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Abstract:
In this paper I first explicate and then critically compare and contrast the political philosophies of Giorgio Agamben and Jacques Derrida. Their writings intersect at a number of crucial issues and texts, sometimes lightly touching, sometimes crossing at the same point, going, so to speak, in different directions, and thus often resembling each other without, however, there being an actual identity of viewpoint. The differences, although sometimes subtle, are real. My thesis is that, subtle though these intersections and differences are, they reveal two incompatible yet inextricable axes of contemporary political thought, blueprints of the competing visions of the political between which, for the foreseeable future, the most advanced philosophical thinking on the political will have to choose. Here, by way of an organizing principle, I attempt to show that these axes can be articulated around two ways of inheriting Nietzsche's intellectual legacy -- one that interprets the essence of political action in fundamentally ontological terms (Agamben), and the other that interprets it as fundamentally ethical (Derrida).

Agamben, Derrida, the political, political philosophy, messianism, sovereignty, Schmitt

Abstract:
This is a brief review of Simon Critchley's recent book, Infinitely Demanding: Ethics of Commitment, Politics of Resistance. In it, he argues that the overriding political-philosophical problem of late modernity is the problem of political motivation. Critchley's book is both an analysis and critique of how that problem has been resolved by ethical and political philosophers since Kant and a defense of his own solution, which he derives primarily from the philosophy of Emmanuel Levinas and which issues in a call for a form of ethical anarchism. In this review I summarize his arguments and raise some critical questions about his solution, while agreeing with him about the essential nature of the problem of motivation that his book highlights.

Critchley, Simon Critchley, anarchism, Levinas, Emmanuel Levinas, ethical philosophy, political philosophy, motivation, political motivation

Abstract:
The paradoxical relationships among philosophical knowledge, ethical responsibility, legal decision, and political action were among the most persistent themes of Jacques Derrida's later writings. In this short article (presented as part of a memorial issue), I examine this aspect of his work by focusing on a structural ambiguity in his accounts of the relation of ethical responsibility to legal-political action. The narrower point of this discussion is to demonstrate how Derrida's writing exemplifies the same aporia between knowledge and ethical responsibility that it describes; the larger aim is to suggest how this ambiguity illustrates the limit of political thought in general (a limit that at the same time demands and founds the possibility of ethical-political action).

Derrida, political philosophy, ethical philosophy

Abstract:
This entry presents a very brief and somewhat polemical (for a dictionary entry, at least) discussion of the American and British Critical Legal Studies (CLS) movements from the perspective of their reliance on Continental-philosophical arguments and sources. The American movement, I argue, was marred by a lack of sophistication about these Continental sources that tended to reduce some of CLS's best-known tenets (like the inherently political nature of law and the indeterminate character of legal reasoning) to mirror images of the liberalism that was CLS's ostensible target. By the same token, in immediately reducing law to politics, American critical legal scholars overlooked entirely the philosophical category that mediates the two in contemporary Continental political philosophy (and the element that forms its actual point of distinction from liberalism): the ethical relationship. British CLS, by contrast, has retained its institutional and intellectual vitality at least in part (I argue) because of its more sophisticated incorporation of Continental-philosophical insights into its critical approaches to law.

philosophy, CLS, jurisprudence

Abstract:
This paper was written for a forthcoming Cambridge University Press anthology titled "On Philosophy in American Law" that commemorates the 75th anniversary of Karl Llewellyn's essay of the same name. Karl Llewellyn was a founder of the Legal Realist movement in American jurisprudence, and his essay is most obviously read as a brief for that movement, in which he argues that a Realist focus on underlying social needs better explains the course of American legal history than do the competing natural law, positivist and formalist schools. Without contesting the merits of this conventional reading, I argue that Llewellyn's essay also makes an implicit case for another, quite different point: the need for Continental philosophical approaches to law in contemporary American jurisprudence. In particular, I argue that the conception of philosophy upon which Llewellyn relies is, with one exception, deeply Hegelian. The one exception lies in Llewellyn's residual belief that, at least to a limited extent, philosophy can change the world as well interpret it. This belief places him squarely in the camp of post-Hegelian thinkers, the camp that also includes contemporary Continental political and legal philosophers. I conclude by suggesting how the post-Hegelian tradition responds to some of the deepest conundrums of contemporary American jurisprudence, using the problem of affirmative action as an example.

Llewellyn, Karl Llewellyn, Continental philosophy, Realism, Legal Realism, Hegel, American jurisprudence, jurisprudence

Abstract:
Over the past thirty years, Don DeLillo has become the novelist-laureate for our age of terror, exploring the inner life, cultural causes and symbolic significance of terrorism and terrorists of all stripes. He is therefore perhaps the ideal subject for a consideration of the status of literature after the disaster of September 11, 2001. Indeed, DeLillo himself published a moving essay shortly after 9/11 in which he posits cyber-capital and terrorism as competing world narratives and argues that it is left to us - writers, among others - to create the counternarrative. In this essay, I examine DeLillo's proposal through a reading of some of his recent novels against the background of Maurice Blanchot's thesis that literary writing is itself, in its essence, already terrorist. In particular, I attempt to show how DeLillo's novels suggest the affirmative possibility of a meaningful counternarrative that, without refuting Blanchot's conception of literature, still offers an (ambiguously) hopeful alternative view.

literature, terrorism, DeLillo, Blanchot, law and literature

Abstract:
Philosophers and legal theorists have traditionally analyzed capital punishment as a moral or ethical problem, by asking questions like: Is capital punishment justifiable given the utilitarian or retributive goals of the criminal justice system? Is it or can it be made consistent with our commitment to the moral autonomy and dignity of the human person? And so on. In this paper I criticize the moral-philosophical approach and argue that a far more fruitful way of analyzing the institution of the death penalty is to approach it from a political-philosophical perspective - in particular, by viewing it in its relation to the concept and practice of sovereignty that undergirds our understanding of the political state. Viewed in this way, it becomes clear that capital punishment is a component of the essential attribute of post-Westphalian political sovereignty: the sovereign's right to the death of its citizens. It is the sovereign alone that has not only the power but the right to kill for violation of its edicts, and to force its citizens to sacrifice their lives in defense of its own life through military conscription. I then show that approaching capital punishment as an essential component and expression of sovereignty provides more conceptual and practical insight into the contemporary vagaries of capital punishment than does the moral perspective.

The point of departure for this critique is the recent debate in the Stanford Law Review between Cass Sunstein and Adrian Vermeule (on one side) and Carol Steiker (on the other) on the moral legitimacy of the death penalty, a debate that illuminates both the weakness of the moral philosophical approach and the unavoidability of the relationship between capital punishment and sovereignty. After showing that, in different ways, both sides of this debate depend upon underlying conceptions of the state as (in Michel Foucault's words) the entity with "the power to exercise the right to decide life and death," I go on to explicate Foucault's notion and show that his conception of sovereignty is not novel but is in fact a shared assumption of virtually all Western philosophical approaches to the political state, from the classical social contractarianism of Locke, Hobbes and Rousseau to Carl Schmitt's decisionism to Giorgio Agamben's recent elaboration of Foucault's idea of biopolitics.

I conclude by suggesting how the sovereignty perspective sheds light on a wide range of theoretical, political, and legal-doctrinal phenomena occurring within the sphere of capital punishment today that remain entirely mysterious from the moral perspective. These include, among others, the United States's stubbornly retentioninst position in the face of the accelerating trend toward abolition among other nations, the legal-doctrinal conundrums that arise when capital defendants waive their right to defend and volunteer for execution (sometimes referred to as state-assisted suicide), and the fact that the heated controversy over the use of international law in the Supreme Court's interpretation of the United States Constitution first emerged in a capital case (Roper v. Simmons, in which the Supreme Court declared it unconstitutional to employ death as a punishment for crimes committed by juveniles).

death penalty, capital punishment, philosophy, political philosophy, moral philosophy, Foucault, sovereignty, Steiker, Sunstein, Roper v. Simmons

Abstract:
This article appears in an anthology of essays that consider the political thought of one of Europe's leading contemporary philosophers, Giorgio Agamben. Agamben is not yet well-known in the Anglo-American legal academy, but this has been changing recently with the publication of a series of books (collectively titled Homo Sacer) that address, at a unified philosophical level, some of today's most pressing problems of sovereignty, law, and politics.

In this essay I examine Agamben's political thinking by approaching it through the first-philosophical framework that underwrites it. This examination takes the form of a critique of Agamben's critique of Jacques Derrida's critique of metaphysics. Over the course of his career Agamben has consistently returned to his critique of Derrida as a point of departure for his own affirmative theses and this pattern holds true in Homo Sacer as well, justifying, I hope, this somewhat abstract point of entry into Agamben's political thought. In a nutshell, my conclusion is that in his critique one finds two competing understandings of the nature of philosophical thinking, one (Agamben's) that gives priority to the question of ontology, and the other (Derrida's) that gives priority to the question of ethics, that is, of the relation to the other.

Based on this analysis, I attempt to draw out the prescriptive consequences of this difference for the two thinkers' accounts of the political. For Agamben, what follows is a rejection of legalism tout court in favor of a total transformation in social relations that dispenses with the form of law entirely. Derrida's position, on the other hand, leads to a thoroughly (ethically) committed politics, one that accepts, however, both the legitimacy of the legal form and the appropriateness of incremental, reformist action in at least some political situations.

Finally, in the concluding section I try to bring these abstractions down to earth by showing how they play out concretely in one area of law that provides an excellent test for Agamben's political theorizing, the United States Supreme Court's current constitutional limitations on capital punishment.

Agamben, Derrida, Continental philosophy, death penalty, capital punishment

Abstract:
This article essays a brief survey of the likely impact of the Supreme Court's decision in Ring v. Arizona, which overturned most judicial death-sentencing procedures as violative of the Sixth Amendment right to a jury trial. Among the more dramatic and immediate effects of the case was a decision by a federal district court ruling the Federal Death Penalty Act unconstitutional on its face (United States v. Fell, since reversed on appeal). After first evaluating the merits of the Fell decision and other potential Ring-based objections to the Federal Death Penalty Act, the article concludes with some observations on the impact of the Ring/Apprendi line of cases on the Supreme Court's Eighth Amendment capital jurisprudence more generally, and suggests ways in which the potential conflicts that emerge cast light on Apprendi and its progeny as well.

capital punishment, death penalty, federal death penalty, Ring, Apprendi, sentencing

Abstract:
The very name of the Law and Literature movement implies some inner connection between the institutions and concepts of law on one hand and those of literature on the other. Received wisdom has it that this connection reaches its limit, however, at the point where the language of law incorporates an essential relation to the literal violence of the state. The canonical statement of this distinction (at least in the Anglo-American legal academy) is Robert Cover's claim that "judges deal pain and death... In this they are different from poets, from critics, from artists." Here I attempt to complicate this distinction through a close reading of Maurice Blanchot's essay, "Literature and the Right to Death." My thesis is that, beyond sharing law's status as linguistic artifact and cultural construct, the literary already inhabits law's ostensibly distinguishing relationship to sovereign violence.

Jurisprudence, Law and Literature, Sovereignty, Blanchot

Abstract:
This paper was published in a special issue on the federal death penalty (which I also co-edited). In it, I use the phenomenon of the federal courts' relatively recent re-entry into the world of capital trials and sentencing (as opposed to habeas corpus review) as an occasion for reconsidering the role of the Due Process Clause in the regulation of capital procedures.

In the 1990's, for the first time in the post - Furman v. Georgia era, federal judges began making the routine and largely discretionary rulings required in every criminal case in direct capital prosecutions. This change in judicial role - from post hoc evaluation of the constitutionality of a death sentence already imposed on a convicted defendant, to prospective discretionary decision that affects both the guilt/acquittal verdict and potential death sentence yet to be determined - demands a re-evaluation of the legal standards that ought to apply in this new capital context. The new constitutional question is, does death "make a difference" to these ostensibly subconstitutional rulings?

The answer is yes, for reasons that are deeply rooted in the traditions and conscience of our people. Since 1972, when the Supreme Court suddenly turned to the Eighth Amendment and its evolving standards of decency analysis as the primary mode for analyzing the legitimacy of death penalty procedures in Furman, historical analysis has played little role in the Court's capital jurisprudence. This is in stark contrast to the non-capital criminal context, in which the Supreme Court has looked increasingly to the historical treatment of criminal procedural issues at the time of the Founding in order to determine the process due today. My claim here is that a similar historical examination of the record in capital cases, neglected in the wake of Furman, reveals a broadly accepted judicial doctrine at the time of the Founding that required, in favorem vitae ("in favor of life"), that statutes imposing capital punishment be construed literally and strictly, and, more generally, an exceptional solicitousness for the procedural rights of capital defendants among common law judges. Death, it turns out, has always been different, even before the Founding - not as a matter of the Eighth Amendment's post hoc concern with the justice of the ultimate punishment imposed, but as a matter of the due process concern with the justice of the procedures afforded to a defendant who might suffer the ultimate punishment at the hands of the state.

Indeed, the differential and more favorable treatment of capital defendants at common law is the largely-forgotten root of many constitutional doctrines that we take for granted today, including, as I show by way of example, the "elements" rule of Apprendi v. New Jersey. In particular, it is the original - and originalist - justification for the "heightened reliability" requirement that the Supreme Court has imposed, often by way of lip-service, in the post-Furman era.

death penalty, capital punishment, history, federal courts, Due Process, Eighth Amendment, in favorem vitae, Apprendi

Abstract:
This essay, which appears in an anthology on the work of philosopher Drucilla Cornell, takes up Cornell's distinctive contribution to the relationship between feminism and philosophical liberalism. In recent years that relationship has been contentious, despite the facts that liberal reformers of the 19th Century were among the first to champion equal rights for women and that the main legal and political advances made by women since that time have generally been justified by reference to the liberal values of equal respect and equal treatment before the law. Since the 1970s, however, feminist critics have pointed out that the liberal presupposition of equality or sameness of legal subjects is itself oppressive when it masks real differences between these subjects that themselves demand respect, as differences, in their own right. Recent debates within feminist political theory have thus been marked by various attempts to reconcile the respect due to difference with the respect due to each without regard for difference.

Cornell's insight is that these positions can be reconciled by reorienting the feminist critique away from its focus on equality and returning instead to the earliest roots of philosophical liberalism and the priority that it grants to freedom over equality. In particular, Cornell argues that Rawls's account of political liberalism can and should be reconstructed to incorporate a concern for sexual difference by first reconceiving the Kantian notion of a sacrosanct sphere of subjective freedom. The Kantian conception of subjective freedom, she argues, which has traditionally been understood to comprise the sphere of conscience (the person's ultimate goals for her life, her fundamental associations and loyalties, and her philosophical, moral or religious beliefs about her life's meaning), must also be understood to include what Cornell calls the person's imaginary domain - the internal space in which the person imagines herself as a sexuate, embodied being. Cornell's argument is thus that the apparent stand-off between the feminist insistence on difference and the liberal insistence on equality can be overcome by reconceiving freedom as embracing both the traditional, Kantian notion of freedom of intellect and her notion of somatic, or sexuate, freedom.

In this essay, I evaluate her argument as a philosophical matter and in terms of its practical consequences for various areas of legal regulation, and also situate it within the feminist debates with liberalism and in the broader history of philosophical liberalism as a whole.

Feminism, liberalism, jurisprudence

Abstract:
The articles, reports and commentary included in this Issue address a specialized but increasingly important area of federal sentencing: the administration of the federal death penalty. Apart from its independent legal, moral and symbolic significance, the issues raised by the return of capital punishment to the federal system resonate far beyond the limited number of federal death penalty cases brought each year. The articles and other materials included in this Issue situate federal capital prosecutions in a number of diverse contexts and from a number of diverse perspectives - from historical, doctrinal, policy-based and statistical approaches to personal accounts of what it is like to participate in the capital charging and trial process as a prosecutor or judge.

The Issue is divided into three sections. The first includes articles by academics and practitioners on specific legal and policy aspects of the federal capital sentencing scheme. In his contribution, Professor Rory Little examines the role of geographical diversity in federal capital charging and sentencing, analyzing the peculiarly strong tensions created within "Our Federalism" by a federal death penalty that can be enforced in states that have abolished capital punishment within their own state criminal justice systems. Professor Adam Thurschwell reconsiders the role of the Due Process Clause in guaranteeing the "heightened reliability" of contemporary capital trial procedures in light of historical evidence demonstrating the special deference paid to capital defendants' interests by the Founding-era judiciary in favorem vitae ("in favor of life"). Federal defender William Forman analyzes the potential implications of the Supreme Court's decision in Apprendi v. New Jersey for prosecutions under the Federal Death Penalty Act, while fellow federal defenders Ken Murray and Jon M. Sands discuss the complexities and paradoxes of applying federal death sentencing in the legal thicket of the statutes governing criminal jurisdiction in Indian Country. Last but not least, Professor William Schabas places the federal death penalty in the context of the applicable treaties and customary norms of international law.

The second section is comprised of selections from some primary materials addressing the concerns of both the Department of Justice and its critics that race has played an illegitimate role in federal capital charging and sentencing. Included here are excerpts from the Department of Justice reports issued under Attorney Generals Reno and Ashcroft, along with highlights of the statistics relied upon by these reports, as well as a critique of the latter report delivered via an open letter to U.S. Senator Russell Feingold by Professor David C. Baldus, a leading expert on the statistical evidence related to the role of race in capital punishment.

Finally, the third section places the federal capital prosecutions in the more personal context of the viewpoints of some of the key participants in the process. The Vera Institute provides an account of a roundtable discussion among a number of former United States Attorneys about their approaches to the capital charging process. And District Judge Michael A. Ponsor has supplied a personal account of what it was like to preside over the highly publicized capital case of United States v. Kristin Gilbert.

federal death penalty, capital punishment, death penalty, capital sentencing, federal sentencing

Abstract:
Within a year of each other in the early 1990s, Anthony Kronman and Jacques Derrida both published books criticizing the currently dominant philosophical conception of politics - Kronman's The Lost Lawyer: Failing Ideals of the Legal Profession (1993) and Derrida's Politiques de l'amitie (1994) (translated as Politics of Friendship (1997)). Given the books' otherwise profound differences in subject matter, intellectual tradition and intended audience, these would be ships that could be allowed to pass in the night were it not for the fact that both books' arguments turn in crucial respects on a single element of Aristotle's political philosophy - the role of friendship as the mediating link between the good for the individual (ethics) and the good for the community (politics). In this essay, I attempt to take advantage of this (not at all fortuitous) coincidence by elaborating a possible rapprochement - or "generative graft," to use Derrida's terminology - between Kronman's and Derrida's approaches to the political-philosophical problem of modernity. Through close critical readings of Kronman's book and key passages in Aristotle's Nichomachean Ethics, I suggest that a Derridian reading of Aristotle not only sheds light on Kronman's failed attempt to reconstruct a philosophical basis for modern politics along Aristotelian lines, but that the Derridian approach offers Kronman his best hope of achieving his goal. Towards that end, the essay concludes with a sketch of an ethical-political philosophy based on Derrida's work and the work of one of his main influences, Emmanuel Levinas, that incorporates the most important elements of the Aristotelian critique of modernity, without, however, falling back into the elitism and communitarian dangers in which Kronman's traditionalist reconstruction of Aristotle entangles him, and without losing the benefit of modernity's real political achievements. Thus, along the way, I also hope to show that the American legal academy has something valuable to learn about some of its most fundamental issues from an intellectual tradition that it has for the most part viewed as (at best) an exotic and irrelevant foreign import.