Theoretical Inquiries in Law最新文献_第8页

Disentangling Displacements: Historical Justice for Mizrahim and Palestinians in Israel 解离流离失所:米兹拉希姆和以色列巴勒斯坦人的历史正义

Theoretical Inquiries in Law Pub Date : 2020-07-01 DOI: 10.1515/til-2020-0020

Itamar Mann

{"title":"Disentangling Displacements: Historical Justice for Mizrahim and Palestinians in Israel","authors":"Itamar Mann","doi":"10.1515/til-2020-0020","DOIUrl":"https://doi.org/10.1515/til-2020-0020","url":null,"abstract":"Abstract Israel’s discursive strategy for legitimizing the displacement of Palestinians in 1948 involved describing it as part of a regional “population exchange.” This argument contributed to three critical characteristics of Israeli citizenship. First, it solidified an understanding of citizenship as a negation of persecution and a haven for would-be Jewish refugees. Second, it tied Mizrahi claims against states across the Middle East to Palestinian claims against Israel. Israel thus exploited Mizrahi refugee rights for its geostrategic interests—a fight against the claims of Palestinian refugees. This had detrimental material consequences for both groups. Third, this strategy contributed to the construction of Palestinians as an “exchangeable remainder” and a demographic threat that could potentially pose a risk to the Jewish majority. Ultimately, Israel irrevocably entangled the displacement histories of three groups: Ashkenazi Jews, Mizrahi Jews, and Arab Palestinians. This Gordian knot remains with us today, and is reflected in a stratified Israeli society. But the vision that this symposium suggests we consider, that of “historical justice,” demands that it be undone. This Article therefore offers a way in which the refugee histories could perhaps one day be disentangled: a program of reparations for the Mizrahi and Palestinian citizens of Israel.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"39 1","pages":"427 - 458"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88418992","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

“Wretched Nurseries of Unceasing Discord”: Nationalism, War, and the Project of Peace “不断不和的悲惨苗圃”:民族主义、战争与和平计划

Theoretical Inquiries in Law Pub Date : 2020-07-01 DOI: 10.1515/til-2020-0012

C. Ryan

引用次数: 1

Constructing “Private” Historical Justice in State-Building 在国家建设中建构“私人”历史正义

Theoretical Inquiries in Law Pub Date : 2020-07-01 DOI: 10.1515/til-2020-0016

Manal Totry-Jubran

{"title":"Constructing “Private” Historical Justice in State-Building","authors":"Manal Totry-Jubran","doi":"10.1515/til-2020-0016","DOIUrl":"https://doi.org/10.1515/til-2020-0016","url":null,"abstract":"Abstract Wealthy philanthropic individuals operating within private law have been largely absent from the historical justice narrative of states in transition and, consequently, from normative discussion regarding the justification of their actions under the auspices of the market. This Article seeks to fill this void by examining the “private” historical justice of Jewish state-building prior to the establishment of Israel. Specifically, it focuses on the legal history of Baron Edmond de Rothschild’s settlement project during the Ottoman and Mandate periods and investigates the project’s normative implications. The Baron was a fundamental actor in the design of the Palestinian/Israeli space, as he supported existing Jewish settlements and established new ones. He also built several public institutions that continue to exist to date. I argue that the Baron’s settlement project needs to be addressed from a multidimensional aspect with regard to different groups that were affected by it. On the one hand, his settlement project was just towards the Jewish settlement because it provided a shelter for Jewish immigrants who fled Europe, and it realized the Jews’ right of self-determination. On the other hand, his project resulted in the coercive displacement of an underprivileged local Arab population called the fellaheen and unjustly infringed on their territorial rights.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"148 1","pages":"305 - 341"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88657846","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

The Idea of Israel as a Jewish State 以色列作为一个犹太国家的理念

Theoretical Inquiries in Law Pub Date : 2020-07-01 DOI: 10.1515/til-2020-0023

Alan Patten

引用次数: 2

Territorial Justice in Israel/Palestine 以色列/巴勒斯坦的领土司法

Theoretical Inquiries in Law Pub Date : 2020-07-01 DOI: 10.1515/til-2020-0015

M. Moore

引用次数: 2

Continuity in Morality and Law 道德和法律的连续性

Theoretical Inquiries in Law Pub Date : 2020-05-02 DOI: 10.1515/til-2021-0004

Re’em Segev

{"title":"Continuity in Morality and Law","authors":"Re’em Segev","doi":"10.1515/til-2021-0004","DOIUrl":"https://doi.org/10.1515/til-2021-0004","url":null,"abstract":"Abstract According to an influential and intuitively appealing argument (the Continuity Argument), (1) morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; (2) the law should usually track morality; (3) therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment when the action is almost reasonable and no punishment at all when the action is reasonable (as positive law sometimes does). In this Article, I consider two doubts regarding this argument. First, the premise that morality is continuous in such cases is incompatible with the common view that the moral status of actions is not continuous since there is an important difference between actions that are permissible and actions that are wrong— even if this difference is due to a difference that is very small, such as the one between an action whose consequences are the best and an action whose consequences are just slightly less good. This view extends also to the overall moral status of agents given the common assumption that it depends on the moral status of their actions. This is an important challenge that the Continuity Argument should confront. However, I argue that the best account of morality is more scalar than the common view in these respects. Therefore, I conclude that the first premise of the Continuity Argument is correct in this regard, although it is based on a minority view. The second doubt concerns the scope of the second premise: since there are reasons both in favor and against legal continuity, and the applicability and force of these reasons depend not only on various moral propositions but also on contingent non-moral facts, we often lack the evidence to determine the degree to which the law, at a certain place and time, should be continuous, and specifically that it should often be continuous.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"83 1","pages":"45 - 85"},"PeriodicalIF":0.0,"publicationDate":"2020-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90115803","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Sizing Up Categories 评估类别

Theoretical Inquiries in Law Pub Date : 2020-05-01 DOI: 10.2139/ssrn.3590418

L. Fennell

{"title":"Sizing Up Categories","authors":"L. Fennell","doi":"10.2139/ssrn.3590418","DOIUrl":"https://doi.org/10.2139/ssrn.3590418","url":null,"abstract":"Abstract Categories intentionally create discontinuities. By breaking the world up into cognizable chunks, they simplify the information environment. But the signals they provide may be inaccurate or scrambled by strategic behavior. This Article considers how law might approach the problem of optimal categorization, given the role of categories in managing and transmitting information. It proceeds from the observation that high categorization costs can be addressed through two opposite strategies—making classifications more fine-grained (splitting), and making classifications more encompassing (lumping). Although continuizing and other forms of splitting offer intuitive answers to inaccurate classification and gaming along category lines, lumping is sometimes a better solution. If category membership carries multiple and offsetting implications, the incentive to manipulate the classification system is dampened. To take a simple example, insurance that covers only one risk is more vulnerable to adverse selection than is an insurance arrangement that covers two inversely correlated risks. Making categories larger, more durable, and more heterogeneous can produce such offsets. These and other forms of bundling can arrest damaging instabilities in categorization.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"115 1","pages":"1 - 30"},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77145070","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Proof Discontinuities and Civil Settlements 证明不连续性和民事和解

Theoretical Inquiries in Law Pub Date : 2020-04-26 DOI: 10.1515/til-2021-0009

M. Spottswood

{"title":"Proof Discontinuities and Civil Settlements","authors":"M. Spottswood","doi":"10.1515/til-2021-0009","DOIUrl":"https://doi.org/10.1515/til-2021-0009","url":null,"abstract":"Abstract This Article explores settlement incentives under three different burden of proof rules. The conventional burden of proof is a discontinuous step-function, jumping from no damages to full damages at the 0.5 jury confidence level. Continuous burdens of proof, by contrast, would permit sanctions to steadily increase as juror confidence rises from 0 to 1, with no discontinuity. Linear burdens, which have received extensive attention in prior literature, escalate sanctions steadily across the whole range of confidence levels, while the logistic burden takes a nonlinear form. Using a data simulation approach guided by the empirical realities of American civil litigation, I consider the incentives that each of these rules creates for parties contemplating settlement, using a model in which parties make divergent forecasts of their expected outcomes at trial due to optimism bias. Based on this analysis, I conclude that a linear burden would likely raise our settlement rate by a modest amount, except in very large cases and in “easy” cases, in which an unbiased person would predict that a trial factfinder would have a level of confidence in liability quite close to either zero or one. I also compare the expected error rate of the settlements that each rule produces, and find that the linear rule modestly lowers the expected error rate of settlement overall, although this benefit does not hold for easy cases or those with very high damages. Lastly, I conduct a similar analysis for the logistic burden, finding that it induces a similar quality and quantity of settlements as we currently achieve using conventional burdens.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"172 1","pages":"201 - 262"},"PeriodicalIF":0.0,"publicationDate":"2020-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75349549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Line Drawing in the Dark 在黑暗中画线

Theoretical Inquiries in Law Pub Date : 2020-04-23 DOI: 10.1515/til-2021-0006

Adam J Kolber

{"title":"Line Drawing in the Dark","authors":"Adam J Kolber","doi":"10.1515/til-2021-0006","DOIUrl":"https://doi.org/10.1515/til-2021-0006","url":null,"abstract":"Abstract The law inevitably draws lines. These lines distinguish, for example, whether certain conduct reflects ordinary recklessness constituting manslaughter or more extreme recklessness constituting murder. There is no way to meaningfully draw such lines, however, absent shared ways of representing amounts of recklessness or at least knowledge of the consequences of drawing lines in particular places. Yet legal actors frequently draw lines in the dark, establishing cutoffs along a spectrum with little or none of the information required to do so in a way that suits the law’s goals. For example, jurors must decide whether some conduct constitutes extreme recklessness without knowing prior precedent nor the sentencing consequences of drawing cutoffs in particular places. Judges and lawyers cite line drawing precedents from other jurisdictions without considering whether the lines drawn in prior cases had the same consequences as those in the case at bar. And scholars argue about how to classify conduct without making clear what consequences they believe ought to attach once the classification is made, leaving it hard to tell when scholars have substantive or simply superficial disagreements. In this Article, I discuss some line drawing problems and briefly suggest ways we can add meaning to cutoffs. More generally, I argue, we can “smooth” certain features of the law to both reduce our vulnerability to line drawing in the dark and improve the fit between the law and what our best theories of law recommend. Even when we cannot easily smooth the law, thinking about the law in a smoother fashion can help reduce the jurisprudential pathologies I describe.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"83 1","pages":"111 - 136"},"PeriodicalIF":0.0,"publicationDate":"2020-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81084173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Changing Places, Changing Taxes: Exploiting Tax Discontinuities 改变地点，改变税收:利用税收不连续性

Theoretical Inquiries in Law Pub Date : 2020-02-17 DOI: 10.2139/ssrn.3587056

Julie Roin

引用次数: 1