bluuebunny/crossref_metadata_2025_split huggingface dataset:
Reconsidering the Relationship among Voluntary Acts, Strict Liability, and Negligence in Criminal Law
Authors: Alexander Larry 
Published: January 2009

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists.In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. (I omit consideration of criminal laws premised on immoral norms.) I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability.
The Gender Question in Criminal Law
Authors: Schulhofer Stephen J. 
Published: January 2009

Over the past decade, both the doctrine and the practice of criminal law have come under intensely critical review by feminist scholars and reformers. The territory under reexamination by or because of feminists spans the problems of women as witnesses, defendants, and prisoners in the criminal justice system; it extends to the situation of women as potential victims and offenders in diverse offense circumstances. Crimes in which the defendant or victim is typically female (e.g., prostitution, rape) are predictable subjects of feminist concern, but attention has extended as well to the dynamics of women's experience (arguably distinctive and certainly neglected) in connection with such offenses as assault, shoplifting, drug offenses, and even armed robbery.Feminist criticism and reform efforts have focused for the most part at the level of specific rules or particular areas of practice. In this paper I want to comment on the structure of the feminist critique and to compare its underlying assumptions to those of criminal law as it has been traditionally understood and practiced. In at least some of its prominent versions, feminism entails orientations and commitments incompatible with those of the received criminal law tradition. To the extent that this is true, criminal law, constructed and expounded almost exclusively by males, can fairly be characterized (descriptively) as “sexist” or at least “gendered” (that is, male-oriented) in its core assumptions. Moving to normative ground, I suggest that if the descriptive claims of the feminist movement are true to any substantial extent, then criminal law – conceived in terms seemingly uncongenial to a large part of our population – would require thorough reexamination.
Positive Retributivism
Authors: Ten C. L. 
Published: January 2009

One dark and rainy night, Yuso sexually assaults and tortures Zelan. In escaping from the scene of his crime, he falls heavily and becomes an impotent paraplegic. Instead of treating his fate as divine retribution for his wicked acts, Yuso sees it as sheer bad luck. He shows no remorse for what he has done, and vainly hopes that he will recover his powers, which he now treats as involuntarily hoarded resources to be used on less rainy days. In the presence of others, he pretends that he has turned over a new leaf. He asks for religious and educational books, hoping (he tells everyone) to make up for his poor education and deprived social background. But he immediately discards them when he is alone in favor of the pornographic magazines which he has bribed a nurse to smuggle in for him. His deception and various obscene acts committed in the hospital are exposed; by the time he comes up for trial, everyone knows that he is still a lustful, sadistic, and unrepentant man.Most retributivists have a sufficient justification for punishing Yuso independently of the social consequences of his punishment. Two features of the case might cause some difficulties. First, Yuso has already experienced considerable suffering and deprivation both before and after his crime, and retributivists might disagree about the relevance of the suffering to his punishment. Secondly, Yuso is unrepentant, and it is unlikely that punishment will change him. This might, as we shall see, create a problem for those who think that the justifying aim of punishment is the moral reform of the offender.
Liberty and Equality: How Politics Masquerades as Philosophy
Authors: Hare R. M. 
Published: January 2009

It is my intention in this paper to highlight the dangers which arise when people appeal to moral intuitions to settle questions in political, and in general in applied, philosophy. But first I want to ask why all or nearly all of us are in favour both of liberty and of equality – why all our intuitions are on their side.In the case of liberty it is easy to understand why. Although philosophers have held diverse theories about the concept of liberty – theories which have been drawn together into two main groups in a famous lecture by Sir Isaiah Berlin – there cannot be much doubt that in the mind of the ordinary man to have liberty (to be free; I shall not distinguish between freedom and liberty) is to be under no constraint in doing what one wants to do. This, at any rate, is a main constituent of the concept of liberty as all of us understand it.Since, therefore, it seems self-evidently true that we want to be able to do what we want, we are bound to want liberty and, in general, to be in favour of it. We want it for ourselves; if we universalize our prescriptions, this constrains us to be in favour of it for others as well. That explains why, if any politician can claim that he is fighting for liberty, he is likely to win a large following.In the case of equality the matter is not so clear cut.
Some Thoughts on Liberty, Equality, and Tocqueville's Democracy in America
Authors: Dannhauser Werner J. 
Published: January 2009

1. In praise of Tocqueville. The young United States was lucky – and deserving of its luck – to find as profound an interpreter of its principles as Alexis de Tocqueville (1805–1859). So deeply, so philosophically, did he comprehend this country in Democracy in America1 that today's reflections on liberty and equality in America either copy Tocqueville or fall short of understanding. The following reflections will be guilty of both plagiarism and superficiality but they do intend to capture something of Tocqueville's spirit. He gave this nation its due. He brought to his endeavors some advantages we no longer enjoy. For example, he had first-hand experience of democracy's great alternative and predecessor, aristocracy; he knew both sides because he was both sides.Of course, some advantages accrue to those of us who have come after him, even apart from having Democracy in America to study. The United States may not be old but it is older now; we can take later developments into account. Thus, we no longer lack poets or poetry; we probably suffer as much from crime as from vice; and juries do not function all that well. But no dwarfish ability to climb the shoulders of a giant nor special dispensation from history can compensate us for the lack of Tocqueville's genius: the breadth of vision that recalls Montesquieu and even Aristotle, an intimacy, reminiscent of Rousseau, with modernity's demons, a sad coming to terms with human contingency that puts one in mind of Thucydides. All honor to Alexis de Tocqueville.
Ethics and Stochastic Processes
Authors: Hardin Russell 
Published: January 2009

There is some irony, and perhaps a bit of gallows humor, in opening a paper in this volume with the claim that “applied ethics” is a misnomer. Yet that claim is true in the following sense. What we need for most of the issues that have sparked the contemporary resurgence of moral and political theory is not the application of ethics as we know it, but the revamping of ethics to make it relevant to the issues we face. It is in our concern with major policy programs that ethics and political philosophy are most commonly rejoined to become a unified enquiry after a nearly complete separation through most of this century. Yet, ethical theories may be shaken to their foundations by our effort to apply them to policy problems. I do not propose to revamp ethics here, but only to show that much ethical theory cannot readily be applied to major policy problems.There are at least three important characteristics of major policy issues in general that may give traditional moral theories difficulties. First, such issues can generally be handled only by institutional intervention; they commonly cannot be resolved through uncoordinated individual action. Theories formulated at the individual level must therefore be recast to handle institutional actions and possibilities. Second, major policy issues typically have complicating strategic interactions between individuals at their bases. Third, they are inherently stochastic in the important sense that they affect large numbers with more or less determinable (or merely guessable) probabilities. C. H. Waddington calls such issues instances of “the problem of the ethics of stochastic processes.”
What are Civil Rights?
Authors: Weinreb Lloyd L. 
Published: January 2009

For all the discussion and debate about civil rights, it is striking how little attention is given initially to the question of what civil rights are. There is no well-understood principle of inclusion or exclusion that defines the category. Nor is there an agreed list of civil rights, except perhaps a very short, avowedly nonexhaustive one, with rather imprecise entries. Yet, if the extension of the category of civil rights is uncertain, its significance is not. All agree that it is a principal task of government to protect civil rights, so much so, indeed, that a failure to protect them usually is regarded as outweighing substantial achievements of other kinds. But a right does not count as a civil right just because it is valuable or valued. Some of the rights most often asserted as civil rights reflect practical interests of their possessors considerably less than other actual or potential rights not so identified.In the United States, familiar legal doctrine provides a shortcut to the specification of civil rights. They are whatever is embraced by the provisions of the federal Civil Rights Acts: the right to vote, fair housing, equal employment opportunity, and so forth. That path, however, is not adequate for the present purpose. For the most part, the statutes refer explicitly or implicitly to federal constitutional rights, and the collective reference to them as civil rights is unexplained. The bases of the constitutional rights are too various to be a reliable guide to an independently designated category of civil rights.
Two Conceptions of Civil Rights
Authors: Epstein Richard A. 
Published: January 2009

I.WhatVintage ofCivilRights?In this paper I wish to compare and contrast two separate conceptions of civil rights and to argue that the older, more libertarian conception of the subject is preferable to the more widely accepted version used in the modern civil rights movement. The first conception of civil rights focuses on the question of individual capacity. The antithesis of a person with civil rights is the slave. But even if individuals are declared free, they are nonetheless denied their civil rights if they are unable to own property, to enter into contracts, to make wills, to give evidence, and to sue (and be sued) in courts. With all these civil rights claims, the target of the individual grievance is the state; it has denied large classes of individuals the formal capacities that it recognized and protected in others. The Civil War was fought largely over slavery. In its aftermath, civil rights claims protecting individual capacity received explicit, if imperfect, statutory and constitutional protection. The postbellum protections didnotguarantee these rights in absolute fashion – that is, in a way that would not be susceptible to abridgment under any circumstances. Instead, civil rights were protected in what might be called a relative fashion: whatever rights of this sort were enjoyed by white citizens were to be enjoyed by the newly freed black citizens as well.
Plural but Equal: Group Identity and Voluntary Integration
Authors: Roback Jennifer 
Published: January 2009

During this period, when disciples were growing in number, a grievance arose on the part of those who spoke Greek, against those who spoke the language of the Jews; they complained that their widows were being overlooked in the daily distribution.When Americans think of ethnic conflict, conflict between blacks and whites comes to mind most immediately. Yet ethnic conflict is pervasive around the world. Azerbijanis and Turks in the Soviet Union; Catholics and Protestants in Northern Ireland; Arabs and Jews in the Middle East; Maoris and English settlers in New Zealand; Muslims and Hindus in India and Pakistan; French and English speakers in Quebec; Africans, Afrikaaners, and mixed-race people in South Africa, in addition to the tribal warfare among the Africans themselves: these are just a few of the more obvious conflicts currently in the news. We observe an even more dizzying array of ethnic conflicts if we look back just a few years. Japanese and Koreans; Mongols and Chinese; Serbs and Croats; Christians and Buddhists in Viet Nam: these ancient antagonisms are not immediately in the news, but they could erupt at any time. And the history of the early Christian Church recounted in the Acts of the Apostles reminds us that suspicion among ethnic groups is not a modern phenomenon; rather, it is ancient.The present paper seeks to address the problem of ethnic conflict in modern western democracies. How can our tools and traditions of participatory governments, relatively free markets, and the common law contribute to some resolution of the ancient problems that we find within our midst? In particular, I want to focus here on the question of ethnic integration.
Rights to Compensation
Authors: O'Neill Onora 
Published: January 2009

Rights to compensation are much invoked and much disputed in recent liberal debates. The disputes are generally about supposed fundamental (natural, human or moral) rights to compensation, whose recognition and legal enactment would transform some lives. For example, special treatment in education or employment are claimed as compensation for past denials of equal opportunity; special consideration for Third World countries in aid and trade terms is claimed as compensation for the injustices of the colonial past.We can make ready sense of the idea of legal rights to compensation. Legal rights to compensation guarantee (some) recompense for damage suffered. The damage for which compensation is given may or may not be produced by wrongdoing; it may also be negligent or accidental or due to natural causes. In law, compensation is not always contingent upon the victim having suffered injury as well as harm, nor upon saddling a wrong-doer with the costs of compensation. Insurance policies standardly cover damage due to accident and neglect. Legal rights to compensation may provide for payments to victims of violent crime, to those whose property is requisitioned or damaged, to victims of libel or malpractice, and even to victims of natural disasters such as floods or earthquakes. Legal rights to compensation are a standard way of dealing with the predicament of those who become victims, whether of others' (criminal) action, of their own negligence, or of natural catastrophe.None of this shows that there are fundamental rights to compensation. Legal rights to compensation may lack moral grounding: and if they are morally grounded, they may rest not on fundamental rights to compensation, but on background positions in which rights are derivative or inessential.
Real Equality of Opportunity
Authors: Gross Barry R. 
Published: January 2009

We are often told that we are morally obligated to produce equal opportunity for all. Therefore, it seems we should examine what power we have to produce that desirable state. For it would be nonsense to say we are required to provide what is beyond our power to provide. When we examine this question, we find our power limited by two sets of constraints. One set comprises formal constraints upon the idea itself of equal opportunity. We cannot do the logically impossible. The other set comprises limits upon our ability to produce the directed socio-economic change, getting known outputs for known inputs. I illustrate the formal constraints by outlining the work of Douglas Rae. The constraints upon our abilities I illustrate with evidence from sociology and politics. At the end, we shall discover that our power to make opportunities equal is sharply though not unbearably limited. A critical but unbaised survey will reveal that in the past fifty years we have gone remarkably far towards doing all that we are presently capable of doing to equalize opportunities. Perhaps we shall go even farther when we learn how.The word ‘real’ in the title is opposed to ‘ideal’ or even ‘chimerical'. It may seem an interesting question what equality of opportunity should consist in were we able to produce directed socio-economic change at will. But we are not. Therefore, a more interesting and more important question is what equality of opportunity consists in given the very large number of constraints within which we must work to achieve it.
Global Equality of Opportunity and National Integrity
Authors: Boxil Bernard R. 
Published: January 2009

Philosophers have long distinguished various interpretations of the principle of equal opportunity and argued over their implications and justifications. But they have almost always tacitly assumed that the context was a national one. They have not, in particular, considered whether some interpretation of the principle could apply and be justified globally, that is, to all people without regard to their nationality or citizenship. Yet, such an investigation is clearly demanded. The leading moral theories seem to support a case for at least some interpretation of the equal opportunity principle, and it is not obvious that they can support it only domestically.Consider, first, those moral theories which place great value on negative liberty, for example, libertarianism. Libertarianism supports a standard interpretation of the equal opportunity principle – “formal” equality of opportunity; formal equality of opportunity requires that legal restrictions j on the taking of opportunities be lifted, and such restrictions diminish negative liberty. But libertarianism would also seem to support a global. version of formal equality of opportunity, for example, that laws be rescinded which require that candidates for jobs in a country be citizens of that country, or which restrict emigration or immigration. Such laws also diminish negative liberty.Or consider those moral theories which place great value on efficiency, for example, utilitarianism. Utilitarianism probably supports formal equality of opportunity because legal restrictions on the taking of opportunity not only diminish negative liberty, but also often prevent talent and skill from going where it can best be used and thus reduce efficiency.
Discrimination and Income Inequality
Authors: O'Neill June Ellenoff 
Published: January 2009

Discrimination against particular groups has existed throughout history and in all types of societies. Few would challenge the idea that inequality of income based on discrimination is unjust. The more problematic issues are the extent to which discrimination is in fact a significant source of inequality and whether such discrimination-based inequality is inherent in a capitalist system.There is little doubt that discrimination can affect a group's income. But the link is by no means automatic or certain. Thus, the incomes of blacks, particularly in past decades, seem surely to have been lowered by discrimination. Yet other examples are less clear. Jewish and Japanese Americans, for instance, have had incomes substantially above those of white non-Jewish groups, despite evidence of discrimination against them.
Why Should We Care about Group Inequality?
Authors: Loury Glenn C. 
Published: January 2009

This essay is about the ethical propriety and practical efficacy of a range of policy undertakings which, in the last twenty years, has come to be referred to as “affirmative action.” These policies have been contentious and problematic, and a variety of arguments have been advanced in their support. Here I try to close a gap, as I see it, in this “literature of justification” which has grown up around the practice of preferential treatment. My principal argument along these lines is offered in the next section. I then consider how some forms of argument in support of preferential treatment, distinctly different from that offered here, not only fail to justify the practice but, even worse, work to undermine the basis for cooperation among different ethnic groups in the American democracy. Finally, I observe that as a practical matter the use of group preference can, under circumstances detailed in the sequel, produce results far different from the egalitarian objectives which most often motivate their adoption.It may seem fatuous in the extreme to raise as a serious matter, in the contemporary United States, the question “Why should we care about group inequality?” Is not the historical and moral imperative of such concern self-evident? Must not those who value the pursuit of justice be intensely concerned about economic disparities among groups of persons? The most obvious answer to the title question would seem, then, to be: “We should care because such inequality is the external manifestation of the oppression of individuals on the basis of their group identity.”