Retribution is the strategic lynchpin for securing justice and the presumption of innocence. It is the justification that takes the criminal defendant to be a human being rather than a mere instrument of social engineering and political control. By contrast, modern, results-oriented theories of punishment—​deterrence, incapacitation, and rehabilitation—have made our institutions of criminal justice less humane in important ways. Gerard Bradley’s contemporary, detailed account of the old idea of retribution can be cashed out in legal doctrines that secure the presumption of innocence and limit the corrosive effects of strict-liability offenses. This new articulation of an old juristic concept provides a conceptual basis to roll back overcriminalization and build a humane culture of criminal punishment.

Renewed attention to equity in higher education is welcome because true equity helps us to reason together well. When administered correctly, the jurisprudence of equity models civil discourse and, therefore, can teach us how to carry out civic engagement reasonably. Equitable interpretation of the law teaches us how to understand each other charitably. And equity’s deference to law teaches us how to reason well together about our practical problems. Law is the practical reasoning that we do together. Equity serves the ends of justice by serving law, rather than undermining it. These functions of equity in adjudication point toward a model of equity in practical reasoning and civic discourse more broadly. Research method: jurisprudence.

In a world growing more complex, it can be difficult to identify those persons responsible for harmful and illegal activities in navigable, public places. This article provides a way to see through the complications and assign legal responsibility correctly. It improves and expands the canonical classification of vessel charter parties, drawing conceptual clarity from the law of property, specifically the doctrines concerning bailments and carriage. It uses this improved classification to solve new problems in admiralty law and to anticipate problems in space law. To enforce public laws, open the way for new explorations in space, and maintain national security in the near future, it will be increasingly necessary to identify the differences between various types of vessel charters. Nefarious actors conceal their activities behind false charters. Benign actors invent new forms of responsibility for vessels, such as time-sharing cooperatives. And as privately-owned vehicles lead the way into space, joint ventures will be increasingly important in space exploration. The basic legal concepts underlying charter parties can enable lawyers and law enforcement officials to identify the rights and duties of interested parties correctly, to see through novel forms and perceive the substantive reality of how rights are assigned between persons with respect to vessels. This expanded and detailed classification of charters will be useful not only to private lawyers as they sort out rights and responsibilities between private persons on navigable waters and in space, but also to public officials as they try to discern who is responsible for vessels and spacecraft for purposes of public and international law.

Many recent cases of constitutional conflict have pitted First Amendment liberties of speech, religious exercise, and association against nondiscrimination rules and policies, especially laws governing public accommodations and public forums. To resolve these cases and to understand how civil rights fit together, courts and scholars need a logical and satisfying account of the foundations of public accommodations law. But the law seems to be confused and legal scholars are of different minds. Some assert that proprietors who open their premises and services to the public have no right at common law to exclude or refuse service to anyone. Others find in the common law no proprietary obligations at all except for those which the customary law imposes on common carriers and monopolies. Neither of those views can be reconciled with English and early American writ practice. When we look at the law as a common law jurist would, we find more complexity. But the complexity is ordered according to conceptual distinctions that are familiar from the common law. When those concepts are laid over the precedents, a sensible taxonomy emerges. Purely private property, secured at common law by actions of disseisin and trespass, is governed by different rights and duties than property whose owner has conferred a general license or undertaking, which is actionable in assumpsit. Both of those forms of private right are different from common carriers and franchises whose conduct is governed by the customary law of the realm. In cases of dispute, that quintessential common-law institution—the jury—answers the question whether the proprietor has acted with an unlawful intention. In these ways, the common law of public accommodations avoids the zero-sum contest of civil rights that has characterized First Amendment and civil rights jurisprudence in recent years. Courts can avoid zero-sum conflicts between rights and can construe constitutional and legal texts faithfully by interpreting public accommodations laws as declaratory of the common law from which those laws emerged.

This article uses recent church property litigation to frame an old jurisprudential question, which once occupied eminent jurists on both sides of the Atlantic. The question, as John Neville Figgis expressed it, is whether churches and other societies of people smaller than the state “have an existence of their own or are the mere creatures of the sovereign.” This question lies hidden at the heart of many contemporary legal and political questions, including debates over corporate social responsibility, religious liberty, and the security of group property rights.Frederic Maitland offered a clear answer. He concluded that, besides natural persons (human beings) and purely fictional persons, “the law knows persons of another kind,” including the corporation, which it treats as a right-and-duty-bearing unit, like a human being, and the trust, which is constituted as a matter of equitable conscience. With few exceptions, American Legal Realists were equally clear in the other direction. They insisted that corporations and group owners are nothing but legal fictions, entirely derived from positive laws and legal judgments. Both answers are problematic, for different reasons.Recent jurisprudential insights now put us in a better position to answer Figgis’s question, while avoiding the pitfalls on both sides. Specifically, we have new evidence bearing upon the old question about corporate personhood. And we have new questions that shed light upon the old evidence about the nature of trusts. These insights give us reasons to understand group owners as existing artefactual realities, with true moral and legal agency, prior to their recognition in positive law and legal judgments.

The Modern Law ReviewVolume 84, Issue 6 p. 1427-1446 REVIEW ARTICLE What Makes Property Liberal? Adam J. MacLeod, Corresponding Author Adam J. MacLeod amacleod@faulkner.edu Professor of Law, Faulkner University. Email: amacleod@faulkner.eduSearch for more papers by this author Adam J. MacLeod, Corresponding Author Adam J. MacLeod amacleod@faulkner.edu Professor of Law, Faulkner University. Email: amacleod@faulkner.eduSearch for more papers by this author First published: 16 July 2021 https://doi.org/10.1111/1468-2230.12667 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Volume84, Issue6November 2021Pages 1427-1446 RelatedInformation

Basic property concepts can solve persistent problems in the law governing the Internet. Concepts such as bailment can solve problems of access and third-party liability, while the concept of public accommodation licenses can solve access and authorization problems. Property solutions can also transcend national boundaries as property concepts appeal to universal, practical reason. Property serves a comprehensive purpose in the law governing data and the Internet. Familiar property concepts play a role in cyber law because they facilitate legal reasoning. And lawyers and judges have a practical need when resolving conflicts about access to and use of information. They need to resolve those disputes according to law. This essay briefly discusses how property concepts help them meet that need. The authoritative version is at https://iptheory.indiana.edu/cyber-trespass-and-property-concepts/

Property ownership is the dominion of persons. In the common law tradition, dominion is neither sole nor despotic. Hale, Blackstone, and other jurists have long drawn from Christian teaching, which portrays dominion as a delegation of power and authority to do good and creative acts within the natural world, entrusted by God to human persons. And common law jurists take their concept of property rights from the natural law tradition, which teaches that an owner's rights are limited by duties toward others. The boundaries of dominion are thus drawn in common law first by the law of wrongs, which directs owners not to violate their natural duties to others, and then by the norms and institutions of cooperative dominion, which directs owners to act for the common good.

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A new states rights movement is afoot. Like the old one, this movement asserts that governments have power to abrogate vested rights and to confer upon a class of politically influential people powers to eliminate the natural rights of vulnerable people. The influential people whose power is thereby enhanced are adults. The vulnerable people whose rights are at risk are children.

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States Energy last term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public, regulatory schemes.

Same-sex parenting advocates are calling on states' rights to define the legal relationship between parent and child. What they seek is the power to write the record of a child's origins and to determine a fundamental aspect of a child's identity.

Structurally, Congress in the Patent Act and the America Invents Act (AIA) preserved and established four distinct offices within Covered Business Method proceedings before the Patent Trial and Appeal Board (Board) — (1) accused infringer, (2) patentee, (3) the Patent Office, and (4) an agency which enjoys sovereign immunity and the power of eminent domain. It declared and incorporated the traditional rights and duties of accused infringers and patent owners to initiate and answer to proceedings concerning patent validity, while in the AIA it moved some of those proceedings from Article III courts to administrative proceedings before the Board. Congress extended to those proceedings the Patent Office’s power to initiate the determination of patent validity. All the while, it preserved the power of agencies other than the Patent Office to appropriate patent rights by eminent domain.

Every person has the ancient and fundamental right to equal treatment under the law. And every person has the ancient and fundamental right not to communicate a message they think is false. These rights are central to our legal and constitutional heritage. Far from competing with each other, they are mutually-reinforcing structural elements of American ordered liberty.The lesson of Masterpiece Cakeshop and Ashers Baking is that the common-law doctrine of public accommodations which the U.S. Supreme Court endorsed in Bell and Hurley remains the preferred means to avoid constitutional conflict between religion and expression liberties on one hand and rights of equal protection on the other. When a proprietor declines to provide a service, which would communicate a message that she wishes not to communicate, the reason for her declining—the reason because of which she declines in the language of public accommodation laws—is the message, not necessarily the person requesting the service. The qualified duty of proprietors not to discriminate in places of public accommodation is a duty not to discriminate intentionally, for an unlawful reason. It is a duty not to decline service because of a person’s status in a protected class. It is not a duty to prevent all undesirable consequence of one’s business decisions.

The now-conventional account of patent law holds that infringement is a strict liability offense, meaning that intent is not an element of an infringement claim. This account heightens the apparent injustice of patent law’s special knowledge problem, that as ambiguous descriptions of intangible resources, patent claims do not sufficiently make potential infringers aware of a patentee’s right to exclude. Particularly in the age of so-called “patent thickets,” clusters of patents of variable merit which are indistinguishable from each other and from prior art, strict liability for infringement seems rather hard. These problems reflect a conceptual misunderstanding. When infringement is understood as a species of trespass, as it was long described in American law, the various aspects of infringement doctrine fall into place. Common law traditionally recognizes three forms of trespass. Together, those three forms explain all of infringement doctrine as a coherent whole and resolve the apparent injustices that seem problematic on the conventional account of infringement. The only aspect of infringement doctrine that does not fit the trespass picture is the four-factor interpretation of eBay, which is contrary to the Justices’ insistence in eBay that they were neither overturning patent infringement doctrine nor disturbing traditional equitable maxims.

Richard Weaver was correct. Property jurisprudence in the last two decades has vindicated Weaver’s claim that property is the last metaphysical right. But Weaver was correct insofar as he had in mind a common-law property right. The lesson of the last three decades is that property is the last metaphysical right because and insofar as property dominion is the last pre-political source of obligation. The priority of property rights is rooted in the common law of wrongs. Because we have pre-political duties, we have pre-political liberties. Liberty grows out of a million discrete legal duties, each of those duties correlating exactly with the right of a human being, a moral agent, a possessor of practical reason. Remarks delivered at the Spring 2017 meeting of the Philadelphia Society in Dallas, Texas.

The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligation upon private persons and government officials. On the other side of the divide, scholars of law and jurisprudence have generally proceeded, since at least the rise of English positivism in the nineteenth century and the American legal realist movement in the early twentieth, as if the concept of vested right has little real meaning. This article attempts to explain the doctrine’s continued appeal and to discern some coherence in it while also accounting for the causes of skepticism.

The culture war has sprawled into the marketplace. Property is now sexy but also loaded with moral conflict. Baking or buying a cake, arranging or purchasing flowers, meeting with fellow students on a university campus for religious services, taking and posing for pictures, are all suddenly morally- and politically-freighted acts. Can law provide a peaceful solution to the present conflict between sexual-identity right claims and religious liberty? The purpose of this article is to argue that law, understood in its textured, common-law contours, can provide a more peaceful and reasonable solution than (a) positive law alone, (b) markets unmediated by law, and (c) peremptory claim-rights.