Rules of Law, Laws of Science
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Roscoe Pound-The Judge
January, x942 ROSCOE POUND-THE JUDGE HAROLD GILL REUSCHLEIN t "Experience made him sage" -John Gay' To Roscoe Pound was given an invaluable experience rarely granted to a legal philosopher and teacher, 2 the experience afforded by a position upon a judicial tribunal of high rank. In April i9oi the Supreme Court of the State of Nebraska, then consisting of a chief jus- tice and two judges,3 found itself confronted with a docket hopelessly in arrears. The legislature, coming to the aid of the court, created the Nebraska Supreme Court Commission.4 Nine commissioners were appointed by unanimous vote of the supreme court to prepare and submit opinions in over fifteen hundred cases which had accumulated in the court. The commissioners were organized into three "depart- ments" each consisting of three members, one of whom served as chairman of his department. Appointed as one of the original commissioners, Roscoe Pound, was assigned to the "Second Department".5 During Pound's tenure as a commissioner, the members of the supreme court itself wrote almost no opinions. As the (locket was called, the cases were assigned equally to the departments and the chairman of each department re- assigned these cases to its members. There followed the usual hearing, t A. B., 1927, University of Iowa; LL. B., 1933, Yale University; J. S. D., 1934, Cornell University; Professor of Law, Georgetown University; author of Aludminum and Monopoly: A Phase of an Uisolved Problem (1939) 87 U. OF PA. L. REV. 509; Municipal Debt Readjustment: Present Relief and Future Policy (1938) 23 CORN. -
The Virtue of Vulnerability
THE VIRTUE OF VULNERABILITY Nathalie Martin* My vulnerability to my own life is irrefutable. Nor do I wish it to be otherwise, As vulnerability is a guardian of integrity. Anne Truitt, sculptor and psychologist Ten years ago, vulnerability scholar Martha Fineman began examining how vulnerability connects us as human beings and what the universal human condition of vulnerability says about the obligations of the state to its institutions and individuals.1 Central to Fineman’s work is recognition that vulnerability is universal, constant, and inherent in the human condition.2 Fineman has spent the past decade examining how structures of our society will manage our common vulnerabilities, in hopes of using these vulnerabilities to move society toward a new vision of equality.3 While Fineman focuses on how vulnerability can transform society as a whole, here I examine the role of vulnerability in transforming individual relationships, particularly the attorney-client relationship. I argue that lawyers can benefit greatly by showing their vulnerabilities to clients. As a common syllogism goes, “All men are mortal. Socrates is a man. Therefore, Socrates is mortal.”4 Similarly, we could say that a particular * I am grateful for Nancy Huffstutler, who first brought the virtue of vulnerability into my conciseness, to my colleagues Jennifer Laws and Ernesto Longa for their fine research assistance, my friend John Brandt for teaching me what doctors know about vulnerability, for my friends Jenny Moore and Fred Hart, and my beautiful husband Stewart Paley. I also thank my wonderful editor, William Dietz. 1. Martha A. Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 YALE J.L. -
Some Thoughts About Natural Law
Some Thoughts About Natural Law Phflip E. Johnsont My first task is to define the subject. When I use the term "natural" law, I am distinguishing the category from other kinds of law such as positive law, divine law, or scientific law. When we discuss positive law, we look to materials like legislation, judicial opinions, and scholarly anal- ysis of these materials. If we speak of divine law, we ask if there are any knowable commands from God. If we look for scientific law, we conduct experiments, or make observations and calculations, in order to come to objectively verifiable knowledge about the material world. Natural law-as I will be using the term in this essay-refers to a method that we employ to judge what the principles of individual moral- ity or positive law ought to be. The natural law philosopher aspires to make these judgments on the basis of reason and human nature without invoking divine revelation or prophetic inspiration. Natural law so defined is a category much broader than any particular theory of natural law. One can believe in the existence of natural law without agreeing with the particular systems of natural law advocates like Aristotle or Aquinas. I am describing a way of thinking, not a particular theory. In the broad sense in which I am using the term, therefore, anyone who attempts to found concepts of justice upon reason and human nature engages in natural law philosophy. Contemporary philosophical systems based on feminism, wealth maximization, neutral conversation, liberal equality, or libertarianism are natural law philosophies. -
Scientific Explanation
Scientific Explanation Michael Strevens For the Macmillan Encyclopedia of Philosophy, second edition The three cardinal aims of science are prediction, control, and expla- nation; but the greatest of these is explanation. Also the most inscrutable: prediction aims at truth, and control at happiness, and insofar as we have some independent grasp of these notions, we can evaluate science’s strate- gies of prediction and control from the outside. Explanation, by contrast, aims at scientific understanding, a good intrinsic to science and therefore something that it seems we can only look to science itself to explicate. Philosophers have wondered whether science might be better off aban- doning the pursuit of explanation. Duhem (1954), among others, argued that explanatory knowledge would have to be a kind of knowledge so ex- alted as to be forever beyond the reach of ordinary scientific inquiry: it would have to be knowledge of the essential natures of things, something that neo-Kantians, empiricists, and practical men of science could all agree was neither possible nor perhaps even desirable. Everything changed when Hempel formulated his dn account of ex- planation. In accordance with the observation above, that our only clue to the nature of explanatory knowledge is science’s own explanatory prac- tice, Hempel proposed simply to describe what kind of things scientists ten- dered when they claimed to have an explanation, without asking whether such things were capable of providing “true understanding”. Since Hempel, the philosophy of scientific explanation has proceeded in this humble vein, 1 seeming more like a sociology of scientific practice than an inquiry into a set of transcendent norms. -
Two Concepts of Law of Nature
Prolegomena 12 (2) 2013: 413–442 Two Concepts of Law of Nature BRENDAN SHEA Winona State University, 528 Maceman St. #312, Winona, MN, 59987, USA [email protected] ORIGINAL SCIENTIFIC ARTICLE / RECEIVED: 04–12–12 ACCEPTED: 23–06–13 ABSTRACT: I argue that there are at least two concepts of law of nature worthy of philosophical interest: strong law and weak law . Strong laws are the laws in- vestigated by fundamental physics, while weak laws feature prominently in the “special sciences” and in a variety of non-scientific contexts. In the first section, I clarify my methodology, which has to do with arguing about concepts. In the next section, I offer a detailed description of strong laws, which I claim satisfy four criteria: (1) If it is a strong law that L then it also true that L; (2) strong laws would continue to be true, were the world to be different in some physically possible way; (3) strong laws do not depend on context or human interest; (4) strong laws feature in scientific explanations but cannot be scientifically explained. I then spell out some philosophical consequences: (1) is incompatible with Cartwright’s contention that “laws lie” (2) with Lewis’s “best-system” account of laws, and (3) with contextualism about laws. In the final section, I argue that weak laws are distinguished by (approximately) meeting some but not all of these criteria. I provide a preliminary account of the scientific value of weak laws, and argue that they cannot plausibly be understood as ceteris paribus laws. KEY WORDS: Contextualism, counterfactuals, David Lewis, laws of nature, Nancy Cartwright, physical necessity. -
Ast#: ___Science Knowledge Study Guide Physical
Name: ______________________________ Pd: ___ Ast#: _____ Science Knowledge Study Guide Physical Science Honors Provide a short response to the following prompts. 1. Describe how scientific knowledge is affected by new evidence (if the new evidence does NOT support the current understanding). Scientific knowledge grows and changes as new evidence is uncovered. 2. What is scientific knowledge built from? (list 3 things) Continuous testing and observation Debate (argumentation) All contribute to the EMPIRICAL EVIDENCE Confirmation (repetition & replication) 3. Why is it important that we use phrases such as “the results suggest…” or “the evidence supports…” rather than using words such as “prove” or “proof”? Using words such as “prove” violate the tentative nature of science. They imply that scientific knowledge is concrete and unchanging. However, scientific knowledge must remain open to change. 4. Under what circumstances will a scientific theory become a law? Explain. A scientific theory will NEVER become a scientific law; it cannot, nor is it supposed to. A scientific theory and a scientific law are two different things with different purposes (an apple will never become an orange). 5. Why are scientific theories rarely discarded (completely abandoned), even when new evidence doesn’t fit within the current theory? Scientific theories are rarely completely discarded because they are heavily-tested and well-supported explanations. It is rare that new evidence completely invalidates a theory; rather, it is more likely that the theory can be “tweaked” or changed slightly to accommodate the new evidence. 6. What represents the BEST explanation that science can offer? Scientific theories represent the best explanations science has to offer. -
State Courts and Federalism in the 1980'S: Comment
William & Mary Law Review Volume 22 (1980-1981) Issue 4 National Center for State Courts Marshall-Wythe School of Law Symposium on Article 9 "State Courts and Federalism in the 1980's" May 1981 State Courts and Federalism in the 1980's: Comment Ruggero J. Aldisert Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Jurisdiction Commons Repository Citation Ruggero J. Aldisert, State Courts and Federalism in the 1980's: Comment, 22 Wm. & Mary L. Rev. 821 (1981), https://scholarship.law.wm.edu/wmlr/vol22/iss4/9 Copyright c 1981 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr STATE COURTS AND FEDERALISM IN THE 1980's: COMMENT RUGGERO J. ALDISERT* Each of the four highly analytical, uniformly thoughtful and stimulating papers that are the subject of these comments deserves an exhaustive commentary. My role is not to respond in kind by setting forth an essay of my own, but to react informally to the intellectual feast so temptingly displayed in the preceding pages. My reaction is, of necessity, personal and unabashedly influenced by my experience, and, therefore, these contentions are intuitive rather than conclusive. Moreover, my reaction is probably atypical because it is colored (or shall I say jaundiced?) by twenty years in the state and federal judiciary and about a dozen years of intimate involvement in continuing education programs for state and fed- eral appellate judges. My experience prevents me from looking upon state and federal courts as inanimate institutions, or state and federal judges as faceless dancers in a bloodless ballet. -
Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability
Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability EDMUND URSIN* TABLE OF CONTENTS I. INTRODUCTION .................................................................................................. 538 II. SETTING THE STAGE: TORT AND CONSTITUTIONAL LAW AT THE TURN OF THE TWENTIETH CENTURY ............................................................................ 545 III. HOLMES AND THE PATH OF THE LAW ................................................................. 550 A. Holmes and the Need for Judicial Creativity in Common Law Subjects ............................................................................................ 550 B. The Path Not Followed ............................................................................ 554 IV. THE INDUSTRIAL ACCIDENT CRISIS, THE WORKERS’ COMPENSATION SOLUTION, AND A CONSTITUTIONAL CONFRONTATION ....................................... 558 A. The Industrial Accident Crisis and the Workers’ Compensation Solution ............................................................................ 558 * © 2013 Edmund Ursin. Professor of Law, University of San Diego School of Law. Thanks to Richard Posner for valuable comments on an earlier draft of this Article and to Roy Brooks and Kevin Cole for always helpful comments on previous articles upon which I expand in this Article. See Edmund Ursin, Clarifying the Normative Dimension of Legal Realism: The Example of Holmes’s The Path of the Law, 49 SAN DIEGO L. REV. 487 (2012) [hereinafter Ursin, Clarifying]; -
Ross and Olivecrona on Rights
Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2009 Ross and Olivecrona on Rights Brian H. Bix University of Minnesota Law School, [email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Brian H. Bix, Ross and Olivecrona on Rights, 34 AUSTL. J. LEG. PHIL. 103 (2009), available at https://scholarship.law.umn.edu/faculty_articles/211. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Ross and Olivecrona on Rights BRIAN H. BIX1 Introduction The Scandinavian legal realists, critically-inclined theorists from Denmark, Norway, and Sweden, who wrote in the early and middle decades of the 20t century,2 are not as widely read as they once were in Britain, and they seemed never to have received much attention in the United States. This is unfortunate, as the work of those theorists, at their best, is as sharp in its criticisms and as sophisticated philosophically as anything written by the better known (at least better known in Britain and the United States) American legal realists, who were writing at roughly the same time. The focus of the present article, Alf Ross and Karl Olivecrona, were arguably the most accessible of the Scandinavian legal realists, with their clear prose, straight- forward style of argumentation, and the availability of a number of works in English. -
THE SCIENTIFIC METHOD and the LAW by Bemvam L
Hastings Law Journal Volume 19 | Issue 1 Article 7 1-1967 The cS ientific ethoM d and the Law Bernard L. Diamond Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Bernard L. Diamond, The Scientific etM hod and the Law, 19 Hastings L.J. 179 (1967). Available at: https://repository.uchastings.edu/hastings_law_journal/vol19/iss1/7 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. THE SCIENTIFIC METHOD AND THE LAW By BEmVAm L. DIivmN* WHEN I was an adolescent, one of the major influences which determined my choice of medicine as a career was a fascinating book entitled Anomalies and Curiosities of Medicine. This huge volume, originally published in 1897, is a museum of pictures and lurid de- scriptions of human monstrosities and abnormalities of all kinds, many with sexual overtones of a kind which would especially appeal to a morbid adolescent. I never thought, at the time I first read this book, that some day, I too, would be an anomaly and curiosity of medicine. But indeed I am, for I stand before you here as a most curious and anomalous individual: a physician, psychiatrist, psychoanalyst, and (I hope) a scientist, who also happens to be a professor of law. But I am not a lawyer, nor in any way trained in the law; hence, the anomaly. The curious question is, of course, why should a non-lawyer physician and scientist, like myself, be on the faculty of a reputable law school. -
Judicial Process As an Empirical Study: a Comment on Justice Brennan’S Essay
Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Articles Faculty 1988 Judicial Process as an Empirical Study: A Comment on Justice Brennan’s Essay Charles M. Yablon Benjamin N. Cardozo School of Law, [email protected] Follow this and additional works at: https://larc.cardozo.yu.edu/faculty-articles Part of the Law Commons Recommended Citation Charles M. Yablon, Judicial Process as an Empirical Study: A Comment on Justice Brennan’s Essay, 10 Cardozo Law Review 149 (1988). Available at: https://larc.cardozo.yu.edu/faculty-articles/208 This Article is brought to you for free and open access by the Faculty at LARC @ Cardozo Law. It has been accepted for inclusion in Articles by an authorized administrator of LARC @ Cardozo Law. For more information, please contact [email protected], [email protected]. JUDICIAL PROCESS AS AN EMPIRICAL STUDY: A COMMENT ON JUSTICE BRENNAN'S ESSAY Charles M. Yablon* I. LOOKING AT WHAT JUDGES ACTUALLY DO One of the enduring accomplishments of the Legal Realist move ment was to shift at least some of the attention of academic lawyers away from their favorite occupation—telling judges what to do—and to get them to consider what it is that judges actually do. The genera tion of legal scholars who immediately preceded the Realists had at tacked the formalism of judicial decisionmaking, criticizing judges for mechanically applying formal rules without considering social needs or public policy.' The Realists, while sympathetic to this prescriptive claim about the proper role of judges, added to it a descriptive claim, that judges did not in fact decide cases through mechanical applica tion of general rules, that such formal rules were indeterminate at the level of practice, and did not yield certainty or predictable results.^ Certainty and predictability, to the extent they existed in the legal system, were the product of the "personality of the judge," not the • Professor of Law, Benjamin N. -
New Legal Realism at Ten Years and Beyond Bryant Garth
UC Irvine Law Review Volume 6 Article 3 Issue 2 The New Legal Realism at Ten Years 6-2016 Introduction: New Legal Realism at Ten Years and Beyond Bryant Garth Elizabeth Mertz Follow this and additional works at: https://scholarship.law.uci.edu/ucilr Part of the Law and Philosophy Commons Recommended Citation Bryant Garth & Elizabeth Mertz, Introduction: New Legal Realism at Ten Years and Beyond, 6 U.C. Irvine L. Rev. 121 (2016). Available at: https://scholarship.law.uci.edu/ucilr/vol6/iss2/3 This Foreword is brought to you for free and open access by UCI Law Scholarly Commons. It has been accepted for inclusion in UC Irvine Law Review by an authorized editor of UCI Law Scholarly Commons. Garth & Mertz UPDATED 4.14.17 (Do Not Delete) 4/19/2017 9:40 AM Introduction: New Legal Realism at Ten Years and Beyond Bryant Garth* and Elizabeth Mertz** I. Celebrating Ten Years of New Legal Realism ........................................................ 121 II. A Developing Tradition ............................................................................................ 124 III. Current Realist Directions: The Symposium Articles ....................................... 131 Conclusion: Moving Forward ....................................................................................... 134 I. CELEBRATING TEN YEARS OF NEW LEGAL REALISM This symposium commemorates the tenth year that a body of research has formally flown under the banner of New Legal Realism (NLR).1 We are very pleased * Chancellor’s Professor of Law, University of California, Irvine School of Law; American Bar Foundation, Director Emeritus. ** Research Faculty, American Bar Foundation; John and Rylla Bosshard Professor, University of Wisconsin Law School. Many thanks are owed to Frances Tung for her help in overseeing part of the original Tenth Anniversary NLR conference, as well as in putting together some aspects of this Symposium.