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NOZICK
Approach to distributive justice which focuses on historical principles, rather than end-state, principles of justice - and in particular, justice in acquisition and transfer |
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GILLIGAN
An attitude of concern for others, a reciprocal notion of responsibility for others |
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FULLER
The capacity of law to provide an objective record of the subjective belief, intention or state of mind of individuals at a particular point in time |
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CONTRA MILL, HART/DEVLIN DEBATE
Harms (or benefits) to individual caused by knowledge of the mere existence of a particular phenomenon |
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| Third party costs or benefits. The costs or benefits of a particular transaction not taken into account by the parties to that transaction |
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SUNSTEIN, KAHNEMAN
As btwn given alternatives, people seek a compromise. Their choice does depend on alternatives presented, and therefore is susceptible to framing effects. |
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| FAIR VALUE OF POLITICAL LIBERTY |
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RAWLS
Political liberty = right to participate in the political process.
Fair value = roughly equal worth |
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| FAIR EQUALITY OF OPPORTUNITY |
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RAWLS
The idea that individuals should have roughly equal access to careers, given equal talents and motivation. |
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| The treatment of individuals in a similar or symmetric, or impartial way. |
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LOCHNER, LANGDELIIAN CASE METHOD
False assertion of inexorability.
Denial of choice in the application of pervasively indeterminate concepts, sich as liberty. Not all words are so pervasively indeterminate. (Schauer)(bad)
Formalism - as adherence to rules in the sense of truly having domain of choice restricted (could be good) |
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FULLER (SEE PELLER)
Approach to law which defines the end which law should serve, and then uses social scientific tools to determine the way in which law should best go about achieving those ends. |
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MILL
"The only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm to others." Where this condition does not apply, interests of society are only fractional and indirect whereas the interests of the individual is direct.
Principle justified by: minority protection, utility/information, deontological commitment |
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| HOHFELDIAN RIGHT/DUTY PAIR |
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HOHFELD
Jural correlatives allocated by law. I.E. liberty can mean right or privilege, they are very different - and the law allocates one or the other. There is no "natural" scope for liberty prior to law.
Right-duty and privilege-no right |
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Discounting implying a decreasing discount rate over time (specifically a discount rate which falls sharply in the short-run and then less sharply in the longer-run), which may lead consumers to engage in "irrational" behavior when viewed from teh perspective of time 1, unless the consumer is sophisticated and anticipated their own later behavior.
IE to over-consume/under save over time relative to what would be optimal for them at time 1 |
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VERMEULE
An absence of self-interest.
Connected to veil of ignorance concepts (Hayek, Rawls) and the perception of impartiality (Scalia). |
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STIGLITZ, HURWICZ
The idea that a mechanism is consistent with people acting in their own self-interest. |
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| INCOMPLETELY THEORIZED AGREEMENTS |
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SUNSTEIN
Agreements which are based on shallow forms of reasoning. |
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HAYEK, MILL
"The rational of securing of securing to each individual a known range within which he can decide on his actions is to enable him to make the fullest use of his knowledge, especially of his concrete and often unique knowledge of the particular circumstances of time and place."
Only the individual can no his own situation. "Because only the individuals concerned in each instance can fully know these circumstances and adapt their actions to them." |
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DWORKIN
Contraint/requirement imposed on judges, according to the theory proposed by Ronald Dworkin.
Applies vie the first stage of judging, which requires judges to satisfy the requirement of "fit" or consistency with all "major structural aspects" or legal system as a whole, allowing outliers and mistakes.
Applies horizontally across different areas of law and vertically across time. |
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NOZICK
The principle that individuals are only morally entitled to property if their holding of that property satisfies the requirements of either (i) a principle of justice in aquisition (ii) justice in transfer or (iii) a principle of rectification viz a viz unjust acquistiion |
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| LEAST COST-AVOIDER PRINCIPLE |
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CALABRESI&MELAMEND
Principle that, in the face of transaction costs, party who can most cheaply avoid the negative externality should be liable for avoiding it |
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HALE, HOHFELD, COHEN (PELLER)
The intellectual movement or theory which critiques the idea that formal adherence to precedent is either an accurate or desirable description of how judges decide law |
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RAWLS
The justifiability of a particular action or state of the world, according to certain principles of justice.
Whether something is adequately or sufficiently just to warrant allegiance or compliance. |
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CRT (ESP CRENSHAW)
The effect of making something appear more just or legitimate, and therefore more difficult to challenge or change, than it warrants according to underlying criteria of justice or legitimacy. |
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CALABRESI & MELAMED
A legal rule which confers a right to recover or imposes a duty to pay damages, but does not create an absolute entitlement to prevent or enforce a particular outcome. |
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SUNSTEIN, KAHNEMAN
A behavioral bias which say that individuals value losses more than they value equivalent gains - cf endowment effects |
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MANKIW
The tendency for an agent, if imperfectly monitored to undertake less effort that is desirable for the point of view of the principle.
The lack of incentive to avoid risk where there is protection against its consequences, e.g. by insurance. |
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| Negative externalities where cost involved is to social or moral fabric |
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| The part of a judge's reasoning which is not strictly necessary for their holding in a particular case. |
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THALER, SUNSTEIN, JOLLS, KAHNEMAN, TAVERSKY
Tendency of people to be self-serving, or unrealistically optimistic or overconfident about likely outcomes in making judgments |
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SCALIA
Approach to Constitutional interpretation which emphasizes the importance of either (a) the original understanding of the text of the Constitution, as evidences by contemporary usage and the usage during the framing and ratification debates or (b)the specific purposes of those who wrote and ratified the Constitution.
Defended primarily on rule of law grounds.
NB burkean reasons for "faint hearted" or moderate originalism |
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RAWLS, SUNSTEIN
An agreement reached by persons with differing comprehensive viewpoints
i.e. a zone of agreement
SUNSTEIN-. incompletely theorized agreements |
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POSNER
A measure of efficiency.
Pareto improvement- a transaction which makes on party better off, without making anyone else worse off.
Pareto efficiency - a state where no one can be made better off withuot anyone else being made worse off.
Pareto superiority- or Kaldo Hicks criterion |
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PIGOU
Taxes on particular transactions which are designed to discourage certain behavior, and thereby internalize an externality, rather than raise revenue as such |
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RAWLS
Theory which emphasizes importance of individual liberty and equality from a political rather than purely moral standpoint |
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| POLITICAL VS. MORAL CONCEPTIONS |
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RAWLS, NUSSBAUM
Theories/conceptions which are based ona vision of the good life, versus a theory which is to some degree independent of one's comprehensive world view |
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RAWLS
Freedom to participate in the political process.
Sometimes called "active liberty" (Breyer) or "positive liberty" (Berlin) |
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ROBERT FRANK
The idea that relative position or equality matter to indi |
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