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earthly ordering of a human society. Conceptual non-essentialism of the sort famously described by Wittgenstein, whom Posner mentions regularly in his scholarly work, allows legal concepts to take on the vague, equivocal, and contradictory characteristics appropriate to religious and literary concepts. Wittgenstein himself said, “I am not a religious man but I cannot help seeing every problem from a religious point of view,” Rush Rhees, Discussions of Wittgenstein 94 (1970). By the end of his life, Wittgenstein had abandoned the view, often attributed to him, of
classic positivistic and jusnaturalistic perspectives – see Duncan Kennedy, A Critique of Adjudication ( Fin De Siècle) , 27 (1997).
This view implicitly takes for granted the objectivity and neutrality of constitutional rights, and the aptness of judges to enforce them objectively and neutrally. Both premises, however, do not withstand scrutiny.
A Against “Objective” Natural Law
There are myriad constitutional rights’ theories that seek to develop principles for identifying “one right solution” to legal problems. Some theories openly ignore existing law and
Corporate Spending in the 2012 Presidential Election , 77(2) J. Pol. 535 (2015). But it made Citizens United , neo-conservatism and Trump, possible.
This article focuses on the politics of law, rather than campaign finance law. See , as an introduction, J Seligman, Is the Corporation the Person? Reflections on Citizens United v. Federal Election Commission, https://www.rochester.edu/president/citizens-united/ (May 6, 2010), and in further depth, Jacob Eisler, Judicial Perceptionsof Electoral Psychology and the Deep Patterns of Campaign Finance Law , 49(1) Conn
Indirect Expropriation Cases and the Legitimacy Problemsof Investment Arbitration , 22 Widener L. Rev. 1 (2016); Rudolf Dolzer, Fair and Equitable Treatment: Today’s Contours , 12 Santa Clara J. Int’l L. 7 (2013); Becky L. Jacobs, Perplexing Paradox : “ De-Statification” of “Investor-State” Dispute Settlement? 30 Emory Int’l L. Rev. 17 (2015-2016); Ivan Pupolizio, The Right to an Unchanging World Indirect Expropriation in International Investment Agreements and State Sovereignty , 10 Vienna J. on Int’l Const. L. 143 (2016); Gus Van Harten & Martin Loughlin
conservative movement and other prominent conservative legal thinkers, like Robert Bork, is essential to understanding his “sacred symbol” status. Here the issue of judicial “mandates” arises. Although it may be odd to think in such terms, many American judges are characterized throughout their careers by reference to who nominated them and when they were nominated. Indeed, nomination by a particular president often impacts how the media or general public perceives justices. We discuss the significance of the perception that Supreme Court judges have “mandates.”
, pundits complained of a “credibility gap.” Josh Zeitz, How Americans Lost Faith in Government , Wash. Post, Jan. 30, 2018. And that governments and politicians lie are likely truths as ancient as governments and politicians themselves. The insistent call for social media to police their content by banning sites that lie raises many of the problems inherent in government’s performing the same function. Indeed, the absence of electoral accountability might render the social media’s position even weaker.
United States v. Alvarez (2012) concerned a minor official who
Policymakers, practitioners, and academics have long brought attention to unjustified variations in criminal justice outcomes. M ICHAEL T ONRY , S ENTENCING M ATTERS 4 (1996). A principal focus is on disparities in sentencing practices because of the perception that inconsistencies in penalties are indicative of disproportionality in penalty outcomes, an abuse of discretion, and potential discrimination. Cassia Spohn, Twentieth-Century Sentencing Reform Movement: Looking Backward, Moving Forward , 13 C RIMINOLOGY & P UB . P OL ’ Y 535
solve problems in physics. For some reason, I took eleventh grade physics (non-AP, which meant no calculus in the course) instead of ninth grade biology and skipped tenth grade chemistry.
I applied at the age of 13 during the fall of ninth grade to attend these colleges the following academic year: Harvard, Yale, Princeton, Columbia, and NYU. In case the reader is curious, I was accepted by Princeton, Columbia, and NYU, rejected by Yale, and asked by Harvard to withdraw my application and reapply in three years. I would have been able to finish college in two years
concern: the challenges posed by the hardening of “soft law” standardization and harmonization provisions throughout the TPP.
This article tackles the problemof such hardening in three distinct ways. First, as a way to broadly define the current trade landscape, I argue that the rise of regulatory harmonization rules enforced by stronger global administrative law mechanisms enables the new generation of trade treaties to be “shape-shifters,” switching between benchmark (or effort/aspirational) and resolution (or benchmark/enforceable) within the same treaty regime