Law Commons^™

Practical Polyphony: Theories Of The State And Feminist Jurisprudence, Carol Weisbrod

Faculty Articles and Papers

No abstract provided.

Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson

Scholarly Works

It is commonplace among scholars to link in thought the growth of Roman law and of English law. S.F.C. Milsom begins his distinguished Historical Foundations of the Common Law with the words: "It has happened twice only that the customs of European peoples were worked up into intellectual systems of law; and much of the world today is governed by laws derived from the one or the other." More strikingly, some scholars see an essential similarity in legal approaches in the two systems. Fritz Pringsheim entitled a well-known article The Inner Relationship Between English and Roman Law. W.W. Buckland and …

Democracy And Its Critics, Cary Coglianese

All Faculty Scholarship

No abstract provided.

Rawls On Political Community And Principles Of Justice, James W. Nickel

Articles

No abstract provided.

The Corporate Entity In An Era Of Multinational Corporations, Phillip Blumberg

Faculty Articles and Papers

No abstract provided.

The Corporate Personality In American Law: A Summary Review, Phillip Blumberg

Faculty Articles and Papers

No abstract provided.

The Epistemology Of Judging: Wittgenstein And Deliberative Practices, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.

Falling Off The Vine: Legal Fictions And The Doctrine Of Substituted Judgment, Louise Harmon

Scholarly Works

No abstract provided.

A Need For Clarity: Toward A New Standard For Preliminary Injunctions, Lea B. Vaughn

Articles

This Article examines the various standards for preliminary injunctions and demonstrates the ways in which the standards have become confused by irrelevant layers of meaning. Those layers of meaning are analyzed; nonfunctional accretions are discarded, and legitimate modem meanings are developed. The discussion is conducted against a background of assumptions about what makes a good standard, for example, accessibility and comprehensiveness. By modernizing the standard, the parties and the courts will frankly and openly discuss the underlying legal issues and values. This, in turn, should lead to more legitimate decisions.

Under a modernized standard, a court should redress immediate pretrial …

The First Amendment In An Age Of Paratroopers, David Skover, Ronald Collins

Faculty Articles

As the lead piece in a Colloquy entitled The First Amendment and the Paratroopers' Paradox, this article argues that today's free speech theory is largely grounded in 18th Century fears of government's tyrannical censorship. This theory is ill-equipped to deal with a distinct tyranny in 21st Century America, a tyranny playing upon the public's insatiable appetite for amusement. Those who venture to develop free speech principles to suit a new cultural environment are the First Amendment paratroopers of our time, the ones who realize that we cannot retain our old constitutional prerogatives in a transformed world. The Paratroopers' Paradox: To …

Natural Law As Practical Methodology: A Finnisian Analysis Of City Of Richmond V. Croson, David R. Barnhizer

Law Faculty Articles and Essays

The first part of this article examines some of the main features of Finnis's theory of natural law. It suggests that Finnis offers a "soft" theory of natural law anchored in a richer and more realistic conception of human nature than has generally characterized natural law theory. The article's second part briefly describes some methodological aspects of Finnis's theory. The third part seeks to apply Finnis's principles to Justice O'Connor's opinion in City of Richmond v. J. A. Croson Co., a decision that makes it extremely difficult for state and local governments to combat the subtle devises and consequences of …

The Rule Of Law And The Rule Of Laws, David F. Forte

Law Faculty Articles and Essays

The thesis of this article is that, for the Rule of Law to be maintained in a modern technological society, the legal system must affirmatively tolerate a range of justifiable non-compliance. I begin with a rather strong definition of the Rule of Law, one that encompasses not merely the procedural desiderata of Lon Fuller (which John Finnis accepts), but also the notion that the Rule of Law has a substantive content (the common good) and that it necessarily binds the rulers as well as the ruled. I posit as an opposite phenomenon to the Rule of Law, the rule of …

The Unimportance Of Precedence In The Law Of Federal Courts, Michael L. Wells

Scholarly Works

Part I of this Article asserts that the Supreme Court pays little attention to precedent in federal courts law. My examples in support of this claim are taken from important areas of federal courts doctrine, where two major upheavals have taken place in the past thirty years. First, the Warren Court rewrote the law to expand access to federal court. then under Chief Justice Burger, the Court undid many of the changes wrought by its predecessor. The discussion in Part I of prominent departures from precedent is not offered as decisive proof that stare decisis is less important in federal …

Whose Nature? Practical Reason And Patriarchy, Lynne Henderson

Scholarly Works

No abstract provided.

The (Unlikely) Death Of Property, James E. Krier

Articles

Is property dead? Thomas Grey has argued that it is.' If he is right, we have an answer to the principal question of this symposium panel, which asks whether regulation and property are allies or enemies. If Professor Grey is right, they are neitherbecause property no longer exists. If he is wrong (as I believe he partly is), then, I argue, regulation and property are allies and enemies alike, and will remain so.

Reasons, Authority, And The Meaning Of 'Obey': Further Thoughts On Raz And Obedience To Law, Donald H. Regan

Articles

I recently published a long article' discussing a variety of topics from Joseph Raz's The Morality of Freedom.2 The article was part of a symposium on Raz's work in the Southern California Law Review. Raz responded' to the articles in that symposium, including my own. From a perspective which surveys the whole range of views on political philosophy, Raz's view and mine look very similar. Even so, we find many things to disagree about, which neither of us would regard as merely matters of detail. For the most part, we at least share a common understanding of our disagreements. But …

The Natural Law Of Rhythm And Equality, John W. Ragsdale Jr

Faculty Works

The quest for natural law can easily seem futile to the secularist, and the legal terrain beyond human institutions has often been abandoned to the theologians and the supernaturalists. Most contemporary legal philosophers tend to focus on law as process, on legal positivism and legal realism, on the relativity of values or on the legal masking of class, race or gender interests. This piece will not do direct battle with these philosophies, all of which may have internal integrity and legitimacy within their chosen spheres. Instead, this piece will reexplore the possibility and propriety of linking the reality of law …

Psychodynamics And The Insanity Defense: Ordinary Common Sense And Heuristic Reasoning, Michael L. Perlin

Articles & Chapters

No abstract provided.

Scots Law In Post-Revolutionary And Nineteenth-Century America: The Neglected Jurisprudence, C. Paul Rogers Iii

Faculty Journal Articles and Book Chapters

No abstract provided.

Patenting The Human Genome, Rebecca S. Eisenberg

Articles

The increasing promise of federal funding for mapping and sequencing the human genome has brought with it renewed attention in the research science community to issues of intellectual property protection for products of biotechnology research. Echoing concerns raised a decade ago in the debate over commercialization of academic biomedical research, scientists have called for the free availability of all information generated through the Human Genome Project and have argued against allowing private intellectual property rights in such knowledge. Meanwhile, private parties have quietly been obtaining patents on bits and pieces of the human genome from the Patent and Trademark Office …

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …

Judging The Judges: Three Opinions, James Boyd White

Articles

For some time I have been working on the problem of judicial criticism, focusing especially on the question: What is it in the work of a judge that leads us to admire a judicial opinion with the result of which we disagree, or to condemn an opinion that "comes out" the way we would do if we were charged with the responsibility of decision? The response I have been making is that this kind of judicial excellence (and its opposite too) lies in the sort of social and intellectual action in which the opinion engages: in the character the court …

Retaining The Rule Of Law In A Chevron World, Michael A. Fitts

All Faculty Scholarship

No abstract provided.

Alive And Well: Religious Freedom In The Welfare State, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Allocating Risks And Suffering: Some Hidden Traps, John M. Finnis

Journal Articles

The economic analysis of which Adam Smith is a principal founder is helpful in practical reasoning about problems of justice precisely insofar as it systematically calls attention to the side-effects of individual choices and actions and behavior. Still, it would be a mistake to conclude that we need only a more adequate account of the benefits and burdens up for distribution or allocation by those responsible for the common good or general fate. We need also to bear in mind what Smith did not forget and what economics does not comprehend, the requirements of commutative justice. To see this, we …

Surrogacy, Slavery, And The Ownership Of Life, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Justice Scalia And The Elusive Idea Of Discrimination Against Interstate Commerce, Richard B. Collins

Publications

No abstract provided.

Normative And Nowhere To Go, Pierre Schlag

Publications

No abstract provided.

"Le Hors De Texte, C'Est Moi": The Politics Of Form And The Domestication Of Deconstruction, Pierre Schlag

Publications

No abstract provided.

Preface, Charles F. Wilkinson

Publications

No abstract provided.