College of Arts & Humanities
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The collections in this community comprise faculty research works, as well as graduate theses and dissertations.
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Item The Defeasibility of Rights(2024) Gomez, Cody; Horty, John; Philosophy; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Consider the following puzzle. Presumably, you and I both have an equal right to life. But what happens if I try to kill you, and you kill me in self-defense? By most accounts, you did something morally permissible by killing me in this scenario. But, if killing me is permissible, then what happened to the initially granted right to life we both started out with? There is currently significant debate over how to explain this situation. Some have argued that my violent transgressions altogether forfeit my initial right. Due to my actions, I no longer have the right to life at all. Others have claimed that while I still generally have the right to life, this scenario satisfies criteria for a built-in exception to that standing right: I have the right in other cases, but not this one. Finally, others have suggested that I maintain my right to life in this scenario, but that it takes a lower priority in comparison to the right of the defendant, i.e., it is overridden. While the differences between these understandings of rights may appear subtle, they have drastically different implications. How we solve this puzzle affects how we adjudicate apparent conflicts of rights, how we make sense of what is owed when rights are intruded upon, and how rights function within our broader ethical and legal theories.In this dissertation, I develop a model of the last of these positions. To substantiate my view, I offer a precise model of the defeasibility of rights—situated in non-monotonic/default logic, a kind of non-classical logic—and highlight its strengths against competing views. Specifically, I show that this new schema not only salvages intuitions about infringement, but also prevents the unwieldy proliferation of rights. This is an especially desirable outcome, as it avoids blurring the line between rights and other important normative considerations. The first paper, Hohfeldian Conceptions of Rights and Rights Proliferation, argues that competing theories allow for wild proliferation of rights by adopting some form of the “correlativity doctrine,” wherein myriad duties and permissions are equivalent to rights, e.g., an act of charity no longer seems charitable if the recipient has “a right” to aid. The second paper, Rights as Defaults remedies this by rejecting the correlativity doctrine in favor of my Rights-as-Defaults Model. Using US free speech case law and work in default logic, I argue that fundamental rights are best understood as modifiable collections of defeasible generalizations. This model allows the right to free speech and its protections to accommodate new cases without building long lists of exceptions into the rights themselves while avoiding proliferation. Finally, the third paper, Revising the Right to do Wrong, applies this model to the question: do we have a moral right to do wrong? Do I have a moral right to offend a stranger even if I am required not to? I claim that there is no need for a standalone “right to do wrong” because understanding rights as defeasible means that any right can be overridden (or override competing considerations). I show how it is not paradoxical to say I have the right to offend you even though I, all-things-considered, should not, and even if we think interference would be justified.Item THE “UNEQUAL WRONGS AMENDMENT”: STATE COURT INTERPRETATIONS OF THE MARYLAND EQUAL RIGHTS AMENDMENT(2024) Justement, Shelly; Muncy, Robyn; History; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)This thesis answers the question: How did Maryland state courts’ interpretations of the Equal Rights Amendment (ERA) affect the amendment’s meaning? This thesis explores state courts’ interpretations of the amendment in seven cases involving child support, spousal abandonment, abortion, rape, women’s access to exclusively male clubs, and gay marriage between the years of 1972 and 2006. The state courts’ decisions regarding the Maryland ERA promoted legal equality without providing equity between men and women or heterosexual and homosexual couples. The state courts often interpreted the ERA in narrow ways that did not always benefit women’s rights, and indeed, this thesis demonstrates that the courts’ rulings in ERA cases did not produce material equality between men and women or queer and straight couples. The courts’ narrow interpretations of the ERA were reflected by the fact that the judges interpreted the words of the amendment literally without consideration of Marylanders’ socioeconomic realities; the judges limited the reach of the ERA to state actions, not the actions of private individuals or organizations; and the judges limited the application of the ERA to cases in which men and women were treated as separate classes. In examining the consistently narrow nature of the judicial interpretations of the ERA, this thesis acknowledges the limitations of the ERA for women’s as well as gay and lesbian rights in Maryland. While benefits to men did not inherently mean that the courts took rights away from women, the courts’ interpretations of the ERA ended up limiting women’s equity with men more often than promoting it.Item A Theory of Leadership and Its Applications(2023) Schwab, Leisa Elizabeth; Horty, John F; Philosophy; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)No system of laws and political institutions is without gaps, and leaders are required—often in the face of uncertainty and under a heavy burden of risk—to fill them. This project adopts a view of individual leadership that finds its roots in the ancient world with Plato, but which speaks to modern problems like the role of appointed administrative officials in a complex democracy and the problems of autonomous weapons. It is composed of a series of papers exploring this gap-filling leadership activity in a modern democratic state from both normative and descriptive perspectives. The first paper, “Making Ourselves Accountable: An Ethics for the Administrative State” addresses the discretionary decision making by un-elected officials through which many of our society’s important leadership decisions are made. It argues for the necessity of these leaders and recommends criteria to guide their decision making in conformity with contemporary democratic ideals. The second paper, “Seeking Standards for Leadership Reasoning in the Executive Branch by Analogy to Representation and Judicial Reasoning,” looks deeper into the work of such leaders to better understand the place of their role in shaping the law alongside legislative representation and judicial discretion. The third paper, “A Different Kind of Responsibility Gap: Trust and the Burden of Risk as a Limit on Military Automation” considers the problem of autonomous weapons in the context of this theory of the individual leader as a necessary component within the legal and institutional system. Inspired by ancient notions of the activity of governing as an activity fundamentally about leaders before it is about laws, it argues that even fallible human leaders who fall short of the ideal remain necessary no matter how sophisticated or accurate an automated system we may devise.Item The Paradox of Expertise: U.S. Abortion Law from 1973-2022(2023) Farhat, Aya H; Parry-Giles, Shawn; Communication; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)In the last fifty years, abortion rights in the United States have gone from being criminalized in most states, to being legal on a federal level, to being regulated through individual state legislatures. In 1973, the landmark abortion case Roe v. Wade granted fecund persons a federal right to abortion for the first time in this nation’s history. To do so, the Supreme Court conceived of abortion rights within a rhetoric of expertise. The Court relied on legal, medical, and personal conceptions of expertise as knowledge, procedure, and deference to ground abortion rights in a precedent of privacy tied to the trimester framework. Since its codification, multiple cases at the Supreme Court and lower court levels have challenged the precedent established in Roe. These challenges have worked to both protect and constrict fecund persons’ abortion rights to various degrees. Each of these post-Roe cases have reconfigured the triangulation of expertise to make sense of abortion rights in their particular political and temporal moments. For instance, the landmark abortion case Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) sought to reinforce the precedent in Roe by clarifying its legal and medical inconsistencies with the undue burden standard. Thirty years later, the Court in Dobbs v. Jackson Women’s Health Organization (2022) decided such inconsistencies warranted returning the abortion decision back to the states. The ability for abortion rights to undergo such a significant shift legally exposes the rhetorical paradox of expertise. The last fifty years of abortion law indicates the inability of legal and medical knowledge and procedures to consistency define the boundaries of legal abortion. But it also shows how the Court has deferred to these expert institutions time and time again to first expand, and then constrict, fecund persons’ personal expertise over the abortion decision. The Paradox of Expertise explores the complex triangulation of expertise in abortion law through an analysis of three pivotal U.S. Supreme Court cases: Roe (1973), Casey (1992), and Dobbs (2022). In each of these cases, the justices interpreted this triangulation in differential ways to shift the boundaries of legal abortion. In Chapter One, I explore how Roe read the legal-medical history of abortion to authorize the trimester framework and regulate fecund persons’ abortion rights and expertise. By regulating abortion through the trimester framework, the Court entangled legal, medical, and personal expertise in a complex web that ultimately privileged legal and medical expertise throughout a fecund person’s pregnancy. In Chapter Two, I analyze Casey to show how the Court responded to the ambiguities presented by the trimester framework. In Casey, the Court reinterpreted the precedent in Roe to affirm abortion rights under an undue burden standard. Because the Court failed to define this standard in a consistent manner, future courts continued to battle over the ambiguities of abortion law. In Chapter Three, I examine the decision in Dobbs to show how such legal battles over expertise allowed the Court to reinterpret abortion history and warrant returning the abortion issue back to the states. But because the Dobbs Court failed to clarify the past inconsistencies in abortion law, state legislators, medical physicians, and fecund persons struggle to make sense of the legal, medical, and personal barriers to abortion access in the present moment. Today, the current landscape of abortion politics is still mired in the paradox of expertise that foreshadows the long road ahead for pro-abortion advocates and those seeking abortion access and care.Item WAITING ON “THE HIGHER LAW”: HENRY MASSEY AND THE STRUGGLE AGAINST PHILADELPHIA’S FUGITIVE SLAVE COURT(2023) LaRoche, Matthew David; Bonner, Christopher J; History/Library & Information Systems; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Philadelphia’s preeminence as an historical hub of Underground Railroad activity, popularized through the exploits of William Still, is well established. However, a series of archival gaps have virtually erased Philadelphia, and particularly the early years of its fugitive slave court, from the wider historiography of the Fugitive Slave Act of 1850. This work attempts to re-center Philadelphia, as well as its white-led abolitionist organizations and its African American community, in the scholarly discussion over the Act’s origin, intent, and effect. Attempting to overcome archival limitations, this work reconstructs the city’s first fugitive slave court, overseen by Commissioner Edward D. Ingraham from December of 1850 until his death in November of 1854, through the eyes of its participants. Using a close-reading approach, this thesis considers Philadelphia’s resistance to both the Ingraham court and the Act in toto from three perspectives. By comparing the case of Adam Gibson (the first victim of the Ingraham court) to that of Henry Massey, a Maryland freedomseeker and the last person sentenced before Ingraham’s death, this thesis establishes a documentary baseline through which one can trace the court’s evolution across the opening years of the Act’s enforcement. Through recreating the personal and institutional histories of Commissioner Ingraham, the Pennsylvania Abolition Society, and the abolitionist lawyers who represented Gibson, Massey, and other freedomseekers, this thesis provides context to evaluate the legal, social, and religious moves made by the city’s elite in response to the Act’s passage. Finally, by drawing out indications of black organization and agency hidden within the internal records of the Abolition Society itself, this thesis attempts to delineate the practical limits of interracial abolitionist cooperation within Philadelphia at the time. Ultimately, this thesis finds that a combination of geographic pressures and ideological guardrails particular to Philadelphia prevented a stronghold of abolitionist outrage from forming an effective counter to the Act, even while comparable cities (Boston, Syracuse, Harrisburg) developed legal and illegal strategies for shutting down their resident fugitive slave courts.Item A New Theory of Individualized Evidence(2021) Barclay, Charles Arthur; Horty, John F; Philosophy; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Theories of individualized evidence have been offered to show why, inter alia, we are not justified in finding a defendant legally responsible on the basis of mere statistical evidence even if the probability of his guilt is very high. Yet, there is little discussion of properties that we would want in a robust theory of individualized evidence. In my dissertation, I have four primary goals. First, I propose four desiderata that a robust theory of individualized evidence ought to possess. Then, I show how many contemporary theories of individualized evidence do not possess all four of the desirable properties. I then develop, what I call, legally relevant alternatives (or, LRA for short) - a theory of individualized evidence that is rooted in the relevant alternatives account of knowledge in epistemology. Finally, I show how LRA does satisfy the aforementioned desiderata.Item The Exiles' Return: Emigres, Anti-Nazis, and the Basic Law(2021) Miner, Samuel James; Herf, Jeffrey; History; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)This dissertation traces the historical origins of several novel features of the postwar West German Constitution (Basic Law). Next to a legally enforceable catalogue of basic rights, the novelty of the 1949 Basic Law lay in articles outlining the forfeiture of those basic rights for any individual, organization, or political party who fights against the “fundamental liberal-democratic order.” This is a pillar of “militant democracy,” a term invented by the emigre jurist Karl Loewenstein, but a feature of German constitutionalism since it uses by the Federal Constitutional Court. That court occupies the position of “guardian of the constitution” in postwar Germany. Postwar “new German constitutionalism” (Kommers) was largely a project of the parliamentary left. Despite their historical aversion to judicial power, postwar German anti-Nazis transferred tremendous powers to the judiciary, especially state and federal constitutional courts. The following dissertation is a collective intellectual biography of the key anti-Nazi and emigre constitutional framers behind the state and federal constitutions. It examines their lives between the Nazi seizure of power in 1933 and the late 1950s, when the Federal Constitutional Court established itself as the final arbiter of German law. The Federal Constitutional Court with its powers of judicial review was not an American export. Rather, it was a German response to the circumstances of postwar occupied Germany. Judicial review came to Germany as an anti-Nazi measure designed to prevent the continued use of Nazi statutes in defense of war criminals. Judges in Allied-occupied Germany were asked to review statutes for their adherence to principles of justice to avoid light sentences for Nazi criminals. To counter the tendencies of a reactionary judiciary, anti-Nazi jurists campaigned for a lay judiciary with mixed results. The state constitutions of the American occupation zone provided the prototype for how a “militant democracy” would function in postwar West Germany. The state constitutions were anti-Nazi documents written in response to the horrors of the Second World War and the Holocaust. The framers of the state constitutions came from the ranks of recent re-emigrants and concentration camp survivors. The following dissertation examines their contributions to postwar law and politics.Item Invoking Justice(2016) Stedge, Curtis; Phillips, Miriam; Dance; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Invoking Justice, a performative work of dance-theater, is a social commentary, both on the failure of the American justice system to balance the scales, and on our individual and collective failings to balance our communities, and ourselves, while recognizing our inherent unity and interconnectedness. The show was performed on March 10th and 11th, 2016 in the Clarice Smith Performing Arts Center, at the University of Maryland, College Park. This document is a survey of the creative process through which this project was realized and serves as a record of the many obstacles and successes that one might encounter in directing a work of dance-theater.Item Deep River: Slavery, Empire, and Emancipation in the Upper Mississippi River Valley, 1730-1860(2013) Heerman, Matthew Scott; Berlin, Ira; History; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)"Deep River" offers a continental perspective on human bondage and emancipation in mainland North America. It unearths the deep history of indigenous and African slavery in the upper Mississippi River Valley and traces its connections outward toward the Atlantic and Gulf coasts. "Deep River" argues for a new spatial frame for the history of slavery and freedom to understand how colonial experiences in the upper Mississippi River Valley shaped the trajectory of emancipation in the United States. It also offers new perspectives on the history of emancipation by exposing free and enslaved black agency to eradicate slavery from Illinois. "Deep River" moves past legal categories as an organizing framework for slave and free societies. It demonstrates that inheritable bondage long survived its legal abolition. Displacing laws as the engine of change, it argues the collaborations between free black migrants, fugitive slaves, and white anti-slavery activists drove the processes of emancipation forward. Free and fugitive migrants into Illinois settled in black freedom villages which afforded slaves limited access to capital, avenues toward finding attorneys, and support in legal proceedings. In this way, Illinois's movement to a free society sprang from domestic migrations and a longer colonial legacy of trade and settlement in the Mississippi Valley, not laws and statutes passed by the United States. By focusing on the ways in which black northern migration and litigation in local courts shaped emancipation in the state, "Deep River" illuminates how legal and political development in Illinois followed the paths that enslaved African Americans created.Item People at Law: Subordinate Southerners, Popular Governance, and Local Legal Culture in Antebellum Mississippi and Louisiana(2012) Welch, Kimberly Mae; Berlin, Ira; History; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)"People at Law: Subordinate Southerners, Popular Governance, and Local Legal Culture in Antebellum Mississippi and Louisiana" uses manuscript civil and criminal court records, church disciplinary hearings, newspaper accounts of trials, and the personal papers of judges and lawyers to investigate the relationship between subordinated people and the law in the Natchez District of Mississippi and Louisiana from 1820 to 1860. This project asks if local courts provided white women and free and enslaved blacks with a platform to improve their lives. Although denied many legal rights and excluded from formal political arenas, white women and African Americans positioned themselves as astute litigators. They frequently went to court to redress wrongs done to them and to make public demands on those in positions of authority. Knowledge of the southern legal system, coupled with the ability to harness their own community networks, gave them a degree of power: the power to improve their immediate situations and, on occasion, the power to bend others to their will. Part of the reason for the success of the challenges subordinates mounted in court against their husbands, masters, and social betters was the limited nature of the challenges themselves. Rather than attempting to confront the planter class directly and dismantle the larger social system, they appealed to notions of justice and fairness that they insisted all southerners shared. When white women and African Americans (male and female) used local courts to constrain the power of their superiors, they in effect confirmed their subordination by making patriarchal marriage and the institution of slavery work according to the highest southern ideal. But in the process, courts disciplined adulterous husbands and brutal masters. Setting limits on the unrestrained behavior of husbands or slaveholders helped uphold the legitimacy of hierarchical marriage and slavery, to be sure. Still, it also allowed wives (white and black), free people of color, and slaves to turn their subordination into a legal strategy. While they did not overthrow the system of power that subordinated them, white women, free blacks, and slaves used the courts to help define what their place in that system would entail.