Law & Society Blog

Does the following sentence strike you as odd? “It’s a fact that the law says: you should pay damages to anyone whom you harm by negligently violating a legal duty.” If you are like me, you will answer: yes and no.
First, there is nothing odd about that sentence if you are reading a guidebook for […]

The recent policy of randomly searching subway passengers pushes the limits of symbolic political action (once again) into the realm of the patently absurd. Why would an attacker ever submit to a search if the search is essentially voluntary? He would either say, “no thanks,” and walk away, or blow himself up right there in […]

Preventive and retributive theories frame the issue of crime and punishment differently. Certain conduct or states of affairs are labeled a threat, in order to justify protective measures. Framing the state of affairs as the result of a culpable action, however, means disapproval of that action. Our relative freedom in framing or modeling states of […]

There have been two previous posts here discussing Brian Tamanaha’s article on the Pervasive Perils of Legal Instrumentalism. The first dealt with the transition from hidden to explicit instrumentalism, and the second dealt with the historical development of instrumentalist views of the law. I’d like to add a third post to make two quick observations: […]

In Moral Values and Market Attitudes, Wayne Baker and Melissa Forbes (both University of Michigan) explore how moral values influence market behavior. Not surprisingly, that influence is pervasive. For example, a nationalist is more likely to boycott foreign products than a non-nationalist. (Of course, once expressing one’s values through the market becomes too inconvenient, we […]

Retributive fairness or “benefit and burden” theories of punishment start from the assumption that individuals seek to achieve certain goals and that they generally choose reasonably efficient means to do so. Some goals can be achieved unilaterally, others are pursued more efficiently through cooperation with others. Enter society as a cooperative venture. The participants agree […]

Is the indefinite detention of enemy combatants unfair? According to Eugene Volokh, it is not. At least, he writes, the arguments commonly advanced to buttress claims of unfairness are unconvincing. I don’t want to take issue with Volokh’s factual propositions, many of which I believe to be wrong, for example, that people who fight against […]

In response to a recent post by Hanno Kaiser, in which Hanno argued that the Supreme Court overpowers the law (see also this follow-up), Daniel Solove over at Balkanization has this to say:
In reality, the Supreme Court doesn’t wield a lot of power. Its bark is far louder than its bite has ever been. […]

Retributive punishment presupposes the existence of a moral community. By moral community I mean a social arrangement that makes moral values real. Moral qualities, qua moral qualities, have no causal power. Yet they are recognizable, either as absolutes or as social conventions. Moral communities create (or detect), observe, and act because of the moral quality […]

In response to my thoughts on the historical context of Formalism and Instrumentalism, I received the following interesting question about Karl Friedrich von Savigny (1779 - 1861) and Rudolph von Jhering (1818 - 1892): Can Savigny be seen as a formalist and Jhering as an instrumentalist? Jhering’s famous work Der Zweck im Recht (1877 - […]