@article{levenbook_2020, title={A puzzle about legal systems and democratic theory}, volume={11}, ISSN={["2040-3321"]}, DOI={10.1080/20403313.2020.1726689}, abstractNote={ABSTRACT Older statutes sometimes alter the legal content of newer statutes in a way not apparent from the text of the newer statutes. The puzzle is how, even if a new statute is the choice of the current polis, the legal content created in part by the elderly statute is also the choice of the current polis. I consider several possible answers, including a legislative intent account and Dworkin’s, and argue that none of them is satisfactory. I then offer my own account, the De Re Account, which depends on distinguishing choosing under a description from choosing de re and noting that background norms and conventions sometimes determine what one does. In the case of legislation, because of the pragmatic norms for legal language and conventional practices against which a legislature acts, the legal content of the newer statute is chosen de re.}, number={2}, journal={JURISPRUDENCE-AN INTERNATIONAL JOURNAL OF LEGAL AND POLITICAL THOUGHT}, author={Levenbook, Barbara Baum}, year={2020}, month={Apr}, pages={157–168} }
 @article{levenbook_2006, title={HOW A STATUTE APPLIES}, volume={12}, ISSN={["1469-8048"]}, DOI={10.1017/s1352325206060241}, abstractNote={This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a limited job of accounting for the rationality of statutory promulgation. The theory developed here, social salience theory, does better on all counts. According to social salience theory, the default position is that statutes apply to act-tokens that are socially salient, given the linguistic and social contexts. The departure from that position is also social, produced by conventions to defer to experts on the statute's applications to particular cases.}, number={1}, journal={LEGAL THEORY}, author={Levenbook, Barbara Baum}, year={2006}, month={Mar}, pages={71–112} }
 @article{levenbook_2000, title={The meaning of a precedent}, volume={6}, DOI={10.1017/s1352325200062030}, abstractNote={A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents outside of law function as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Their import is independent of their justification; this point has implications for coherence theories of precedent meaning. The content and scope of a legal decision’s extension is not set exclusively by officials. It is socially set and depends upon social salience.}, journal={Legal Theory}, author={Levenbook, B. B.}, year={2000}, pages={185–240} }
 @article{levenbook_1999, title={Attempts as attacks}, volume={18}, DOI={10.1080/0731129x.1999.9992066}, abstractNote={R. A. Duff, Criminal Attempts Oxford: Clarendon Press, 1996, xxvii + 420 pp.}, journal={Criminal Justice Ethics}, author={Levenbook, B. B.}, year={1999}, pages={52–60} }
 @inbook{levenbook_1999, title={Disposition of remains}, volume={1}, ISBN={0815313446}, booktitle={Philosophy of law: an encyclopedia}, publisher={New York: Garland Publishing}, author={Levenbook, B. B.}, year={1999}, pages={216–219} }
 @article{levenbook_1995, title={Gender and the justification of precedent}, volume={94}, number={2}, journal={APA Newsletter}, author={Levenbook, B. B.}, year={1995}, pages={9–72} }
 @inbook{levenbook_feinberg_1993, title={Abortion}, ISBN={0070513309}, booktitle={Matters of life and death (3rd. ed.)}, publisher={New York: McGraw-Hill}, author={Levenbook, B. B. and Feinberg, J.}, year={1993}, pages={195–234} }
 @article{levenbook_1992, title={THE REALM OF RIGHTS - THOMSON,JJ}, volume={11}, ISSN={["0167-5249"]}, DOI={10.1007/BF01003986}, number={4}, journal={LAW AND PHILOSOPHY}, author={LEVENBOOK, BB}, year={1992}, pages={449–455} }
 @article{levenbook_1990, title={Are there any positive rights?}, volume={42}, journal={Archiv fur Rechts- und Sozialphilosophie}, author={Levenbook, B. B.}, year={1990}, pages={156–166} }
 @inbook{levenbook_1986, title={Is there a problem of justification? A reply to Fishkin}, booktitle={Justification in ethics, law & politics: Nomos XXVIII}, publisher={New York: NYU Press}, author={Levenbook, B. B.}, editor={Pennock, J. R. and Chapman, J. W.Editors}, year={1986}, pages={232–240} }
 @article{levenbook_1986, title={RESPONSIBILITY AND THE NORMATIVE ORDER ASSUMPTION}, volume={49}, ISSN={["0023-9186"]}, DOI={10.2307/1191626}, abstractNote={I should say at the outset that I agree with Professor Weinrebl in thinking that the utilitarian rationale for criminal punishment is inadequate, and in supposing what I will call the retributive creed: in order for criminal punishment to be justified, the person punished must deserve the punishment. I think that no one deserves punishment for bringing about some consequence unless he is morally responsible for that consequence, and I also think that at least some of the problematic rules of criminal liability discussed by Weinreb sometimes allow persons to be punished for consequences for which they are not morally responsible. Alternatively, these rules allow for punishment of those who are only partly morally responsible for the consequences of their actions, but not responsible enough to deserve punishment. It follows from these beliefs that the broad scope of these liability rules cannot be justified. Weinreb sets out to discover a way in which someone who accepts the retributive creed can nonetheless defend the felony murder rule and several other rules of criminal liability. He finds it in the ontological assumption of"a normative order." 2 It is extremely difficult to understand what he means by "a normative order" in a way that makes his claims consistent. He says that the assumption of a normative natural order is the assumption that "the causally determinate background of our actions is itself according to our desert."3 As I understand it, his assertion can be restated as follows: sometimes when one brings about x by doing y, one deserves all the causal conditions that, when combined with one's act, ensure that by doing y one brought about x. One also deserves all the conditions that cause one to do y. Both the causes of one's doing y, and those factors that, combined with one's doing y, resulted in one's bringing about x by doing y, are causal conditions of one's action of bringing about x. Admittedly, this interpretation is inconsistent with some of Weinreb's other assertions about the normative order assumption. In particular, it is hard to reconcile with his suggestion that the contradiction between responsibility and desert introduced by assuming a "causally determinate background of human action" is}, number={3}, journal={LAW AND CONTEMPORARY PROBLEMS}, author={LEVENBOOK, BB}, year={1986}, pages={81–88} }
 @article{levenbook_1986, title={THE SUSTAINED DWORKIN - DWORKIN,R}, volume={53}, ISSN={["0041-9494"]}, DOI={10.2307/1599596}, abstractNote={Unlike Dworkin's two previous books,' Law's Empire2 is not an anthology of separate essays, but a sustained work. It has a unity his previous books lack, using consistent terminology to develop a coherent set of arguments. For this reason alone, the book will be welcome even to those who disagree with Dworkin's major theses. The book is also welcome because in it Dworkin addresses objections to his view that he has previously ignored or misunderstood. Those who, like myself, find fault with some of Dworkin's fundamental points can still admit that Law's Empire, as is usual with Dworkin's work, is stimulating and original. For the sake of brevity, I shall concentrate on Dworkin's main theses and methodology. I omit his discussion of subsidiary issues, including his reply to critics; his criticism of positivism as what he calls "a semantic theory"; his detailed discussion of legislative intent and statutory interpretation (continued from A Matter of Principles); his view of when statutes are unclear; his criticisms of alternative theories of adjudication; and his critiques of historicism, passivism, and activism as theories of constitutional adjudication; I shall also pass over Dworkin's spirited attack on the Critical Legal Studies Movement, his enumeration of some of the difficulties he sees in the "speaker's meaning" thesis of legislative intent, and his reply to the economic analysis of tort law, though these issues are worthy of the reader's close attention. This is not}, number={3}, journal={UNIVERSITY OF CHICAGO LAW REVIEW}, author={LEVENBOOK, BB}, year={1986}, pages={1108–1126} }
 @article{levenbook_1985, title={HARMING THE DEAD, ONCE AGAIN}, volume={96}, ISSN={["0014-1704"]}, DOI={10.1086/292728}, abstractNote={There is one serious misconstrual and one plausible but ultimately unsatisfactory assumption in Don Marquis's criticisms.' A discussion of the first may be self-serving, but a discussion of the second will, I hope, advance the examination of posthumous harm. In "Harming Someone after His Death" I do not use the Epicurean argument against Feinberg's account of harm as the invasion of an interest.2 The difficulty with which I charge this account is not that, once the moment of death occurs, there is no subject who can be harmed; but that, on Feinberg's theory once the moment of death occurs, there is no subject who can be harmed.3 I do not endorse the claim that, once the moment of death occurs, there is no subject who can be harmed. Indeed, I think it is false: the subject who is harmed is the living-person-whowas. It is, undoubtedly, a difficulty that an account of the harm of murder (Feinberg's or Marquis's or mine) recognizes a harm to a person when the act that does the harm postdates him. This sounds suspiciously like backward causation. Yet that difficulty might be overcome. Someone might be able to give an account of losses according to which something can be a loss of X's even if X does not exist at the time of the loss. The problem for Feinberg is that he has given an account of interests according to which nothing can be an invasion of X's interest if X does not exist at the time of the invasion. (On this account of interests, it will be recalled, it is necessary to have capacitiesto have certain experiences in order to have interests at the time.) By his own theory, he cannot avoid the Epicurean objection. Marquis suggests an argument for adopting another account of interests, one that permits interests to be invaded even when interest holders do not exist. The argument is a version of my own argument for accepting}, number={1}, journal={ETHICS}, author={LEVENBOOK, BB}, year={1985}, pages={162–164} }
 @inbook{levenbook_1984, title={Examining legal restrictions on the retarded}, ISBN={9027716307}, DOI={10.1007/978-94-017-1480-8_16}, abstractNote={Discussions of the legal rights of the retarded have revealed that retarded people typically have both special privileges and special restrictions in the law. Among the privileges are a legal incompetent’s immunity in contract which, as Glanville Williams has pointed out, is really a liberty not to pay what would otherwise be his contractual debts.1 (Whether that liberty is really an advantage, which is what the term ‘privilege’ usually suggests, is another question.) Among the restrictions in most states is the denial to a legal incompetent of a right to marry. At some time or other, retarded people have been denied the legal right to vote, to decide whether and when to have children, to serve on juries, and the right as children to a free public education. Some of these restrictions are commonplace today. Such legal restrictions have often been criticized,2 or defended,3 by courts and legal writers without an appreciation of the complexity of the moral issues they raise. My purpose in this paper is to examine various assumptions one might make about the moral status of the retarded in order to support a conclusion that they should have certain legal restrictions. The moral arguments for certain legal restrictions are more complex than has been appreciated by proponents or opponents of restrictions in the legal literature.}, booktitle={Ethics and mental retardation}, author={Levenbook, B. B.}, editor={Kopelman, L and Moskop, J. C.Editors}, year={1984}, pages={209–221} }
 @article{levenbook_1984, title={HARMING SOMEONE AFTER HIS DEATH}, volume={94}, ISSN={["1539-297X"]}, DOI={10.1086/292557}, abstractNote={Can someone be harmed after his death? There is at least one reason to believe he can. Acts such as breaking a promise, destroying someone's reputation, and undermining someone's achievements can be harmful to him while he is alive, even if he never learns of them. These acts can also be done after his death; so, it is tempting to suppose, they can harm him then too. This sort of reasoning has persuaded a few philosophers, most notably Joel Feinberg, that it must be possible to harm someone after his death.' (Let us call this sort of harm posthumous harm.) Yet Feinberg believes that to harm someone is to invade his interests. It is not clear that people can retain interests after their death, particularly if one rejects all accounts of personal immortality, as Feinberg does. Ernest Partridge has recently defended the view that no one can be posthumously harmed because no one can retain interests after death.2 While this may at first seem a plausible argument, it too faces serious difficulty. Pointing out Partridge's difficulty, however, does not support Feinberg's position. Feinberg's account has the same difficulty because Partridge and Feinberg share similar assumptions about the natures of harm and interests. There is a need for a fresh start in answering the question of whether or not there can be posthumous harm. The first half of this essay demonstrates that need and provides a different account of the nature of harm. I shall argue for the possibility of posthumous harm based on an analysis of the harm of murder. It should be made clear at the outset that, like Feinberg, Partridge, and other recent disputants on this topic, I will rely neither on materialism as a theory of personal identity nor on an account of personal immortality. Puzzles about the nature and coherence of harm done to persons after}, number={3}, journal={ETHICS}, author={LEVENBOOK, BB}, year={1984}, pages={407–419} }
 @article{levenbook_1984, title={On universal relevance in legal reasoning}, volume={3}, DOI={10.1007/bf00211223}, journal={Law and Philosophy}, author={Levenbook, B. B.}, year={1984}, pages={1–23} }
 @article{levenbook_1984, title={THE ROLE OF COHERENCE IN LEGAL REASONING}, volume={3}, ISSN={["0167-5249"]}, DOI={10.1007/BF00654833}, number={3}, journal={LAW AND PHILOSOPHY}, author={LEVENBOOK, BB}, year={1984}, pages={355–374} }
 @article{levenbook_1981, title={Discretion and dispositive concepts}, volume={11}, DOI={10.1080/00455091.1981.10716326}, abstractNote={In this paper, I will argue against a way of approaching the issue of Judicial discretion that finds its clearest exposition and highest development in recent works by Ronald Dworkin. I will argue that this approach is too narrow, and that it ignores a kind of Judicial discretion whose existence has been maintained by Jurists with discretionist sympathies, and which is philosophically significant. The kind of discretion it ignores raises the issue of the Justification of adjudication as clearly as does the kind of discretion that it recognizes. Moreover, discussion of the kind of discretion ignored is in some respects the natural starting place for a discussion of Judicial discretion in general.}, journal={Canadian Journal of Philosophy}, author={Levenbook, B. B.}, year={1981}, pages={613–631} }
 @article{levenbook_1980, title={D-theories, discretion and the justification of adjudication}, volume={5}, journal={Social Theory and Practice}, author={Levenbook, B. B.}, year={1980}, pages={17–40} }
 @article{levenbook_1980, title={Prohibiting attempts and preparations}, volume={49}, journal={UMKC Law Review}, author={Levenbook, B. B.}, year={1980}, pages={41–63} }
 @article{levenbook_1980, title={That makes it worse}, volume={63}, journal={Monist}, author={Levenbook, B. B.}, year={1980}, pages={94–111} }
 @article{levenbook_1980, title={The Parti-resultantness of requirement: an explanation that failed}, volume={37}, journal={Philosophical Studies (Dordrecht, Netherlands)}, author={Levenbook, B. B.}, year={1980}, pages={17–40} }