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Abstract:
The incidence of rape in the United States has declined 85% in the past 25 years while access to pornography has become freely available to teenagers and adults. The Nixon and Reagan Commissions tried to show that exposure to pornographic materials produced social violence. The reverse may be true: that pornography has reduced social violence.

rape, pornography

Abstract:
A rule of law is a norm coupled with coercive power. International soft law is only the norm. There is a vast number of such non-coercive norms, and many recent papers have been preoccupied with their apparent normative tilt toward respect for human rights and democracy. In criticizing the entire soft-law enterprise, I feel like the Grinch who stole Christmas. But I do try to put in a good word or two for the time-honored sources of the 4000 year-old public international law. This paper will be a chapter in the forthcoming The Philosophy of International Law, to be published by Oxford University Press.

soft law, customary law, hard law

Abstract:
Baseball's Infield Fly Rule is one of the most hotly contested topics in American law today. A recent major-league addition to the burgeoning literature is Neil B. Cohen and Spencer Weber Waller's thorough and exhausting analysis of the rule's conceptual roots in the jurisprudence of the past one hundred years. Yet their assumption that nothing of significance happened prior to the twentieth century ignores much significance that happened prior to the twentieth century. For example, despite the fact that the authors are technically correct in noting that baseball itself is not mentioned in the Bible, they overlook the more specific Biblical reference to the Infield Fly Rule. They also miss the historic contributions of Zeno, Plato, Aristotle, Aquinas, Voltaire, Leibniz, and Riemann, among others. Although the Cohen-Waller errors are those of omission and not of commission, the pre-1900 void they have left open cries out for coverage by an erudite Article that is impeccably researched and brilliantly reasoned - one that is nothing short of a grand-slam contribution to Western thought. The present Article scores on all counts.

Abstract:
The concept of legitimacy can occupy a useful space in international law. For example, a de facto government is the legitimate government compared to a de jure government which is the lawful government. International customary law is legitimate by definition. But international institutions, although lawful, are less legitimate because their interests are exclusive - even though they purport to serve inclusive interests.

Abstract:
Logic does not permit contradictions. Ordinary language sometimes uses contradictions meaningfully. Examples are provided of logical derivations. Yet one might ask how one might prove that logic itself is rational. Gottlob Frege answered that logic constitutes rationality.

ordinary logic, Frege, rationality

Abstract:
What follows from the following two propositions? Legal positivism views law as a command writ large. The commander is the person or group with the most power. Answer: this pernicious mind-set is responsible for our abandonment of personal liberty. For there can be no limit to the imagination and will power of the commander. The plenary jurisdiction of the commander paves the way for Big Government to move in and regulate every aspect of our lives and our privacy. The world wasn't always like this. Prior to the servility that positivism has induced, there was a now-forgotten secular natural law that was inherently limited to the needs of society and had no power beyond the outer edge of a person's zone of privacy.

natural law, legal positivism, privacy, libertarianism

Abstract:
Many writers believe that international law is precatory but not "binding" in the way domestic law is binding. Since international law derives from the practice of states, how is it that what states do becomes what they must do? How do we get bindingness or normativity out of empirical fact? We have to avoid the Humean fallacy of attempting to derive an ought from an is. Yet we can find in nature at least one norm that is compelling: the norm of survival. This norm is hardwired into our brains through evolution. It is also hardwired into the international legal system that has survived for four thousand years. In every dispute or controversy, the international legal system weighs in on the side of peaceful and stable resolution - simply because that is in the system's interest of self-perpetuation. In sum, it is international law itself that selects from state actions those actions most conducive to the peaceful resolution of disputes and formulates them as rules and precedents of the system.

states, norms, system, complex, international law, equilibrium, soft law, deadweight costs, democracy, evolution, self-perpetuation

Abstract:
The nature of law and legal practice is changing with the addition of interdisciplinary scholars to law-school faculties and interdisciplinary studies to the law curriculum. However, the accessibility of non-law disciplinarians in the rest of the university raises the question of the cost-effectiveness and opportunity costs of importing them directly into the law school. This Article criticizes the interdisciplinary turn on three grounds. First is the unlikelihood that the joint-degreed persons who join the law faculty will happen to be the ones that their colleagues will end up collaborating with. Second is the even greater unlikelihood that any given discipline can communicate usefully with another discipline. Third is the opportunity-cost factor: that the new interdisciplinary courses will crowd out an essential part of the legal discipline, namely, an understanding of the foundations and dialectical evolution of its forms of language.

Jurisprudence, Legal Education

Abstract:
A coherent theory of international law would have explanatory power. It should indicate where international rules come from, how they are changed, and how they are enforced. The theory could usefully employ theoretical advances from other disciplines, such as systems theory, n-person games, network theory, emergence, complexity, and inference to the best explanation.

systems, n-person games, network theory, complexity, emergence

Abstract:
When two states have a dispute, the other 188 states in the world are more than passive observers. They do not want the dispute to spread. They want the dispute to be resolved in a way that does not stimulate further related disputes. In brief, the uninvolved nations have an interest in peaceful conflict-resolution. That interest coincides with existing international law which is itself peace-seeking (international law shuns anarchy). International law is a coherent, complex, self-adapting, and purposive system; it makes its presence felt in all international disputes and controversies because it represents the aggregate interest of all the states not directly involved in a given dispute. There are many payoffs in conceptualizing international law as a system suggested in this paper, but by far the most important is to transfer zero-sum international wars and conflicts into n-person non-zero-sum games. These games involve maximin strategies of both conflict and cooperation. Indeed, they account for the vast amount of cooperation in the world - cooperation that accumulates over time even as disputes or wars cancel themselves out.

international law, international cooperation, zero-sum conflicts, war, customary law

Abstract:
As international criminal law continues to grow in importance, defenses to charges of war crimes are taking on a generic standardization that covers prosecutions in national courts as well as in international tribunals. This paper briefly discusses the most important defenses and their theoretical interconnections. Substantive defenses include superior orders, command responsibility, tu quoque, military necessity, proportionality, and reprisals. Jurisdictional defenses applicable in national tribunals include personal jurisdiction, subject-matter jurisdiction, and double jeopardy.

Abstract:
Israel cannot obtain legal title to any territory by conquest. Thus Israel's borders were legally established by the United Nations Partition Resolution of 1947, which ended Great Britain's power as a trustee on condition that an Arab State and a Jewish State would be established with borders as demarkated in the text of the resolution. Those borders remain the legal boundary of the State of Israel.

Abstract:
The Kaplow/Shavell thesis can be simply stated: If courts or legislatures pursue any value other than general public welfare, then welfare is to that extent diminished. Justice is one of those values that detract from welfare. But so too is injustice. Hence their entire thesis is a tautology.

Abstract:
Judge Richard Posner locates his moral theory between moral absolutism and the "anything goes" kind of moral relativism. He analyzes whether five contested topics are subject to useful moral debate: infanticide, slavery, suttee, female genital mutilation, and the Holocaust. Each topic presents a different perspective on his own moral theory. But each one fails in a different way to place his own moral theory on a sound footing.

Judge Posner, morality, infanticide, slavery, suttee, female genital mutilation, Holocaust, moral relativism, moral theory

Abstract:
Holmes's famous 1897 theory that law is a prediction of what courts will do in fact slowly changed the way law schools taught law until, by the mid-1920s legal realism took over the curriculum. The legal realists argued that judges decide cases on all kinds of objective and subjective reasons including precedents. If law schools wanted to train future lawyers to be effective, they should be exposed to collateral subjects that might influence judges: law and society, law and literature, and so forth. But the standard interpretation has been a huge mistake. It treats law as analogous to weather forecasting: a meteorologist predicts tomorrow's weather the way an attorney predicts a future decision by a judge. But Holmes said that what a judge decides in the future is inconsequential; a person (such as a bad man) must plan his affairs on the basis of present law. Present law is nothing other than the prediction itself. It is like quantum theory: what we see is not solid matter but rather the probability of solid matter. The law that influences our behavior is itself only a probability. In consequence, the legal realists' focus on the judge is misplaced; the focus should be on the attorney.

Holmes prediction, prophecy, legal realism, attorney, judge, court