Law Commons^™

The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White

Michigan Law Review

As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the …

The Politics Of Postmodern Jurisprudence, Stephen M. Feldman

Michigan Law Review

What is the politics of postmodern jurisprudence? Forms of postmodern interpretivism, including philosophical hermeneutics and deconstruction, assert that we are always and already interpreting. This assertion has provoked numerous scholarly attacks, many of which invoke standard modernist hobgoblins such as textual indeterminacy, solipsism, ethical relativism, and nihilism. From the modernist standpoint, postmodern jurisprudence thus is either conservative or apolitical because it lacks the firm foundations necessary for knowledge and critique. In this article, I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism. My discussion focuses on …

Courting Disrespect, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Law's Meaning, Brian Slattery

Osgoode Hall Law Journal

It is often thought that the meaning of a legal provision must reside in the minds of its authors or its interpreters, or a combination of the two. Indeed, the point may seem so obvious that it scarcely needs any justification. Is there any sense, then, in the claim sometimes made by judges that a law has a meaning of its own, one that is distinct from the intentions of authors and interpreters alike? At first sight, the claim appears extravagant and self-serving. However, there is more to it than meets the eye. Drawing on an example from the world …

Legal Culture, Legal Strategy, And The Law In Lawyers' Heads, Lynn M. Lopucki

UF Law Faculty Publications

Legal activity invariably takes place within some structure, however lax. No matter how often the impossibility of such structure is announced by academics, murmurs of disbelief are heard in the trenches below. Legal formalism is the effort to make sense of the lawyer's perception of an intelligible order. This is why in the last two centuries formalism has been killed again and again, but has always refused to stay dead. Weinrib claims to find the structure that explains Formalism's refusal to stay dead in natural law. This Article argues for an entirely different explanation. Law exists in the minds of …

The Òpoweró Thing, Steven L. Winter

Law Faculty Research Publications

No abstract provided.

A New Class Of Lawyers: The Therapeutic As Rights Talk, Kenneth Anderson

Book Reviews

This 1996 essay reviews three books: Anthony T. Kronman, 'The Lost Lawyer: Failing Ideals of the Legal Profession' (Belknap 1993); Steven Brint, 'In an Age of Experts: The Changing Role of Professionals in Politics and Public Life' (Princeton 1994); and Christopher Lasch, 'The Revolt of the Elites and the Betrayal of Democracy' (WW Norton 1995). The review essay argues that lawyers in the United States should be seen as part of the professional New Class who use the law as a monopoly in the management by elites of the rest of society. The review examines the history of New Class …

Gossip And Metaphysics: The Personal Turn In Jurisprudential Writing, Michael Ansaldi

Michigan Law Review

A Review of Neil Duxbury, Patterns of American Jurisprudence and John Henry Schlegel American Legal Realism and Empirical Social Science

Words That Bind: Judicial Review And The Grounds Of Modern Constitutional Theory, John A. Drennan

Michigan Law Review

A Review of John Arthur, Words That Bind: Judicial Review and the Grounds of Modern Constitutional Theory

Searching For Positivism, Philip Soper

Michigan Law Review

A Review of W.J. Waluchow, Inclusive Legal Positivism

Progress And Constitutionalism, Robert F. Nagel

Michigan Law Review

A Review of Robin West, Progressive Constitutionalism: Reconstructing the Fourteenth Amendment

Post Constitutionalism, Lawrence Lessig

Michigan Law Review

A Review of Robert C. Post, Constitutional Domains: Democracy, Community, Management

A New Class Of Lawyers: The Therapeutic As Rights Talk, Kenneth Anderson

Kenneth Anderson

The Place Of Law In Collective Security, Martti Koskenniemi

Michigan Journal of International Law

In this article the author wants to examine the place of law in our thinking about and sometimes participation in decision-making regarding international security. After the end of the Cold War, and particularly since the United Nations' reaction to Iraq's occupation of Kuwait in 1990-91, an academic debate concerning the possibility of collective security has arisen anew. The intention is not to take a definite view in that controversy. Instead, the author shall suggest that this debate has been framed so as to obscure the role of normative considerations, including law, in the production or construction of collective security. A …

Proving Miracles And The First Amendment, Robert Birmingham

Faculty Articles and Papers

No abstract provided.

Lessons For The United States: A Greek Cypriot Model For Domestic Violence Law, Joan L. Neisser

Michigan Journal of Gender & Law

The purpose of this Article is twofold: to view the problem of domestic violence victims not wishing to testify against their abusers through the lenses of different feminist perspectives; and to use the Greek Cypriot experience as a model to test the value of these theories when developing legal policies addressing this issue.

Asimov Goes To Law School, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Chaotic Pseudotext, Paul F. Campos

Publications

No abstract provided.

Last Writes? Re-Assessing The Law Review In The Age Of Cyberspace, Bernard J. Hibbitts

Articles

This article - the original version of which was published on the author’s website in February 1996, possibly making it the first scholarly article posted online by a law professor before print publication - undertakes a comprehensive re-assessment of the law review from the perspective of the present age of cyberspace. In Part I, I investigate the conditions that initially joined to generate the form, showing how the law review emerged in the late nineteenth and early twentieth centuries as the product of the fortuitous interaction of academic circumstances and improvements in publishing technology. In Part II, I trace the …

This Could Be Your Culture--Junk Speech In A Time Of Decadence, Pierre Schlag

Publications

No abstract provided.

The Cosmological Question: A Response To Milner S. Ball's 'All The Company Of Heaven', Joseph Vining

Articles

We do not disagree, and I do not doubt, that legal processes are sources of injustice, violent oppression, crushing of the spirit, destruction of lives, actual death. I have only to look at The Trial1 again. Nor do we disagree that there are strings of words, statements, put out by officials, lawyers, and lawyer-academics, often called "rules," that cannot be taken into oneself and that by their very nature evoke manipulation in response, avoidance if they cannot be ignored. In their name violent imposition of pure will occurs all the time, and power is exercised by those who can secure …

A Text Is Just A Text, Paul F. Campos

Publications

No abstract provided.

Hiding The Ball, Pierre Schlag

Publications

No abstract provided.

The New Wittgensteinians And The End Of Jurisprudence, George A. Martinez

Faculty Journal Articles and Book Chapters

This article seeks to critically evaluate the new approach to jurisprudence and legal justification. In particular, one of the most significant contributions of the article is that it seeks to evaluate the new approach by, among other things, examining the history of the Wittgensteinian descriptive project in other areas of philosophy. The article focuses primarily on the work of Philip Bobbitt who has offered the leading example of this type of neo-Wittgensteinian approach. The arguments generated in the course of the article, however, may be applied against any neo-Wittgensteinian internalist approach to jurisprudence. Thus, the article seeks to provide a …

Caught Between Traditions: The Security Council In Philosophical Conundrum, David P. Fidler

Michigan Journal of International Law

In Part I of this article, I provide a discussion about the use of traditions of thought in international relations. Part II begins by briefly examining the fundamental purpose of the Security Council – the maintenance of international peace, and security. I then analyze the philosophical origins of the idea of maintaining international peace and security through an international organization to demonstrate how liberal thought on international relations came to incorporate this idea. In this analysis, I will demonstrate that liberal thought on the appropriateness of relying on international organizations to maintain peace and security is not unified and that …

The Antinomy Of Coherence And Determinacy, William A. Edmundson

Faculty Publications By Year

Coherence and determinacy are both apparent desiderata for bodies of law and legal systems. Unfortunately, in legal systems of any complexity, increasing the degree of one invariably brings about a lessening of the other. For theories of law - such as Ronald Dworkin's - that emphasize the importance of coherence in judicial reasoning, while requiring as a condition of legitimacy that legal rights pre-exist judicial decisions, this must be an unwelcome fact.

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …

Punitive Damages In Ancient Roman And Contemporary American Tort Law, Esther Julia Sonntag

LLM Theses and Essays

Both ancient Roman and contemporary American tort law recognize a type of damages that, instead of compensating the plaintiff for harm suffered, punishes the wrongdoer. In American law, courts can award two distinct amounts of money: compensatory damages for the plaintiff’s loss, and punitive damages as punishment and deterrence. Ancient Roman law had more extreme forms of remedies. In both legal systems there has been a trend to restrict punitive damages over time. The United States made efforts in the 1980s to place caps on punitive damages, which were referred to as “relics of the past,” and enhance requirements for …

Law's Normative Claims, Philip E. Soper

Book Chapters

People can look at non-conforming behaviour in two ways: either the person is acting immorally or the moral theory that condemns the behaviour is mistaken. To choose the former is to reflect a confidence in the existing moral theory, while choosing the latter is evidence that moral theory for that particular behaviour is wrong. This point says a lot about the link between the descriptive and evaluative enterprises of law. The development of basic moral principles, which draws from moral intuition, is a similar process when it comes to developing social practices, which in turn draw from human behaviour. Legal …

Domination In Wrongdoing, George P. Fletcher

Faculty Scholarship

Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs. Both crimes and torts claim victims, however, the victims' responses vary according to context. In criminal cases, the victim responds by hoping that the government will apprehend and successfully prosecute the offender. In tort disputes, the victim responds by demanding compensation.

It is unclear, however, what constitutes wrongdoing. Defining wrongdoing as the violation of rights is unhelpful, for that definition only raises other questions: Who has rights and what is their content? Therefore, to understand the nature of wrongdoing, we should seek a substantive theory …