Resumé of

Larry Alexander

Warren Distinguished Professor of Law

University of San Diego School of Law

Larry Alexander Picture

Alexander CV

Criminal Law Fall 2014

BIOGRAPHICAL

PERSONAL 

   Lawrence A. Alexander
   Born: September 23, 1943
   Ft. Worth, Texas

   Wife: Elaine A. Alexander
   Children: Jennifer, David, and Jonathan

   Address:    University of San Diego School of Law
                     5998 Alcala Road
                     San Diego, CA 92110

   Phone:       (619) 260-2317
   FAX:         (619) 260-4728
   E-mail        larrya@sandiego.edu
 

EDUCATION

   B.A., 1965, Williams College
   Major:  Philosophy
   Honors: Magna Cum Laude, Phi Beta Kappa, Highest Honors in Philosophy, Canby Athletic Award, Lehman Scholar

   LL.B., 1968, Yale University
   Honors:   Order of the Coif
 

BAR ADMISSION

   California, 1969
 

CAREER

   1968-1970, Research Attorney, California Court of Appeal, Los Angeles.

   1970-1972, Assistant Professor of Law, University of San Diego

   1975-1995, Professor of Law, University of San Diego

   1989 (Spring), Visiting Professor, University of California, San Diego, Department of Philosophy (Philosophy of Law)

   1995-present, Warren Distinguished Professor of Law, University of San Diego

   1995 (Fall), Visiting Professor, University of Pennsylvania Law School

   2009 (Spring), Joseph D. Jamail Distinguished Visiting Professor, University of Texas School of Law

   2010  (December), Visiting Professor, Hebrew University Faculty of Law

 

WRITINGS AND SCHOLARLY ACTIVITIES

BOOKS

      1.   MONOGRAPHS

Whom Does the Constitution Command? (with Paul Horton) (Greenwood Press, 1988).

            The Rule of Rules: Morality, Rules, and the Dilemmas of Law (with Emily Sherwin) (Duke University Press, 2001).

            Is There a Right of Freedom of Expression? ( Cambridge University Press, 2005).

Demystifying Legal Reasoning (with Emily Sherwin) (Cambridge University Press, 2008).

Crime and Culpability: A Theory of Criminal Law (with Kimberly Ferzan and Stephen Morse) (Cambridge University Press, 2009).  

         

      2.   ANTHOLOGIES

Contract Law (collection of essays on the theory of contract law, part of the International Library of Essays in Law and Legal Theory, Tom Campbell, General
Editor, Dartmouth Pub.
Co., 1991).
 

Constitutionalism: Philosophical Foundations (Cambridge University Press, 1998).

Legal Rules and Legal Reasoning (Ashgate/Dartmouth Pub. Co., 2000).
 

Freedom of Speech  (Ashgate/Dartmouth Pub. Co., 2000).



ARTICLES, CHAPTERS, ESSAYS, AND REVIEW ESSAYS

1.   JURISPRUDENCE AND GENERAL LEGAL THEORY

"Hercules or Proteus? The Many Theses of Ronald Dworkin" (co-authored with Michael Bayles), 5 Social Theory & Practice 267 (1980).

 

"Painting Without the Numbers: Noninterpretivist Judicial Review," 8 University of Dayton Law School 447 (1983).

"Pursuing the Good--Indirectly," 95 Ethics 315 (1985).

"Striking Back at the Empire: A Brief Survey of Problems in Dworkin's Theory of Law,"  6 Law & Philosophy 419 (1987).

 

"Legal Theory and Judicial Accountability: A Comment on Seidman," 61 Southern California Law Review 1601 (1988).

"The Constitution as Law," 6 Constitutional Commentary 103 (1989).

"Constrained by Precedent," 63 Southern California Law Review 1 (1989).

"Essay: Of Two Minds About Law and Minds," 88 Michigan Law Review 2444 (1990).

"Law and Exclusionary Reasons," 18 Philosophical Topics 5 (1990).

"The Gap," 14 Harvard J. of Law & Public Policy 695 (1991).

"Proving the Law," 86 Northwestern University Law Review 905 (1992).

"Practical Reason and Statutory Interpretation," 12 Law & Philosophy 319 (1993).

            "The Deceptive Nature of Rules" (with Emily Sherwin), 142 University of Pennsylvania Law Review 1191 (1994).

 

"All or Nothing at All? The Intentions of Authorities and the Authority of Intentions," in A. Marmor, ed., Law and Interpretation 357 (1995).

 

"Against Legal Principles" (with Kenneth Kress), in A. Marmor, ed., Law and Interpretation 279 (1995), reprinted in 82 Iowa Law Review 739 (1997).

"Fancy Theories of Interpretation Aren't," 73 Washington University Law Quarterly 1081 (1995).

"Originalism, or Who Is Fred?," 19 Harvard Journal of Law & Public Policy 321 (1995).

"Precedent" in D. Patterson, ed., A Companion to the Philosophy of Law and Legal Theory 503 (1996).

"Incomplete Theorizing," 72 Notre Dame Law Review 531 (1997).

"Bad Beginnings," 145 University of Pennsylvania Law Review 57 (1997).

"On Extrajudicial Constitutional Interpretation" (with Fred Schauer), 110 Harvard Law Review 1359 (1997).

"Replies to Our Critics" (with Ken Kress), 82 Iowa Law Review 923 (1997).

"The Banality of Legal Reasoning," 73 Notre Dame Law Review 517 (1998).

"Constitutional Tragedies and Giving Refuge to the Devil," in W. Eskridge & S. Levinson, eds., Constitutional Stupidities, Constitutional Tragedies (1998).

 

"Can the Law Survive the Asymmetry of Authority?," in L. Meyer, ed., Rules and Reasoning 39 (1999), reprinted in 19 Q.L.R. 463 (2000).

 

"`With Me, It's All or Nuthin''": Formalism in Law and Morality," 66 University of Chicago Law Review 530 (1999).

 

"Nonjudicial Interpretation of the Constitution" (with Frederick Schauer), in Encyclopedia of the American Constitution, Supplement II, L. Levy, K. Karst, & A. Winkler, eds. (2000).

 

"Stare Decisis," in Encyclopedia of the American Constitution, Supplement II, L. Levy, K. Karst, & A. Winkler, eds.(2000).

 

"Theory's A What Comes Natcherly," 37 San Diego Law Review 777 (2000).

 

"Defending Judicial Supremacy: A Reply" (with Frederick Schauer), 17 Constitutional Commentary 455 (2000).

 

"Interpreting Rules: The Nature and Limits of Inchoate Intentions" (with Emily Sherwin), in Legal Interpretation in Democratic States, J. Goldsworthy and T. Campbell, eds. (2002).

 

"Is Judicial Review Democratic?  A Comment on Harel" (forthcoming in Law & Philosophy, 2003).

 

"Deception in Morality and Law" (with Emily Sherwin), 22 Law & Philosophy 393 (2003).

 

"Rule-Guidance, Rationality, and Constraint," in Legal and Political Philosophy, E. Villanueva, ed. (2002).

 

"Mother May I?  Imposing Mandatory Prospective Rules of Statutory Interpretation"(with Saikrishna Prakash), 20 Constitutional Commentary 97 (2003).

 

""Is That English You're Speaking?' Some Arguments for the Primacy of Intent in Interpretation" (with Saikrishna Prakash), 41 San Diego Law Review 967 (2004).

 

"Constitutionalism," in The Blackwell Guide to the Philosophy of Law and Legal Theory, M. Golding and W. Edmundson , eds.(2004).

 

"Judges as Rulemakers" (with Sherwin), D. Edlin, ed., Common Law Theory (Cambridge Univ. Press, 2007).

 

"Judicial Review and Moral Rights," 33 Queen's L. J. 1 (2007).

 

"How to Understand Legislatures: A Comment on Boudreau, Lupia, McCubbins, and Rodriguez," 44 San Diego L. Rev. 993 (2007).

 

"Is Policy within Law's Limited Domain?" (with Schauer), 26 University of Queensland Law Journal 221 (2007).

 

"Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling the Issues," in G. Huscroft, ed., Interpreting the Constitution (Cambridge Univ. Press, 2008).

 

"Law and Philosophy at Odds" (with Sherwin) in J. Mootz, ed., On Philosophy in American Law (Cambridge Univ. Press, 2009).

 

"Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance" (with Schauer) (forthcoming in M. Adler and K. Himma, eds.,

The Rule of Recognition and the U.S. Constitution, Oxford Univ. Press, 2009).

“Constitutionalism,” in T. Christiano & J. Christman, eds., Contemporary Debates in Political Philosophy (2009).

"Constitutionalism and Democracy: Understanding the Relation," in The Supreme Court and the Idea of Constitutionalism (S. Kautz, A. Melzer, J. Weinberg & M. R. Zinman, eds., Univ. Pennsylvania Press, 2009).

 

"Of Living Trees and Dead Hands: The Interpretation of Constitutions and Constitutional Rights," 22 Canadian Journal of Law & Jurisprudence 227 (2009).

 

"Constitutions, International Law, and the Settlement Function of Law: A Schema for Further Reflection," 11 San Diego International Law Review 43 (2009).

 

"Waluchow's Living Tree Constitutionalism," 29 Law & Phil. 93 (2010).


"What Are Constitutions, and What Should (and Can) They Do?," 28 Social Philosophy and Policy 1 (2010).

 

"Telepathic Law," 27 Constitutional Commentary 139 (2010).

 

"Simple-Minded Originalism," in The Challenge of Originalism: Essays in constitutional theory, G. Huscroft & B.W. Miller, eds. (2011).

 

"What's Inside and Outside the Law" 31 Law and Philosophy 213 (2011).

 

"Constitutionalism," in Encyclopedia of Jurisprudence (D. Reidy, ed., 2012).

 

"Legal Objectivity and the Illusion of Legal Principles" (in M. Klatt, Institutionalized Reason: The Jurisprudence of Robert Alexy, Oxford Univ. Press, 2012).

 

“Precedential Constraint, Its Scope and Strength: A Brief Survey of the Possibilities and Their Merits,” in T. Bustamante et al, eds., On the Philosophy of Precedent (2012).

            “The Method of Text and ? Jack Balkin’s Originalism with No Regrets” 2012 Ilinois Law Review 611.

“Reply to Berman, Brison, and Schauer,” 12 A.P.A. Newsletter on Philsophy and Law 13 (2012).“

 

“Did Casey Strikeout? Following and Overruling Constitutional Precedents in the Supreme Court,” in C. J. Peters, ed., Precedent in the United States Supreme Court (2013).

 

“Originalism, the Why and the What” 82 Fordham Law Review 539 (2013).

 

“The Objectivity of Morality, Rules, and Law: A Conceptual Map” 65 Alabama Law Review 501 (2013).

 

“What Are Principles, and Do They Exist?,” Collana dei Seminari del Dottorato di recerca in Teoria del diritto e ordine guiridico europeo, L’Europa del diritto, 2014.       

 

“Constitutional Theories: A Taxonomy and (Implicit) Critique” 51 San Diego Law Review 623 (2014). 

 

“The Search for Legislative Intent” (forthcoming, U. Queensland Law Review, 2015).

 

      2.   CRIMINAL LAW THEORY

"Self-Defense and the Killing of Noncombatants," 5 Philosophy & Public Affairs 408 (1976), reprinted in C. Beitz, ed., International Ethics (Princeton: Princeton Univ. Press, 1985).

 

"The Doomsday Machine: Proportionality, Prevention and Punishment," 63 The Monist 199 (1980).

 

"Retributivism and the Inadvertent Killing of the Innocent," 2 Law & Philosophy 233 (1983).

 

"Consent, Punishment,and Proportionality," 15 Philosophy & Public Affairs 178 (1986).

 

"Justification and Innocent Aggressors," 33 Wayne Law Review 1177 (1987).

 

"Reconsidering the Relationship Among Voluntary Acts, Strict Liability, and Negligence in Criminal Law," 7 Social Philosophy & Policy 84 (1990), reprinted in M. Gorr & S. Harwood, eds.,

Controversies in Criminal Law (Westview Press, San Francisco: 1992).

"Self-Defense, Punishment, and Proportionality," 10 Law & Philosophy 323 (1991). 

"Voluntary Acts: The Child/Davidson Trilemma," 11 Criminal Justice Ethics 98 (1993).  

"Self-Defense, Justification, and Excuse," 22 Philosophy & Public Affairs 53 (1993). 

"Inculpatory and Exculpatory Mistakes and the Fact/Law Distinction: An Essay in Memory of Myke Bayles," 12 Law & Philosophy 33 (1993).

 

"Crime and Culpability," 5 Journal of Contemporary Legal Issues 1 (1994).

 

"Mens Rea and Inchoate Crimes" (with Kim Kessler), 87 Journal of Criminal Law and Criminology 1138 (1997).

 

"A Unified Defense of Preemptive Self-Protection," 74 Notre Dame Law Review 1475 (1999).

 

"Insufficient Concern: A Unified Conception of Criminal Culpability," 88 California Law Review 931 (2000).

 

"Mistake," in Encyclopedia of Crime and Justice, Joshua Dressler, ed. (2001).

 

"Criminal Liability for Omissions: An Inventory of Issues," in Criminal Law Theory: Doctrines of the General Part, S. Shute and A. Simester, eds. (2002).

 

"The Philosophy of Criminal Law," in The Oxford Handbook of Jurisprudence and Legal Philosophy, Jules Coleman & Scott Shapiro, eds. (2002).

 

"Unknowingly Justified Actors and the Attempt/Success Distinction," 39 Tulsa Law Review 851 (2004).

 

"Lesser Evils: A Closer Look at the Paradigmatic Justification," 24 Law & Philosophy 611 (2005).


"Culpable Acts of Risk Creation" (with Ferzan), 5 Ohio State Journal of Criminal Law 375 (2008).

"Against Negligence Liability" (with Ferzan), in P. Robinson, K. Ferzan, and S. Garvey, Criminal Law Conversations (Oxford U. Press, 2009).

"Results Don’t Matter" (with Ferzan), in P. Robinson, K. Ferzan, and S. Garvey, Criminal Law Conversations (Oxford U. Press, 2009).


"Facts, Law, Exculpation, and Inculpation: Comments on Simons," 3 Criminal Law and Philosophy 241 (2009).

“Criminal and Moral Responsibility and the Libet Experiments,” in Conscious Will and Responsibility, W. Sinnott-Armstrong, ed. (2011).

“Response to Critics” (with Ferzan), in 29 Law & Phil. 483 (2010).

“Beyond the Special Part” (with Ferzan), in Philosophical Foundations of Criminal Law, A. Duff and S. Green, eds. (2011).

"Culpability," in The Oxford Handbook on the Philosophy of Criminal Law, J. Deigh and D. Dolinko, eds. (2011).

"Duff on Attempts," in Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff, R. Cruft, M. Krause, and M. Reiff, eds., (2011).

“Michael Moore and the Mysteries of Causation in the Law,” 42 Rutgers L. J. 301 (2011).

"Moore or Less' Causation and Responsibility”(with Ferzan), 6 Criminal Law & Philosophy 81 (2012).

"Danger: The Ethics of Preemptive Action" (with Ferzan), 9 Ohio State J. of Criminal Law 637 (2012).

"Self-Defense," in A. Marmor, ed., The Routledge Companion to the Philosophy of Law (2012).

          “Reply to Dolinko” (with Ferzan), 6 Criminal Law & Philosophy 281 (2012). 

"Risk and Inchoate Crimes: Retribution or Prevention?" (with Ferzan), in G.R. Sullivan et al, eds., Seeking Security: Pre-empting the Commission of Criminal Harms (2012).

"Ferzander's Surrebuttal" (with Ferzan), 6 Criminal Law & Philosophy 463 (2012).

"Fletcher on the Fault of Not Knowing" (with Ferzan), in R. Christopher, ed., Essays on Criminal Law, Oxford Univ. Press (2013).

"Can Self-Defense Justify Punishment?," 32 Law & Philosophy 159 (2013).

"Yaffe on Attempts" 19 Legal Theory 124 (2013).

"You Got What You Deserved," 7 Criminal Law & Philosophy 309 (2013).

"Causing the Conditions of One's Own Defense: A Theoretical Non-Problem," 7 Criminal Law & Philosophy 623 (2013).

“Hart and Punishment for Negligence: (forthcoming, 2014).

“Distributive Justice and Retributive Justice” in S. Olsaretti, ed., Oxford Handbook of Distributive Justice, 2015.

“Ignorance as a Legal Excuse” (forthcoming, 2015).

“Recipe for a Theory of Self-Defense: The Ingredients and Some Cooking Suggestions” in C. Coons and M. Weber, eds., (forthcoming, 2015).

 

      3.   CONSTITUTIONAL THEORY

 

A.       Freedom of Speech

 

"Speech in the Local Marketplace" (an article based upon a speech delivered to 1976 Convention of the League of California Cities), 14 San Diego Law Review 357 (1977).

 

"Commercial Speech and First Amendment Theory," 75 Northwestern University Law Review 307 (1980).

 

"The Impossibility of a Free Speech Principle" (co-authored with Paul Horton), 78 Northwestern University Law Review 1319 (1983).

 

"Consumer Boycotts and Freedom of Association: A Comment on a Recently Proposed Theory" (co-authored with Maimon Schwarzschild), 22 San Diego Law Review 555 (1985).

 

"Is There an Overbreadth Doctrine?," 22 San Diego Law Review 541 (1985).

 

"Low Value Speech," 83 Northwestern University Law Review 547 (1989).

 

"The ADL Hate Crime Statute and the First Amendment," 11 Criminal Justice Ethics 49 (1993).

 

"Trouble on Track Two: Incidental Regulations of Speech and Free Speech Theory," 44 Hastings L.J. 921 (1993).

 

"Free Speech and Speaker's Intent," 12 Constitutional Commentary 21 (1995).

 

"Banning Hate Speech and the Sticks and Stones Defense," 13 Constitutional Commentary 71 (1996).

 

"Freedom of Speech," in R. Chadwick, ed., Encyclopedia of Applied Ethics (1997).

 

"Hate Speech," in R. Newman, ed., The Constitution and Its Amendments (1998).

 

"Incitement and Freedom of Speech," in D. Kretzmer & F.H Hazan, eds., Freedom of Speech and Incitement Against Democracy (2000).

 

"Freedom of Expression as a Human Right," in Protecting Human Rights, T. Campbell, J. Goldsworthy, & A. Stone, eds. (2003).

" Compelled Speech, " 23 Constitutional Commentary 147 (2006).
 

"Expression, Freedom of," in Encyclopedia of Law and Society: American and Global Perspectives, D. Clark, ed. (Sage Publications, 2007)

"Freedom of Expression," in Encyclopedia of Applied Ethics, 2d ed., Vol. 2 (R. Chadwick, ed., 2012).


"There Is No First Amendment Overbreadth (But There Are Vague First Amendment Doctrines); Prior Restraints Aren't "Prior";

and "As Applied" Challenges Seek Judicial Statutory Amendments," 27 Constitutional Commentary 429 (2011).

"Freedom of Expression" in G. Claeys and L.T. Sargent, eds., Encyclopedia of Modern Political Thought (forthcoming, 2013).

 

"Redish on Freedom of Speech," 107 Northwestern Univ. Law Review 593 (2013).

 

“Is Freedom of Expression a Universal Right?,” 50 San Diego L. Rev. 707 (2013).

 

“Freedom of Religion and Expression” in K. Lippert-Rasmussen et al, eds., A Companion to Applied Philosophy (forthcoming, 2015).

 

 

B.      Equality

 

"The New Racism" (co-authored with Elaine Alexander), 9 San Diego Law Review 190

(1972).

"Introduction: Motivation and Constitutionality," 15 San Diego Law Review 925 (1978). 

"Motivation and Constitutionality: A Postscript," 16 San Diego Law Review 885 (1979). 

"Modern Equal Protection Theories: A Metatheoretical Taxonomy and Critique," 42 Ohio State Law Journal 3 (1981).

 

"Understanding Constitutional Rights in a World of Optional Baselines," 26 San Diego Law Review 175 (1989).

 

"Lost in the Political Thicket," 41 Univ. of Florida Law Review 563 (1990).

 

"A Comment on Cass Sunstein's Equality" (co-authored with Emily Sherwin), 9 Constitutional Commentary 189 (1992).

 

"What Makes Wrongful Discrimination Wrong?," 141 University of Pennsylvania Law Review 149 (1992).

 

"Constitutional Theory and Constitutionally Optional Benefits and Burdens," 11 Constitutional Commentary 287 (1994).

 

"Impossible," 72 Denver University Law Review 1007 (1995).

 

"Still Lost in the Political Thicket (or Why I Don't Understand the Concept of Vote Dilution)," 50 Vanderbilt Law Review 327 (1997).

 

"Sometimes Better Boring and Correct: Romer as an Exercise of Ordinary Equal Protection Analysis," 68 University of Colorado Law Review 335 (1997).

 

"Discrimination by Proxy" (with Kevin Cole), 14 Constitutional Commentary 453 (1997).

 

"Affirmative Action and Legislative Purpose," 107 Yale Law Journal 2679 (1998).

 

"Is It Really Racist Not To Be Racist? A Reply to Professor Spann" (co-authored with Maimon Schwarzschild), www.law.duke.edu/journals/dlj/alex209.html

 

"Rules, Rights, Options, and Time" 6 Legal Theory 391 (2000).

 

"The Supreme Court, the Florida Vote, and Equal Protection," 38 San Diego Law Review 1077 (2001).

 

"Equal Protection and the Prosecution and Conviction of Crime," 2002 The University of Chicago Legal Forum 155.

 

"Equal Protection and the Irrelevance of 'Groups,'" in Issues in Legal Scholarship, 2002, www.bepress.com/ils/iss2/art1

 

"Grutter or Otherwise: Racial Preferences and Higher Education" (with Schwarzschild), 21 Constitutional Commentary 3 (2004).

 

"Tempest in an Empty Teapot: Why the Constitution Does Not Regulate Gerrymandering" (with Prakash), 50 William & Mary L. Rev. 1 (2008).

 

"Disparate Impact: Fairness or Efficiency," 50 San Diego Law Review 191 (2013).

 

"Race Matters" (with Schwarzschild), 29 Constitutional Commentary 31 (2013).
 

C.       Procedural Due Process

 

"Ingraham v. Wright: A Primer for Cruel and Unusual Jurisprudence" (co-authored with Paul Horton), 52 Southern California Law Review 1305 (1979).

 

"The Relationship Between Procedural Due Process and Substantive Constitutional Rights," 34 Univ. of Florida Law Review 323 (1987).

 

"The Supreme Court, Dr. Jekyll, and the Due Process of Proof," 1996 The Supreme Court Review 191.

 

"Are Procedural Rights Derivative Substantive Rights?," 17 Law & Philosophy 19 (1998).

 

D.      State Action

 

"Cutting the Gordian Knot: State Action and Self-Help Repossession,"2 Hastings Constitutional Law Quarterly 893 (1976).

 

"Constitutional Torts, the Supreme Court, and the Law of Noncontradition: An Essay on Zinermon v. Burch," 87 Northwestern University Law Review 576 (1993).

"The Public/Private Distinction(s)," 10 Constitutional Commentary 361 (1993). 

"State Action," in The Philosophy of Law: An Encyclopedia, edited by Christopher Gray (1999).
 

E.   Other

 

"The Province of Constitutional Law Casebook Jurisprudence Redetermined," 29 Stanford Law Review 1299 (1977).

 

"Takings of Property and Constitutional Serendipity," 41 Univ. of Miami Law Review 223 (1986).

 

"Is There Such a Thing as Extraconstitutionality? The Puzzling Case of Dalton v. Specter" (with Evan Lee), 27 Arizona State Law Journal 845 (1995).

 

"Are Smith and Hialeah Reconcilable?," 13 Constitutional Commentary 285 (1996).

 

"Good God, Garvey! The Inevitability and Impossibility of a Religious Justification of Free Exercise Exemptions," 47 Drake Law Review 35 (1998).

 

"Introduction to the Conference on Legal Transitions," 13 Journal of Contemporary Legal Issues 1 (2003).

 

"Reports of the Delegation Doctrine's Death Are Greatly Exaggerated" (with Saikrishna Prakash), 70 Univ. of Chicago Law Review 1297 (2003).

 

"Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury v. Madison and the Case for Judicial Supremacy," 20 Constitutional Commentary 369 (2003).
 

"Popular? Constitutionalism?" (with Larry Solum), 118 Harvard Law Review 1594 (2005).

 

"Delegations Really Running Riot" (with Saikrishna Prakash), 93 Virginia Law Review, 594 (2007).

"Kent Greenawalt and the Difficulty (Impossibility?) of Religion Clause Theory," 25 Constitutional Commentary 243 (2009).

“Response to Professor Kent Greenawalt’s Lecture,” 47 San Diego L. Rev. 1153 (2010).


4.     MORAL AND POLITICAL THEORY

 

"The Stork Market" (co-authored with Lyla O'Driscoll), 4 Journal of Libertarian Studies 173 (1980).

 

"Liberalism as Neutral Dialogue: Man and Manna in the Liberal State," 28 U.C.L.A. Law Review 816 (1981).

 

"Zimmerman on Coercive Wage Offers," 12 Philosophy & Public Affairs 160 (1983).

 

"Natural Advantages and Contractual Justice" (co-authored with William Wang), 3 Law & Philosophy 281 (1984).

 

"Another Look at Moral Blackmail," Philosophy Research Archives, Vol. X (1984): 189.

 

"Kidney Pooling," 2 Cogito 15 (1984).

 

"Reiman's Libertarian Interpretation of Rawls' Difference Principle," Philosophy Research Archives, Vol. X (1984): 13.

 

"Electronic Monitoring of Felons by Computer: Threat or Boon to Civil Liberties"(co-authored with Elaine Alexander), 11 Social Theory & Practice 89 (1985).

 

"Fair Equality of Opportunity: Rawls' (Best?) Forgotten Principle," Vol. XI Philosophy Research Archives 197 (1985).

 

"Liberalism, Neutrality, and Equality of Welfare Versus Equality of Resources" (co-authored with Maimon Schwarzschild), 16 Philosophy & Public Affairs 85 (1986).

 

"Scheffler on the Independence of Agent-Centred Prerogatives from Agent-Centred Restrictions," 84 Journal of Philosophy 277 (1987).

 

"Causation and Corrective Justice: Does Tort Law Make Sense?," 6 Law & Philosophy 1 (1987).

 

"Personal Projects and Impersonal Rights," 12 Harvard J. of Law & Public Policy 813 (1989).

 

"Foreword: Coleman and Corrective Justice," 15 Harvard Journal of Law & Public Policy 621 (1992).

 

"Liberalism, Religion, and the Unity of Epistemology," 30 San Diego L. Rev. 763 (1993).

 

"Harm, Offense, and Morality," 7 The Canadian Journal of Law and Jurisprudence 199 (1994).

 

"Negligence, Crime, and Tort: Comments on Hurd and Simons," 76 Boston University Law Review 301 (1996).

 

"Affirmative Duties and the Limits of Self-Sacrifice," 15 Law & Philosophy 65 (1996).

 

"The Moral Magic of Consent (II)," 2 Legal Theory 165 (1996).

 

"Is Morality Like the Tax Code?," 95 Michigan Law Review 1839 (1997).

 

"Banishing the Bogey of Incommensurability," 146 University of Pennsylvania Law Review 1641 (1998).

 

"Subversive Thoughts on Freedom and the Common Good" (with Maimon Schwarzschild), 97 Michigan Law Review 813 (1999).

 

"The Uncertain Relationship Between Libertarianism and Utilitarianism"(with Maimon Schwarzschild), 19 Quinnipiac Law Review 657 (2000).

 

"Deontology at the Threshold," 37 San Diego Law Review 893 (2000).

 

"Ripstein, Reasonableness, and Objectivity," 20 Law & Philosophy 617 (2001).

 

"Illiberalism All the Way Down: Illiberal Groups and Two Conceptions of Liberalism," 12 Journal of Contemporary Legal Issues 625 (2002).

 

"The Legal Enforcement of Morality," in Companion to Applied Ethics, R. Frey and C. Wellman, eds. (2003).

 

"The Jursidiction of Justice: Two Conceptions of Political Morality," 41 San Diego Law Review 949 (2004).

 

"When Are We Rightfully Aggrieved?: A Comment on Postema," 11 Legal Theory 325 (2005).

 

"Deontology" (with Moore), Stanford Encyclopedia of Philosophy (2007).

 

"Is There Logical Space on the Moral Map for Toleration?  A Brief Comment on Smith, Morgan, and Forst," in M. Williams and J. Waldron, eds., Toleration and Its Limits (NYU Press, 2008).


"Scalar Properties, Binary Judgments," 25 Journal of Applied Philosophy 85 (2008).

"What is Freedom of Association, and What Is Its Denial?" 25 Soc.Phil. & Pol'y 1 (2008), reprinted in Freedom of Association (E. Paul, F. Miller & J. Paul, eds., 2008).

"Plastic Trees and Gladiators: Liberalism and Aesthetic Regulation," 16 Legal Theory 77 (2010).

“Deontological Constraints in a Consequentialist World: A Comment on Law, Economics, and Morality,” 3 Jerusalem Review of Legal Studies 75 (2011).


"Voluntary Enslavement," in C. Coons and M. Weber, eds., Paternalism: Theory and Practice (2013).

 

"Confused Culpability, Contrived Causation, and the Collapse of Tort Theory” (with Ferzan) in J. Oberdiek, ed., Philosophical Foundations of the Law of Torts (2014)..


“Other People’s Errors,” 16 Ethical Theory and Moral Practice 1049 (2013).

"The Most Persuasive Frankfurt Example, and What It Shows: Or Why Determinism is Not the Greatest Threat to Moral Responsibility,” 4 Open Journal of Philosophy 141 ___ (2014).


“The Ontology of Consent” 55 Analytic Philosophy 1 (2014).


"The Means Principle" (forthcoming in 2015).


 

5. MISCELLANEOUS

 

"The Authentication of Documents Requirement" (co-authored with Elaine Alexander), 10 San Diego Law Review 266 (1973).

 

"Freedom of Contract and the Family: A Skeptical Appraisal" (co-authored with Paul Horton), in Peden and Glahe, eds., The American Family and the State 229 (1986).

 

"What We Do and Why We Do It," 45 Stan. L. Rev. 1885 (1993).

 

"Academic Freedom," 77 U. Col. L. Rev. 883 (2006).

 

“Fish on Academic Freedom: A Merited Assault on Nonsense, But Perhaps a Bridge Too Far,” 9 Florida International Law Review 1 (2014).

 

 

6. UNTITLED BOOK REVIEWS

Review of Randy Barnett, ed., The Rights Retained By the People, 7 Constitutional Commentary 396 (1990).

Book Note, 101 Ethics 676 (1991).

 

Review of R. Goodin & A. Reeve, eds., Liberal Neutrality, 8 Constitutional Commentary 255 (1991).

 

Review of H. Wellington, Interpreting the Constitution, and L. Tribe and M. Dorf, On Reading the Constitution, 8 Constitutional Commentary 463 (1991).

 

Review of R. Schopp, Automatism, Insanity, and the Psychology of Criminal Responsibility, 103 Ethics 594 (1993).

 

Review of J. Arthur, Words That Bind, 106 Philosophical Review 461 (1997).

 

Review of R. George, ed., The Autonomy of Law, 108 Ethics 600 (1998).

 

Review of L.W. Sumner, The Hateful and the Obscene, 116 Ethics 809 (2006).

 

Review of D. Hellman and S. Moreau, Philosophical Foundations of Discrimination Law (forthcoming in 125 ETHICS___, 2015).

 

 

Rev. 12-2-14