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Articles 61 - 90 of 126
Full-Text Articles in Law
“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Brennan
“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Brennan
Patrick McKinley Brennan
John Locke understood human happiness to amount to the removal of "uneasiness." This paper argues that,to the extent that the United States is a nation dedicated to "the pursuit of happiness" understood as the removal of "uneasiness," same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation's being …
Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Brennan
Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Brennan
Patrick McKinley Brennan
This is my Introduction to Legal Affinities: Explorations in the Legal Form of Thought (forthcoming 2012) (co-edited with H. Jefferson Powell and Jack Sammons), a volume of essays dedicated to exploring the work of Joseph Vining. The Introduction introduces Vining’s phenomenology of law and surveys the themes and topics developed by the volume’s eight authors: Joseph Vining, Judge John T. Noonan, Jr., Rev. John McCausland, H. Jefferson Powell, Jack Sammons, Steve Smith, James Boyd White, and Patrick Brennan.
New Paths For The Court: Protections Afforded Juveniles Under Miranda; Effective Assistance Of Counsel; And Habeas Corpus Decisions Of The Supreme Court’S 2010/2011 Term, Richard Klein
Richard Daniel Klein
No abstract provided.
Border Searches In The Age Of Terrorism, Robert M. Bloom
Border Searches In The Age Of Terrorism, Robert M. Bloom
Robert Bloom
This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have …
Jailhouse Informants, Robert M. Bloom
Stretching The Adjudicative Paradigm: Another Look At Judicial Policy Making And The Modern State, Daniel A. Farber
Stretching The Adjudicative Paradigm: Another Look At Judicial Policy Making And The Modern State, Daniel A. Farber
Daniel A Farber
Reviews the book 'Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons,' by Malcolm Feeley and Edward Rubin.
Violence And Social Repair: Rethinking The Contribution Of Justice To Reconciliation, Laurel E. Fletcher, Harvey M. Weinstein
Violence And Social Repair: Rethinking The Contribution Of Justice To Reconciliation, Laurel E. Fletcher, Harvey M. Weinstein
Laurel E. Fletcher
This article explores limitations of international criminal trials that assign accountability for mass atrocities to individuals, and offers a model to understand the contribution of trials to social reconstruction. In the last decade, there has been a burgeoning interest in the question of how countries recover from episodes of mass violence or gross human rights violations. This interest has focused on the concept of transitional justice, a term used to describe the processes by which a state seeks to redress the violations of a prior regime. Despite the fact that military and political leaders who ordered or directed mass terror …
A Fatal Loss Of Balance: Dred Scott Revisited , Daniel A. Farber
A Fatal Loss Of Balance: Dred Scott Revisited , Daniel A. Farber
Daniel A Farber
This essay focuses on three aspects of the Dred Scott opinion: its effort to ensure that blacks could never be citizens, let alone equal ones; its deployment of a "limited government" argument for a narrow interpretation of Congress's enumerated power over the territories; and its path-breaking defense of property rights against government regulation. These constitutional tropes of racism, narrowing of federal power, and protection of property were to remain dominant for another seventy-five years. Apart from the failings of the opinion itself, Dred Scott also represents an extraordinary case of presidential tampering with the judicial process and a breakdown in …
"Standing" In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn Koppel
"Standing" In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn Koppel
Glenn Koppel
Abstract “Standing” in the Shadow of Erie: Federalism in the Balance in Hollingsworth v. Perry In Hollingsworth v. Perry, one of the two same-sex marriage cases decided by the Supreme Court in 2013, the Court declined to address the constitutionality of California’s Proposition 8, finding that the initiative proponents lacked standing to appeal the district court’s judgment declaring the proposition unconstitutional and enjoining its enforcement. Since the State’s Governor and Attorney General declined to appeal, the proponents sought to assert the State’s particularized interest in the proposition’s validity. State law, as interpreted by the California Supreme Court, grants authority to …
The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles H. Baron
The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles H. Baron
Charles H. Baron
In the mid-19th century, when the United States was confronted with daunting changes wrought by its expanding frontiers and the advent of the industrial revolution, its state supreme courts developed the principles of law which facilitated the nation's growth into the great continental power it became. First in influence among these state supreme courts was the Supreme Judicial Court of Massachusetts-whose chief justice, Lemuel Shaw, came widely to be known as "America's greatest magistrate." It is this tradition that the court brings with it as it develops its place in the "new constitutional revolution" presently sweeping our state supreme courts. …
The Concept Of Person In The Law, Charles Baron
The Concept Of Person In The Law, Charles Baron
Charles H. Baron
The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by …
Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron
Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron
Charles H. Baron
In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …
Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron
Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron
Charles H. Baron
The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of "proxy consent" question involved in that case required for its decision "the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's …
Oil And Gas Joint Operating Agreements: Default Provisions, A Dilemma By Default, Yanal Abul Failat, Birgitte Jensen
Oil And Gas Joint Operating Agreements: Default Provisions, A Dilemma By Default, Yanal Abul Failat, Birgitte Jensen
Yanal Abul Failat
English law is often the law of choice in complex and high value contracts where issues such as remedies, default, limitation of liability and financing are paramount. Further, English law affords JV partners comfort that their JV agreement will be construed in accordance to its own terms and cannot be declared void on technical grounds as no codified structure exists. However, as the attitudes of the English courts remain uncertain on the question of forfeiture and whether such a remedy would be held to be a penalty, JV partners must tread carefully when agreeing the default provisions in their JOA. …
Understanding The Law Of Evidence Through The Lens Of Signal-To-Noise, Alex Stein
Understanding The Law Of Evidence Through The Lens Of Signal-To-Noise, Alex Stein
Alex Stein
No abstract provided.
Roscoe Pound Round-Table Discussion, Judith Resnik, Leroy Rountree Hassell Sr., Margaret H. Marshall, Clifford W. Taylor, Lucy A. Dalglish, Luke Bierman, Mark S. Curriden
Roscoe Pound Round-Table Discussion, Judith Resnik, Leroy Rountree Hassell Sr., Margaret H. Marshall, Clifford W. Taylor, Lucy A. Dalglish, Luke Bierman, Mark S. Curriden
Luke Bierman
Conference of Chief Justices and Conference of State Court Administrators Annual Meeting July 29-August 2, 2006 Indianapolis, Indiana.
Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm
Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm
Michael Blumm
This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law--the "Colorado Doctrine"--lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lochean principles such as widespread distibution of water …
Is There A Perfect Environment For A Villain And Villainess To Thrive?, Kim Weinert
Is There A Perfect Environment For A Villain And Villainess To Thrive?, Kim Weinert
Kim Weinert
Any form of a non-profit organisation possesses universal characteristics that differentiate them from being a household, a corporate or a government agency. The fundamental characteristic of non-profit organisations, which delineates them from other types of organisations, is the undercurrent of trust and altruism from the individuals in control, who achieve the organisation's charitable aims and for those individuals not to gain any personal benefits along the way. In many instances, however, the notion of charity takes a back seat to obtaining a personal benefit. The practice of opportunistic management and abusing a position of trust by individual/s within a non-profit …
Parades Of Horribles, Circles Of Hell: Ethical Dimensions Of The Publication Controversy, David S. Caudill
Parades Of Horribles, Circles Of Hell: Ethical Dimensions Of The Publication Controversy, David S. Caudill
David S Caudill
No abstract provided.
The United States Supreme Court: A Creative Check Of Institutional Misdirection?, Fletcher N. Baldwin
The United States Supreme Court: A Creative Check Of Institutional Misdirection?, Fletcher N. Baldwin
Fletcher N. Baldwin
In the Comment which follows Professor Baldwin presents a brief for an extremely creative Supreme Court. In contrast to those who suggest limiting the function of the Court, either by subject matter or by judicial restraint, the author would have it protect the compact upon which the community is based, by taking an active role to insure that the compensation implied in the compact flows in fact not only to the community but to the individual.
The Unblinking Eye Turns To Appellate Law: Cameras In Trial Courtrooms And Their Effect On Appellate Law, Mary E. Adkins
The Unblinking Eye Turns To Appellate Law: Cameras In Trial Courtrooms And Their Effect On Appellate Law, Mary E. Adkins
Mary E. Adkins
Over the past twenty years, most American courthouses have been wired with audio and video recording equipment to enhance security and economize on court reporting costs. These in-house alterations have an overlooked consequence for appeals. The mere existence of these recordings of all courtroom occurrences will unavoidably change the way appeals are handled and reviewed. Appellate courts will need to make new types of decisions on whether to accept the audio-video recordings as appellate records or continue the reliance on transcripts and items entered into evidence. If the appellate courts do not accept audio-video recordings as appellate records, or if …
Why Justice Ginsburg Should Step Down, Kent Greenfield
Why Justice Ginsburg Should Step Down, Kent Greenfield
Kent Greenfield
No abstract provided.
To Administer Justice On Behalf Of All The People: The United States District Court For The Eastern District Of New York 1965-1990, Jeffrey Morris
To Administer Justice On Behalf Of All The People: The United States District Court For The Eastern District Of New York 1965-1990, Jeffrey Morris
Jeffrey B. Morris
No abstract provided.
Establishing Justice In Middle America: A History Of The United States Court Of Appeals For The Eighth Circuit, Jeffrey Morris
Establishing Justice In Middle America: A History Of The United States Court Of Appeals For The Eighth Circuit, Jeffrey Morris
Jeffrey B. Morris
No abstract provided.
Calmly To Poise The Scales Of Justice: A History Of The Courts Of The District Of Columbia Circuit, Jeffrey Morris, Chris Rohmann
Calmly To Poise The Scales Of Justice: A History Of The Courts Of The District Of Columbia Circuit, Jeffrey Morris, Chris Rohmann
Jeffrey B. Morris
No abstract provided.
Leadership On The Federal Bench: The Craft And Activism Of Jack Weinstein, Jeffrey Morris
Leadership On The Federal Bench: The Craft And Activism Of Jack Weinstein, Jeffrey Morris
Jeffrey B. Morris
No abstract provided.
Bringing Light To The Halls Of Shadow, Richard J. Peltz-Steele
Bringing Light To The Halls Of Shadow, Richard J. Peltz-Steele
Richard J. Peltz-Steele
Appellate judges operate in the shadows. Though they don’t see it that way. “We are judged by what we write,” said U.S. Supreme Court Justice Anthony Kennedy. True too, court proceedings and records are presumptively open to the public. The West Wing of the White House is certainly not so vulnerable to public scrutiny, and the backrooms of legislative chambers are famously smoke-filled. Yet the parts of court activity that we see and hear seem only to whet our appetite for the rest of the process. In this Preface, the author introduces the subject of the journalist and the court, …
Drafting New York Civil-Litigation Documents: Part Xxv—Notices To Admit, Gerald Lebovits
Drafting New York Civil-Litigation Documents: Part Xxv—Notices To Admit, Gerald Lebovits
Hon. Gerald Lebovits
No abstract provided.
What The Jury Must Hear: The Supreme Court’S Evolving Seventh Amendment Jurisprudence, Margaret L. Moses
What The Jury Must Hear: The Supreme Court’S Evolving Seventh Amendment Jurisprudence, Margaret L. Moses
Margaret L. Moses
No abstract provided.
October Term: 1999: The Supreme Court's Last Term Of The Twentieth Century, Increasing Deference To Administrative Agencies, Allen E. Shoenberger
October Term: 1999: The Supreme Court's Last Term Of The Twentieth Century, Increasing Deference To Administrative Agencies, Allen E. Shoenberger
Allen E Shoenberger
No abstract provided.