In previous work we have distinguished between rule-governed decision-making and unconstrained practical, moral, and empirical decision-making. A rule is a general, determinate directive that dictates the outcome of all cases that fall within its terms. Rules achieve settlement and facilitate...

In this short paper, I shall answer the title's question first in the context of criminal law and then in the context of tort law. In that latter section I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus....

In this short essay, I argue that the pursuit of equality beyond equality before the law and a generous safety net is to be resisted. That pursuit tends to produce impoverishment and repression. And it is at odds with the pursuit of excellence, beauty, individuality, and achievement. A state of...

Should countries have constitutions? Should there be American or Canadian style judicial review of constitutional questions? Should constitutions have provisions establishing rights? Or is there a fundamental right to decide democratically the most important issues confronting us, and...

Conventional delegations - statutes delegating Article I, section 8 authority - are familiar enough and have spawned a large literature regarding their constitutionality. Rather than discussing whether Congress may delegate these powers, we wish to shift the focus to delegation of other powers....

Last year's Supreme Court decisions on affirmative action, Gratz and Grutter, are dubious as constitutional law, bringing to mind what John Hart Ely said about Roe v. Wade: "[I]t is not constitutional law, and gives almost no sense of an obligation to try to be." There was at best a cosmetic...

Entirely apart from the substantive justification for existing private property rights, there are several reasons why property is, unavoidably, a morally uncomfortable subject.First, legal property rights are and must be the products of determinate legal rules. As such, they inevitably will...

In this essay, I examine the role that equity historically has played in moderating the outcomes of determinate legal rules in particular cases. The advantage of traditional equity was that its role within the legal system was subordinate relatively obscure, allowing courts to affirm the...

I suggest in this chapter that much but not all of private law is consistent with Locke's understanding of private rights. Locke contemplated that natural rights would undergo some changes to accommodate the move from a state of natural to civil society. For example, natural rights must be...