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Articles 1 - 30 of 32
Full-Text Articles in Law
Professor Fuller's Jurisprudence And America's Dominant Philosophy Of Law, Robert S. Summers
Professor Fuller's Jurisprudence And America's Dominant Philosophy Of Law, Robert S. Summers
Cornell Law Faculty Publications
The late Lon L. Fuller played an influential role in the development of American jurisprudence, but his views have not always prevailed. In this tribute to the memory of Professor Fuller, Professor Summers outlines the major tenets of what he perceives to be our dominant philosophy of law – “pragmatic instrumentalism” – by way of contrasting that philosophy with the views of Professor Fuller. Professor Summers concludes that these two philosophies differ in many important respects and that our dominant philosophy of law should accommodate, and may indeed already be in the process of accommodating, the thought of Professor Fuller.
Beyond Legitimacy, Steven Wisotsky
Beyond Legitimacy, Steven Wisotsky
University of Miami Law Review
The author analyzes the scholarly debate over the legitimacy of the institution of judicial review. He suggests that, as a reaction to unjustified criticism of the institution, defenders of judicial review have articulated propositions which advance constitutional jurisprudence beyond the issue of legitimacy. He argues that the time has come for courts to de-emphasize prudential considerations and to concentrate on the substantive correctness of their decisions and on the standards of review which the courts employ.
The Judging Class, Kenneth M. Casebeer
The Judging Class, Kenneth M. Casebeer
University of Miami Law Review
The author traces the common thread running through the analysis of judicial review by the symposium speakers. He posits that while all three speakers support equally activist positions, their allegiance to divergent values and political theories results in their opposed statements on the activist debate. He compares the dialogue in this symposium to that of the Justices in the 1940's, which discourse explicitly was grounded in a struggle over values. The author concludes that courts must structure the form of their opinions in a manner which clearly demonstrates the relationship between the chosen social values and the resulting decision.
The Adversary Society: Keynote Address Of The Third Annual Baron De Hirsch Meyer Lecture Series, William H. Rehnquist
The Adversary Society: Keynote Address Of The Third Annual Baron De Hirsch Meyer Lecture Series, William H. Rehnquist
University of Miami Law Review
In recent years litigants have pressed the courts to resolve disputes which were formerly regulated by other social and political institutions. Mr. Justice Rehnquist stresses the crucial importance of nongovernmental institutions in our society. He discusses the need to evaluate the disruptive effect of an adversary proceeding between parties who must continue in an ongoing relationship after their dispute has been settled. The author then suggests that in order to preserve certain social institutions, limits must be placed on the use of adversary proceedings.
The Courts And Social Policy: Substance And Procedure, Henry J. Friendly
The Courts And Social Policy: Substance And Procedure, Henry J. Friendly
University of Miami Law Review
Judge Friendly admits that the courts must address themselves in some instances to issues of social policy. He would prefer, however, that a court rest its decision on an ascertainable jural principle rather than support its decision on the basis of its conception of what is desirable social policy. When courts do rely on social or economic data, they should observe procedural fairness as a goal in its own right and as a tool towards obtaining correct and complete information. When the economic and social data is indeterminate, a court should refuse to base its decision on such information. If …
Seven Pluralist Fallacies: In Defense Of The Adversary Process-A Reply To Justice Rehnquist, Laurence H. Tribe
Seven Pluralist Fallacies: In Defense Of The Adversary Process-A Reply To Justice Rehnquist, Laurence H. Tribe
University of Miami Law Review
The author analyzes the role of litigation in a pluralistic society through his discussion of the "pluralist's fallacies," seven characteristic errors underlying much opposition to judicial activism. He advocates a large and active role for the adversary process in order to ensure that less established groups have a forum in which to protect their interests.
Authority And Autonomy: The State, The Individual And The Family, M. David Gelfand
Authority And Autonomy: The State, The Individual And The Family, M. David Gelfand
University of Miami Law Review
This commentary focuses primarily upon the views expressed by Justice Rehnquist in his de Hirsch Meyer lecture. The author argues that a corollary to Justice Rehnquist's view that the judiciary should defer to the authority of private institutions over the individual, to protect those institutions, would be to adopt a judicial attitude of supporting private institutions against legislative interference. An examination of Justice Rehnquist's judicial opinions in the area of constitutional family law reveals exactly the opposite position. The author concludes that Justice Rehnquist's position of judicial deference to legislative decisions over the family may lead to destruction of the …
The Right To Counsel In Police Interrogation Cases: Miranda And Williams, Mitchell Leibson Chyette
The Right To Counsel In Police Interrogation Cases: Miranda And Williams, Mitchell Leibson Chyette
University of Michigan Journal of Law Reform
This article will consider some of the theoretical and practical ramifications of the Williams decision and compare its protections to the protections offered by Miranda. The article, focussing on the right to counsel, discusses the nature of the police conduct which is prohibited by each decision, the time at which the protections involved become effective, and the standard by which a waiver of the rights will be measured. The article concludes that there may be significant differences in the application of the two cases and that a uniform rule based on the sixth amendment may be superior to the …
Reflections On A Unified Theory Of Motive, Theodore Eisenberg
Reflections On A Unified Theory Of Motive, Theodore Eisenberg
Cornell Law Faculty Publications
No abstract provided.
Glosses On Dworkin: Rights, Principles, And Policies, Donald H. Regan
Glosses On Dworkin: Rights, Principles, And Policies, Donald H. Regan
Articles
A great many people have attempted to explain what is wrong with the views of Ronald Dworkin. So many, indeed, that one who read only the critics might wonder why views so widely rejected have received so much attention. One reason is that, whatever may be wrong in Dworkin's theories, there is a good deal that is right in them. But what is right is not always clear. Important passages in Dworkin can be distressingly obscure, or tantalizingly incomplete. This essay is a set of loosely connected observations on themes from Dworkin. While I shall add some criticisms of my …
The Implications Of "Resegregation" For Judicially Imposed School Segregation Remedies, Charles T. Clotfelter
The Implications Of "Resegregation" For Judicially Imposed School Segregation Remedies, Charles T. Clotfelter
Vanderbilt Law Review
This Article examines the implications of changing racial patterns--particularly those tending to resegregate schools--as they bear on the formulation of judicial remedies for school segregation. The Article considers both the effect of changing residential racial patterns upon racial patterns in schools and the effect of school desegregation upon the level of white enrollment. A third question that also may be relevant in this connection concerns the extent to which the possible existence of such resegregation constitutes a legitimate consideration in school desegregation cases. For example,fourteenth amendment requirements may render white flight a wholly irrelevant factor in some desegregation cases. This …
The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson
The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson
Michigan Law Review
This analysis of Marshall's constitutional jurisprudence avoids the pitfalls of previous theories. It does not see the Federalist political program as the source of Marshall's constitutional doctrines and thus does not need to explain how Marshall qualified his political principles or how he convinced non-Federalist judges to accept them. Instead, this essay argues that legal, not political, principles underlay Marshall's jurisprudence, but it attempts to understand those principles in a manner consistent with the unavoidable twentieth-century assumption that law is a body of flexible rules responsive to social reality rather than a series of immutable, unambiguous doctrines derived from a …
Hardin And Medvid: A Change In Indiana's Entrapment Law, Michael Hyatte
Hardin And Medvid: A Change In Indiana's Entrapment Law, Michael Hyatte
Indiana Law Journal
No abstract provided.
Irvin C. Rutter, Gordon A. Christenson
Irvin C. Rutter, Gordon A. Christenson
Faculty Articles and Other Publications
Tribute to legal scholar, Irvin Rutter.
Remarks On Probability In Law: Mostly, A Casenote And A Book Review, Robert Birmingham
Remarks On Probability In Law: Mostly, A Casenote And A Book Review, Robert Birmingham
Faculty Articles and Papers
No abstract provided.
Toward Freedom From Value, Richard Stith
Toward Freedom From Value, Richard Stith
Law Faculty Publications
No abstract provided.
Jurisprudence "Under-Mind": The Case Of The Atheistic Solipsist, Ira Robbins
Jurisprudence "Under-Mind": The Case Of The Atheistic Solipsist, Ira Robbins
Articles in Law Reviews & Other Academic Journals
Nearly thirty years have passed since the publication of Professor Lon L. Fuller's The Case of the Speluncean Explorers, in which a fictional court expounded upon the manifold ways in which certain harsh necessities, externally imposed upon common people, can test the rules of the criminal law. The instant case is not in- tended to parody the Speluncean Explorers, but rather to complement it with the inverse theme: the singular defendant is a psychologically extraordinary individual existing in a relatively mundane environment. The Atheistic Solipsist provides the opportunity for consideration of the ways internal forces of great intensity can shape …
Confessions Of Judgement In Illinois: The Need For Change Persists, Cindy F. Wile
Confessions Of Judgement In Illinois: The Need For Change Persists, Cindy F. Wile
Loyola University Chicago Law Journal
No abstract provided.
Televised Trials: Constitutional Constraints, Practical Implications, And State Experimentation, Shelly Byron Kulwin
Televised Trials: Constitutional Constraints, Practical Implications, And State Experimentation, Shelly Byron Kulwin
Loyola University Chicago Law Journal
No abstract provided.
Of Men And Laws: Murphy, Cornford, Arnold, Potter, Parkinson, Peter, Maccoby, And Gall, Melvin J. Sykes
Of Men And Laws: Murphy, Cornford, Arnold, Potter, Parkinson, Peter, Maccoby, And Gall, Melvin J. Sykes
Maryland Law Review
No abstract provided.
Book Review, Igor I. Kavass
Book Review, Igor I. Kavass
Vanderbilt Journal of Transnational Law
The limited use of American case law in the Commonwealth countries should not be surprising. With the exception of English cases, the decisions of other Commonwealth countries receive the same indifferent treatment in all Commonwealth jurisdictions; the English courts studiously ignore the decisions of other Commonwealth countries. For that matter, American courts do not consult the case law of English and other Commonwealth countries all too frequently. Espinoza v. Farah Manufacturing Co. is a recent example in point. In that case, the Supreme Court was asked to interpret the meaning of the terms "nationality" and "national origin" as used. in …
On Teaching Natural Law, David F. Forte
On Teaching Natural Law, David F. Forte
Law Faculty Articles and Essays
With the materials at hand which this appendix has listed, an instructor can better sort and choose from all categories, so as to concentrate more effectively, on those aspects of natural law legal theory and practice which he deems valuable for his students.
Assumption Of Risk In A Comparative Negligence System-- Doctrinal, Practical, And Policy Issues, Daniel O. Conkle
Assumption Of Risk In A Comparative Negligence System-- Doctrinal, Practical, And Policy Issues, Daniel O. Conkle
Articles by Maurer Faculty
The adoption of a new principle of law invariably impinges upon related legal concepts, raising issue that were not considered when the law was changed. The adoption of comparative negligence, a drastic departure from the long-held principle of contributory negligence, has forced courts to consider how the related concept of assumption of risk is affected by the change. Because there are different types of assumption of risk, and various doctrinal, practical, and policy issues, a proper determination of the role for assumption of risk in a comparative negligence system depends upon a thorough examination of many relevant considerations. Unfortunately, two …
The Jurisprudence Of Judge Hardy Cross Dillard, Charles E.M. Kolb
The Jurisprudence Of Judge Hardy Cross Dillard, Charles E.M. Kolb
Vanderbilt Journal of Transnational Law
The purpose of this article is to provide a critical assessment of Judge Dillard's performance during his tenure on the International Court of Justice. Much of this article will be "jurisprudential" in scope, endeavoring to examine developments in international legal theory and international organizations during the past two decades and to assess recent decisions written by the Court. The approach will in part be an institutional one, taking into consideration the ability of an individual member of the Court to shape decisional outcomes of an international body which must resolve contentious litigation and render advisory opinions within the structure of …
An Historical Perspective On The Attorney-Client Privilege, Geoffrey C. Hazard Jr.
An Historical Perspective On The Attorney-Client Privilege, Geoffrey C. Hazard Jr.
All Faculty Scholarship
No abstract provided.
The Theory Of Judicial Reasoning--Toward A Reconstruction, Peter W. Gross
The Theory Of Judicial Reasoning--Toward A Reconstruction, Peter W. Gross
Kentucky Law Journal
No abstract provided.
The Meek Shall Inherit A Global Bill Of Rights, Lung-Chu Chen
The Meek Shall Inherit A Global Bill Of Rights, Lung-Chu Chen
Other Publications
No abstract provided.
Truthfulness And Tragedy (Book Review), Thomas L. Shaffer
Truthfulness And Tragedy (Book Review), Thomas L. Shaffer
Journal Articles
This is the third book in which Professor Stanley Hauerwas has developed his "story" approach to Christian ethics. It is a collection of essays, almost all of which appeared in periodicals, written while he was developing his theory more systematically in Vision and Virtue (1974), and in Character and the Christian Life (1975). One of the chapters here, on suicide and euthanasia, was written with Dr. Richard Bondi; two others, on story theology and on Albert Speer's Inside the Third Reich, were written with Father David B. Burrell. The essays are arranged so that they explain and defend Hauerwas' thought …
Prior Consistent Statements, Arthur H. Travers Jr.
The Negotiated Guilty Plea: A Framework For Analysis, Richard Adelstein
The Negotiated Guilty Plea: A Framework For Analysis, Richard Adelstein
Richard Adelstein
An early exposition of the price exaction framework and the place of plea bargaining in it.