A Quite Principled Conceit
7 Pages Posted: 30 Jun 2013
Date Written: May 31, 2013
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
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