reduction for the resolution of disputes compared to the ordinary justice system. In the context of eMediation, a fundamental requirement that an ODR system should meet relates to both litigants and mediators, i.e. (...)
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  15. Outlaws.Elizabeth Anderson - 2014 - The Good Society 23 (1):103-113.
    In this article, I argue that mass incarceration belongs to a category of social status interventions by which the modern state either withholds the ordinary protections and benefits of the law from outlawed groups or subjects them to private punishment based on their mere membership in those groups. In the US these groups include immigrants and resident Latinos, the homeless, the poor and poor blacks, sex workers, and ex-convicts. Outlawry is a fundamentally anti-democratic practice that cannot be justified in terms (...)
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  16. Immigration Outside the Law.Hiroshi Motomura - 2014 - Oxford, UK: Oxford University Press.
    In 1975, Texas adopted a law allowing school districts to bar children from public schools if they were in the United States unlawfully. The US Supreme Court responded in 1982 with a landmark decision, Plyler v. Doe, that kept open the schoolhouse doors, allowing these children to get the education that state law would have denied. The Court established a child's constitutional right to attend public elementary and secondary schools, regardless of immigration status. With Plyler, three questions emerged that have (...)
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  17. Legal Network Formation and Breakdown of Linear System Organization.M. Isabel Garrido Gómez - 2013 - Archiv für Rechts- Und Sozialphilosophie 99 (4):544-555.
    This article attempts to analyze the deconstruction of the linear organization of legal systems into a plurality of organized networks conform a circular systemic organization. As we know, the process of systematization runs parallel to the evolution of the modern State and, in this sense, the structure constitutes a single and well defined corps. However, at present, the emergence of multiple legal networks has been seen to turn Law into a structure that translates into a plethora of information that is (...)
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  18. The Rule of Law and Equality.Paul Gowder - 2013 - Law and Philosophy 32 (5):565-618.
    This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.
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  19. Discretion.H. L. A. Hart - 2013 - Harvard Law Review 127 (2):652-665.
    In this field questions arise which are certainly difficult; but as I listened last time to members of the group, I felt that the main difficulty perhaps lay in determining precisely what questions we are trying to answer. I have the conviction that if we could only say clearly what the questions are, the answers to them might not appear so elusive. So I have begun with a simple list of questions about discretion which in one form or another were, (...)
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  20. The Path Not Taken: H.L.A. Hart’s Harvard Essay on Discretion.Nicola Lacey - 2013 - Harvard Law Review 127 (2):636-651.
    In this brief introduction, I shall rather reflect, from a biographer’s viewpoint, on the significance of Discretion for our understanding of the trajectory of Hart’s ideas and on the significance of his year at Harvard. I shall then move on to consider the intriguing question of why Hart did not subsequently publish or build on some of the key insights in the paper itself. Here I highlight the fact that, almost uniquely in Hart’s work, Discretion features a notable emphasis on (...)
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  21. H.L.A. Hart’s Lost Essay: Discretion and the Legal Process School.Geoffrey C. Shaw - 2013 - Harvard Law Review 127 (2):666-727.
    This Essay analyzes an essay by H. L. A. Hart about discretion that has never before been published, and has often been considered lost. Hart, one of the most significant legal philosophers of the twentieth century, wrote the essay at Harvard Law School in November 1956, shortly after he arrived as a visiting professor. In the essay, Hart argued that discretion is a special mode of reasoned, constrained decisionmaking that occupies a middle ground between arbitrary choice and determinate rule application. (...)
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  22. The Rule of Law.E. P. Thompson - 2013 - In Whigs and Hunters: The Origin of the Black Act. pp. 202-210.
    Originally published in 1975, this is the concluding section of E.P. Thompson's study of the 18th century English legislation known as "the Black Act." Thompson, a Marxist historian, here embraces and defends the notion of the rule of law, famously calling it "an unqualified human good" (p. 208).
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  23. On the People's Terms: A Republican Theory and Model of Democracy.Philip Pettit - 2012 - Cambridge University Press.
    According to republican theory, we are free persons to the extent that we are protected and secured in the same fundamental choices, on the same public basis, as one another. But there is no public protection or security without a coercive state. Does this mean that any freedom we enjoy is a superficial good that presupposes a deeper, political form of subjection? Philip Pettit addresses this crucial question in On the People's Terms. He argues that state coercion will not involve (...)
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  24. 'Too Young to Sell Me Sex!?' Mens Rea, Mistake of Fact, Reckless Exploitation, and the Underage Sex Worker.Lucinda Vandervort - 2012 - Criminal Law Quarterly 58 (3/4):355-378.
    In 1987, apprehension that “unreasonable mistakes of fact” might negative mens rea in sexual assault cases led the Canadian Parliament to enact “reasonable steps” requirements for mistakes of fact with respect to the age of complainants. The role and operation of the “reasonable steps” provisions in ss. 150.1(4) and (5) and, to a lesser extent, s. 273.2 of the Criminal Code, must be reassessed. Mistakes of fact are now largely addressed at common law by jurisprudence that has re-invigorated judicial awareness (...)
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  25. Affirmative Sexual Consent in Canadian Law, Jurisprudence, and Legal Theory.Lucinda Vandervort - 2012 - Columbia Journal of Gender and Law 23 (2):395-442.
    This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are (...)
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  26. Access to Justice and the Public Interest in the Administration of Justice.Lucinda Vandervort - 2012 - University of New Brunswick Law Journal 63:124-144.
    The public interest in the administration of justice requires access to justice for all. But access to justice must be “meaningful” access. Meaningful access requires procedures, processes, and institutional structures that facilitate communication among participants and decision-makers and ensure that judges and other decision-makers have the resources they need to render fully informed and sound decisions. Working from that premise, which is based on a reconceptualization of the objectives and methods of the justice process, the author proposes numerous specific changes (...)
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  27. Purposive Interpretation in Law.Aharon Barak - 2011 - Princeton University Press.
    This book presents a comprehensive theory of legal interpretation, by a leading judge and legal theorist. Currently, legal philosophers and jurists apply different theories of interpretation to constitutions, statutes, rules, wills, and contracts. Aharon Barak argues that an alternative approach--purposive interpretation--allows jurists and scholars to approach all legal texts in a similar manner while remaining sensitive to the important differences. Moreover, regardless of whether purposive interpretation amounts to a unifying theory, it would still be superior to other methods of interpretation (...)
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  28. The Modular Logic of Private International Law.Phan Minh Dung & Giovanni Sartor - 2011 - Artificial Intelligence and Law 19 (2-3):233-261.
    We provide a logical analysis of private international law, a rather esoteric, but increasingly important, domain of the law. Private international law addresses overlaps and conflicts between legal systems by distributing cases between the authorities of such systems (jurisdiction) and establishing what rules these authorities have to apply to each case (choice of law). A formal model of the resulting interactions between legal systems is proposed based on modular argumentation. It is argued that this model may also be useful for (...)
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  29. Deportation is Different.Peter L. Markowitz - 2011 - University of Pennsylvania Journal of Constitutional Law 13 (5):1299-1361.
    Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly 400,000 individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Among those 400,000 were numerous detained juveniles and mentally ill individuals who, as a result of the civil designation, had no right to appointed counsel. These individuals were thus forced to navigate (...)
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  30. Legality.Scott J. Shapiro (ed.) - 2011 - Harvard University Press.
    What is law (and why should we care)? -- Crazy little thing called "law" -- Austin's sanction theory -- Hart and the rule of recognition -- How to do things with plans -- The making of a legal system -- What law is -- Legal reasoning and judicial decision making -- Hard cases -- Theoretical disagreements -- Dworkin and distrust -- The economy of trust -- The interpretation of plans -- The value of legality.
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  31. The Rule of Law and the Importance of Procedure.Jeremy Waldron - 2011 - Nomos 50:3-31.
    Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do with (...)
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  32. The New Jim Crow: Mass Incarceration in the Age of Colorblindness.Michelle Alexander & Cornel West - 2010 - The New Press.
    This book directly challenges the notion that the election of Barack Obama signals a new era of colorblindness. Michelle Alexander argues that "we have not ended racial caste in America; we have merely redesigned it." By targeting black men through the War on Drugs and decimating communities of color, the U.S. criminal justice system functions as a contemporary system of racial control---relegating millions to a permanent second-class status---even as it formally adheres to the principle of colorblindness.
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  33. Trial Courts and Adjudication.Sharyn Roach Anleu & Kathy Mack - 2010 - In Peter Cane & Herbert M. Kritzer (eds.), The Oxford Handbook of Empirical Legal Research. Oxford University Press.
    Empirical legal research into courts and adjudication starts with a formal model of trial courts and the nature of adjudication. This article discusses empirical legal research on trial courts and adjudication and divides them into three dimensions of analysis, macro, meso, and micro, to frame the discussion of empirical legal studies into courts and adjudication, the various methods researchers use, and significant findings. Empirical research may be theoretical, pragmatic or policy oriented. A large body of research approaches the study of (...)
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  34. Where Does Law Come From?Gerard Casey - 2010 - Philosophical Inquiry 32 (3-4):85-92.
    Law, like language, is the product of social evolution, embodied in custom. The conditions for the emergence of law—embodiment, scarcity, rationality, relatedness and plurality—are outlined, and the context for the emergence of law—dispute resolution—is analysed. Adjudication procedures, rules and enforcementmechanisms, the elements of law, emerge from this context. The characteristics of such a customarily evolved law are its severely limited scope, its negativity, andits horizontality. It is suggested that a legal system (or legal systems) based on the principles of archaic (...)
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  35. Hard Cases in Wicked Legal Systems: Pathologies of Legality.David Dyzenhaus - 2010 - Oxford University Press UK.
    The idea of a wicked legal system, one whose laws have been made the instrument of a repugnant moral ideology, continues to play an important part in philosophical debates about the nature of law and law's claim to moral authority. It seems to offer support for the argument of legal positivists, who insist on a clear conceptual distinction between legal requirements, deriving from social sources, and moral requirements. Does the existence of wicked legal systems present an insurmountable obstacle to critics (...)
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  36. Dispute Resolution.Carrie J. Menkel-Meadow - 2010 - In Peter Cane & Herbert M. Kritzer (eds.), The Oxford Handbook of Empirical Legal Research. Oxford University Press.
    This article introduces the concept of alternate dispute resolution, and discusses its baseline measure and comparison process. Empirical research on ADR falls into two categories, empirically descriptive work and empirically comparative work. Litigation varies across legal systems and changes through time, just as does ADR. Many studies have documented and described patterns of uses of particular forms of dispute resolution. These studies are designed to explore variations of behavior or outcomes within a particular process. Several commentators have observed that formal (...)
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  37. Doing Justice to Rights and Values: Teleological Reasoning and Proportionality. [REVIEW]Giovanni Sartor - 2010 - Artificial Intelligence and Law 18 (2):175-215.
    This paper studies how legal choices, and in particular legislative determinations, need to consider multiple rights and values, and can be assessed accordingly. First it is argued that legal norms (and in particular constitutional right-norms) often prescribe the pursuit of goals, which may be in conflict one with another. Then a model of teleological reasoning is brought to bear on choices affecting different goals, among which those prescribed by constitutional norms. An analytical framework is provided for evaluating such choices with (...)
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  38. Irreconcilable Differences? The Troubled Marriage of Science and Law.Susan Haack - 2009 - Law and Contemporary Problems 72 (1).
    Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes (...)
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  39. Overcriminalization: The Limits of the Criminal Law.Douglas N. Husak - 2009 - Oup Usa.
    Husak's primary goal is to defend a set of constraints to limit the authority of states to enact and enforce criminal offenses. In addition, Husak situates this endeavor in criminal theory as traditionally construed. This book urges the importance of this topic in the real world, while most Anglo-American legal philosophers have neglected it.
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  40. Waldron, Waluchow and the Merits of Constitutionalism.Joshua Mildenberger - 2009 - Oxford Journal of Legal Studies 29 (1):71-90.
    In this article, I critically evaluate the positions of Professors Jeremy Waldron and W.J. Waluchow on the right-based merits of entrenched constitutions and strong judicial review. I support Waluchow in arguing that (i) prohibitions on the constitutional entrenchment of rights and resultant prohibitions of strong judicial review may be only superficially fair or democratic, since fair procedure alone can neither eliminate pre-existing inequalities nor ultimately take the autonomy vital to self-governance seriously (whether individual or collective). Secondly, (ii) if deep dissensus (...)
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  41. Democratic Theory and Border Coercion.Arash Abizadeh - 2008 - Political Theory 36 (1):37-65.
    The question of whether or not a closed border entry policy under the unilateral control of a democratic state is legitimate cannot be settled until we first know to whom the justification of a regime of control is owed. According to the state sovereignty view, the control of entry policy, including of movement, immigration, and naturalization, ought to be under the unilateral discretion of the state itself: justification for entry policy is owed solely to members. This position, however, is inconsistent (...)
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  42. Judicial Review Without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review.Adrienne Stone - 2008 - Oxford Journal of Legal Studies 28 (1):1-32.
    This article addresses an issue overlooked in most of the literature on judicial review: the legitimacy of judicial review of a constitution's federal and structural provisions. Debates about the legitimacy of judicial review—at least as conducted throughout the Commonwealth—are usually focussed on rights. These debates appear to assume that the power of courts like the Australian High Court and the Canadian Supreme Court to interpret and enforce federal and structural provisions is unproblematic. This article tests that assumption and concludes that (...)
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  43. Metadialogues for Resolving Burden of Proof Disputes.Douglas N. Walton - 2007 - Argumentation 21 (3):291-316.
    In this paper, a solution to the problem of analyzing burden of proof in argumentation is developed by building on the pioneering work of Erik C. W. Krabbe on metadialogues. Three classic cases of burden of proof disputes are analyzed, showing how metadialogue theory can solve the problems they pose. The solution is based on five dialectical requirements: (1) global burden of proof needs to be set at the confrontation stage of a dialogue, (2) there need to be special mechanisms (...)
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  44. The Citizen and the Alien: Dilemmas of Contemporary Membership.Linda S. Bosniak - 2006 - Princeton University Press.
  45. This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy.Dale Antony Turner - 2006 - Toronto: University of Toronto Press.
    Explores indigenous intellectual culture and its relationship to, and within, the dominant Euro-American culture. This book also contends that indigenous intellectuals need to engage the legal and political discourses of the state, respecting both indigenous philosophies and Western European intellectual traditions.
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  46. The Core of the Case Against Judicial Review.Jeremy Waldron - 2006 - Yale Law Journal 115:1346-1406.
    author. University Professor in the School of Law, Columbia University. (From July 2006, Professor of Law, New York University.) Earlier versions of this Essay were presented at the Colloquium in Legal and Social Philosophy at University College London, at a law faculty workshop at the Hebrew University of Jerusalem, and at a constitutional law conference at Harvard Law School. I am particularly grateful to Ronald Dworkin, Ruth Gavison, and Seana Shiffrin for their formal comments on those occasions and also to (...)
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  47. A Common Law Theory of Judicial Review: The Living Tree.W. J. Waluchow - 2006 - Cambridge University Press.
    In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different (...)
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  48. Constitutions as Living Trees: An Idiot Defends.Wil Waluchow - 2005 - Canadian Journal of Law and Jurisprudence 18 (2):207-247.
    In this article, I defend Charters of Rights and the practices of judicial review to which they normally give rise against a number of objections one encounters in public and academic discourse, most notably in the work of Jeremy Waldron. In answering Waldron and his fellow critics, I develop a “living tree” or “common law” conception of Charters and show how it can be used successfully to answer their most powerful criticisms.
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  49. The Rights of Others: Aliens, Residents, and Citizens.Seyla Benhabib - 2004 - Cambridge University Press.
    The Rights of Others examines the boundaries of political community by focusing on political membership - the principles and practices for incorporating aliens and strangers, immigrants and newcomers, refugees and asylum seekers into existing polities. Boundaries define some as members, others as aliens. But when state sovereignty is becoming frayed, and national citizenship is unravelling, definitions of political membership become much less clear. Indeed few issues in world politics today are more important, or more troubling. In her Seeley Lectures, the (...)
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  50. Voting Procedures for Complex Collective Decisions. An Epistemic Perspective.Luc Bovens & Wlodek Rabinowicz - 2004 - Ratio Juris 17 (2):241-258.
    Suppose a committee or a jury confronts a complex question, the answer to which requires attending to several sub-questions. Two different voting procedures can be used. On one, the committee members vote on each sub-question and the voting results are used as premises for the committee’s conclusion on the main issue. This premise-based procedure can be contrasted with the conclusion-based approach, which requires the members to directly vote on the conclusion, with the vote of each member being guided by her (...)
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