A Quite Principled Conceit

7 Pages Posted: 30 Jun 2013

See all articles by Kiel Brennan-Marquez

Kiel Brennan-Marquez

University of Connecticut - School of Law

Date Written: May 31, 2013

Abstract

This essay responds to Jed Rubenfeld’s article, “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy” (122 Yale L. J. 1372). I argue that Professor Rubenfeld’s analysis falters on two separate fronts. First, although the article departs from a trenchant observation — that dominant theories of rape law are out of synch with our intuitions about rape — his proposed alternative also fails to track intuition. Second, Professor Rubenfeld offers no justification, in the first instance, for why rape law should hew to principle rather than intuition. In my view, no such justification is forthcoming: the project rests on an unfounded, and ultimately faulty, premise.

Keywords: Legal theory, Legal reason, Jurisprudence, Rape

Suggested Citation

Brennan-Marquez, Kiel, A Quite Principled Conceit (May 31, 2013). University of Chicago Law Review, Vol. 80, Dialogue, 2013; Yale Law School, Public Law Working Paper. Available at SSRN: https://ssrn.com/abstract=2287174

Kiel Brennan-Marquez (Contact Author)

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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