Urbanization, the Intelligentsia, and Meaning Change: A Comment on Horacio Spector\u27s Value Pluralism and the Two Concepts of Rights

In my view, Professor Spector\u27s paper is more persuasive in identifying the rhetorical change that has taken place than in providing a causal account of its genesis. The traditional rights of private property and freedom of contract do seem a long way from the new rights to receive medical care or safe and affordable housing. However, the rural-to-urban hypothesis for the cause of this change is not especially persuasive. Laissez-faire thinking of autonomous private spheres was at its height in the late eighteenth and early nineteenth centuries, among conditions far more urban and commercial than had historically been the case and among countries such as England and Holland that were more urban than most at the time. It has also made a remarkable comeback in the late twentieth and early twenty-first centuries in countries where urban crowding can make Manhattan seem bucolic

Problems in the Application of Political Philosophy to Law

There are at least four reasons why one might expect differences between the philosophies one would want to serve the pure normative philosophy function and the applied political philosophy function. The problems of rationalization and limited knowledge suggest that sincere commitment to and successful application of a philosophy cannot be equated; the problems of attraction of the insincere and the lack of institutional checks on the abuse of philosophical concepts suggest that even a sincere commitment may not remain stable. The remainder of this article seeks to substantiate the thesis that modern political philosophies suffer from insufficient attention to the distinction between the two ideals of political philosophy as a discipline. Part II considers the philosophy of the Critical Legal Studies movement, with particular emphasis upon the writings of Duncan Kennedy. Part III considers act and rule utilitarianism. Part IV ex-amines the philosophy of John Rawls and others who have followed him. Part V treats the libertarian analysis of Robert Nozick. Part VI concludes that the difficulties these philosophies have encountered are indeed symptomatic of the broader problem of the two distinct functions that political philosophies have sought to perform

Was the Corruption of Civil Rights Law Inevitable

This Article accepts Richard Epstein\u27s premise that civil rights laws have become corrupt set forth in his book Forbidden Grounds: The Case Against Employment Discrimination. Once this corruption is recognized, this Article asks two questions about the change in focus of the antidiscrimination laws: (1) Was it inevitable that the antidiscrimination laws would follow this course?; and (2) If it was inevitable, should we live with the resulting costs, or bite the bullet and repeal antidiscrimination laws in the private economy? This Article discusses considerations pertinent to such answers

Expectation, Reliance, and the Two Contractual Wrongs

Expectation and reliance are concepts that continue to vie for priority as core organizing principles of contract law. The expectation and reliance interests appear to differ from each other both in how they conceptualize the essential wrong alleged in contract litigation and in how they would propose to remedy that wrong. Expectation views the wrong as the breaking of a promise, and seeks to remedy that wrong by awarding specific or substitutionary relief that will give the promisee the benefit of that promise.\u27 Reliance views the wrong as the making of a promise that induced the promisee to change her position to her detriment, and seeks to remedy that wrong by restoring the plaintiff to the position she would have occupied had the defendant not made her promise

Ribeiro on Mill\u27s Harm Principle

Ribeiro’s article is broadly sympathetic to Mill’s harm principle. However, it argues that there is no one conclusive argument in its favor. Rather, there are a plurality of different arguments that all lend strength to Mill’s general conclusion, at least in particular categories of cases. The Article begins by noting that the harm principle is not limited to criminalization. In various ways short of criminalization, the law seems to prefer some ways of life over others on what seem to be paternalistic or moralistic grounds rather than any kind of obvious harm the actors are doing to other people. We don’t ban cigarettes, but we do tax them. We don’t punish atheists, but it is religions that get a tax deduction. We don’t ban pornography, but we affirmatively subsidize the arts and not pornography. Some states don’t ban surrogacy arrangements, but they won’t enforce surrogacy contracts either