Papers by Claire Finkelstein
Oxford Scholarship Online
The Presidency of Donald Trump poses a deepening challenge to democratic theory: How could a demo... more The Presidency of Donald Trump poses a deepening challenge to democratic theory: How could a democracy designed so carely around rule of law governance be so lacking in resources against a president who seems determined to dismantle the rule of law? The country seems to be largely helpless in the face of Trump’s repeated challenges to the limits of executive authority and his rejection of both legal and customary constraints on presidential power. The challenge is perceived as so serious that some have charged we are in the process of instituting an “imperial presidency,” an accusation that at present seems compelling. The mistake, however, lies in thinking that this presents a new situation. The current expansion of executive authority did not start with the current administration. Since 9/11, there has been a steady augmentation of presidential power relative to the other two branches of government, with the result that the other branches have become steadily weaker relative to th...
Oxford Scholarship Online
This chapter considers the relationship between the principle of distinction and the idea that co... more This chapter considers the relationship between the principle of distinction and the idea that combatants are “morally equal” on the battlefield. This relationship is of particular interest, as well as complexity, in so-called asymmetric warfare, namely warfare between traditional state actors and non-state actors such as ISIS or al-Qaeda. It argues that an essential concept for understanding the moral equality principle is that of role responsibility. The notion of role responsibility, where it applies, has the effect of isolating the rights and duties that pertain to the actor from other segments of morality and enables morality to be discontinuous across its various domains. The result is that two principles of right may conflict with one another across the various domains to which they apply. This explains how a combatant can be on the wrong side of a conflict and yet have the right to kill an opposing combatant in war. The idea is challenging to extend to asymmetric war.
Ethics & International Affairs
1. Targeted Killing: A Legal, Practical and Moral Analysis. 2. Is Targeted Killing Ever Justified... more 1. Targeted Killing: A Legal, Practical and Moral Analysis. 2. Is Targeted Killing Ever Justified?. 3. Targeting Co-Belligerents. 4. Ethics in Extremis: The Morality of Hard Choices. 5. Targeted Killings and Cyclical Choices. 6. Like Playing Whack-A-Mole Without a ...
Ssrn Electronic Journal, 2002
*Professor of Law, University of Pennsylvania. I am grateful to Michael Davis, my commentator fro... more *Professor of Law, University of Pennsylvania. I am grateful to Michael Davis, my commentator from the American Philosophical Association Eastern Division meeting, and to Stephen Morse, my commentator at the Penn faculty retreat, as well as to my other colleagues at ...
California Law Review, 2000
In "The Decline of Innocence," Sanford Kadish presents an eloquent defe... more In "The Decline of Innocence," Sanford Kadish presents an eloquent defense of the notion of mens rea against Lady Wooton's famous call for its elimination. His basic thought is that the criminal law's mental state requirement reflects our commitment to values of autonomy. He writes: ...
California Law Review, 2000
In "The Decline of Innocence," Sanford Kadish presents an eloquent defe... more In "The Decline of Innocence," Sanford Kadish presents an eloquent defense of the notion of mens rea against Lady Wooton's famous call for its elimination. His basic thought is that the criminal law's mental state requirement reflects our commitment to values of autonomy. He writes: ...
Law and Social Economics, 2015
Insights for the 21st Century, 2012
Legal Theory, Sep 1, 2001
Page 1. CLAIREOAKESFINKELSTEIN TwoMenandaPlank TWO MEN AND A PLANK Claire Oakes Finkelstein* Univ... more Page 1. CLAIREOAKESFINKELSTEIN TwoMenandaPlank TWO MEN AND A PLANK Claire Oakes Finkelstein* University of Pennsylvania Law School I. INTRODUCTION Can two individuals, each of whom needs a certain resource ...
University of Pennsylvania Law Review
Punishment & Society, 2004
I In 'Penance, punishment, and the limits of community,' Antony Duff continues ... more I In 'Penance, punishment, and the limits of community,' Antony Duff continues the exploration of his rich and interesting 'communicative' theory of punishment, an approach to punishment he has developed at greater length in his previous works. I wish to begin my comments ...
Criminal Justice Ethics, 2002
Death and Retribution / 12 Death and Retribution CLAIRE FINKELSTEIN I Introduction It is often su... more Death and Retribution / 12 Death and Retribution CLAIRE FINKELSTEIN I Introduction It is often supposed that a theory of punishment predi-cated on desert lends support to the death penalty. What leads to this assumption is a prior thought about the appropriate ...
Criminal Law Theory, 2002
The Rule of Law and the Prosecution of the Bush Administration, 2010
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Papers by Claire Finkelstein