Charles Barzun

Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in subtle but important ways on normative claims. Their argument assumes not only a positivist concept of law, but also that it counts in favor of an analysis of legal rights that it increases the number of options available to legal decisionmakers. Thus, whether Coleman and Kraus's analysis is right in the end depends on whether those normative assumptions are justified. If even their analysis, which makes the thinnest of conceptual claims, depends on normative premises, that fact serves as strong evidence of the difficulty of analyzing legal concepts while remaining agnostic on moral and political questions

Philosophers have debated whether the advance directives of Alzheimer’s patients should be enforced, even if patients seem content in their demented state. The debate raises deep questions about the nature of human autonomy and personal identity. But it tends to proceed on the assumption that the advance directive’s terms are clear, whereas in practice they are often vague or ambiguous, requiring the patient’s healthcare proxy to make difficult judgment calls. This practical wrinkle raises its own, distinct but related, philosophical question: what criteria may the proxy bring to bear when making such interpretive judgments on which the patient’s life may depend? After defending a general policy of enforcing advance directives on normative (rather than metaphysical) grounds, I argue that when advance directives are vague, a patient’s proxy may permissibly make her own fresh evaluation of the patient’s life as a whole and, in so doing, consider how the patient’s character as a demented person contributes or fails to contribute to that life.

A central assumption of modern evidence law is that its rules are rules of admissibility only. That is, they tell judges whether or not a given piece of evidence may be viewed by the fact-finder, but they do not purport to tell the finder of fact how to evaluate the evidence once admitted. One can imagine, however, a system of rules that help fact-finders weigh evidence by instructing them, for instance, that the law considers a class of evidence (say, hearsay) to be of "low weight." In fact, such rules - rules of weight - are an old idea with roots in Roman Law. But they have long been ignored by evidence scholars or, when considered, judged to be anachronistic and deeply inconsistent with a system of trial by jury. This Article argues that such hostility to rules of weight is unjustified and that their use should be taken seriously as a possible direction for evidence reform. Given that jury trials are now increasingly rare and that, when a jury is used, its discretion is already constrained in a number of ways, the orthodox view of rules of weight now itself seems outdated. Furthermore, there are reasons to think that such rules could be beneficial for forensic fact-finding. The past use of them by courts, their current role in administrative adjudication, and recent research in cognitive psychology all suggest ways in which rules of weight could make fact-finding fairer, more efficient, and, most important, more accurate. Such benefits make the Supreme Court's recent condemnation of the use of rules of weight in the administrative context that much more difficult to justify.