Law Commons^™

Creating A Just System Of Civil Recourse – Articulating The Controlled Instrumentalist Approach For Marginalized People, Rukmini Banerjee

CMC Senior Theses

A system of civil recourse is a precondition for a just society. In this paper, I outline the ideal version of a system of civil recourse and analyze the accounts of various liberal philosophers to explain how a non-instrumental and mutual accountability theory of civil recourse best encapsulates its stated purpose. I analyze the American system of civil recourse, specifically tort law, and argue that it bypasses the threshold of tolerable injustice for marginalized people in the United States. Using Tommie Shelby’s framework in Dark Ghettos: Injustice, Dissent, and Reform, I argue that marginalized people are not obligated by …

Is There Really Anything Wrong With That? An Aristotelian Analysis Of Duty, Luke J. Mcgrath

Honors College Theses

In the iconic Seinfeld series finale, Jerry, George, Elaine, and Kramer find themselves in a peculiar legal predicament when they mock a crime rather than intervene to help the victim. The show’s commitment to portraying reality, even in its finale, vividly demonstrates the potential consequences of a society lacking the legal obligation to aid others. This comical incident raises a thought-provoking question about the legitimacy of duty-to-act laws in the United States. This thesis examines the application of Aristotle’s Nicomachean Ethics to the concept of duty-to-act laws and argues for the necessity and benefits of such laws in promoting a …

The Consequence Of Final Causality: Competing Views Of Legal Teleology, Jonathan M. Dumdei

Liberty University Journal of Statesmanship & Public Policy

Philosophy of law and legal jurisprudence have received recent attention in the United States due to the significant change in the makeup of the Supreme Court. Historical understanding of the legal philosophies that have influenced the U.S. and the ancient principles upon which they are built must of necessity be properly assessed. This thesis proposes that Aquinas’s conception of Natural Law as the basis for legal teleology provides a superior grounding for American jurisprudence than the theories of legal positivism and critical legal theory due to the superiority of Natural Law’s integration of ultimate final causes. Through a survey of …

Zero Textbook Cost Syllabus For Com 3045 (Communication, Law, And Free Speech), Donovan Bisbee

Open Educational Resources

From pornography to political speech, from the lewd to the libelous, and everywhere in between, the law is forever drawing lines that divide protected speech (what you can say in America) from unprotected speech (what you cannot say in America). This is an interdisciplinary course that draws on philosophical, legal, and rhetorical theories of communication to help explain how those lines are drawn. Readings include famous court cases involving freedom of speech, as well as political and philosophical writings on all sides of the free speech debate. This course is part of the required core for the Communication Studies Major, …

The Role Of Recognition In Kelsen's Account Of Legal Obligation And Political Duty, David Ingram

Philosophy: Faculty Publications and Other Works

Kelsen’s critique of absolute sovereignty famously appeals to a basic norm of international recognition. However, in his discussion of legal obligation, generally speaking, he notoriously rejects mutual recognition as having any normative consequence. I argue that this apparent contradiction in Kelsen's estimate regarding the normative force of recognition is resolved in his dynamic account of the democratic generation of law. Democracy is embedded within a modern political ethos that obligates legal subjects to recognize each other along four dimensions: as contractors whose mutually beneficial cooperation measures esteem by fair standards of contribution; as autonomous agents endowed with equal rights; as …

Against The Death Penalty, Charles Jessup

Student Research Submissions

My thesis is an argument against the death penalty. Given that public support for the death penalty in America is at a half-century low (according to the Pew Research Center), the timing could not be more appropriate to examine the death penalty. This research project had a two-step approach: first, ethical theory-based arguments for and against the death penalty were examined. Following that ethical theory-based examination, real-world statistics were applied to these theories to test where they stand in modern society. The findings contained in this research project point to a clear reality that the death penalty in America is …

When Half The Neighborhood Is Missing: How To Overcome Systemic Poverty And Gentrification Following The Models Of Dudley Street And Mission Waco, Kevin A. Brown, Kevin A. Brown, Kevin A. Brown

Doctor of Ministry Projects and Theses

Abstract

By following the examples of Mission Waco and The Dudley Street Initiative, it is possible to renew a sense of beloved community by changing the narrative of poverty and gentrification by rebuilding the village through empowering the poor and marginalized.

Mission Waco and The Dudley Street Initiative are comprehensive sustainable communities because they combine numerous social and economic interventions under developed strategic plans. The principal question that this dissertation seeks to answer is whether these models can be implemented in local communities to help overcome gentrification and poverty. Implementation can be successful if we can identify the problem, rethink …

Legal Purgatory: Why Some Animals Are Neither Persons Nor Property, Sharisse Kanet

Dissertations, Theses, and Capstone Projects

All animals with non-borderline sentience are deserving of certain legal considerations independent of their use and relationship to human beings. That is, all sentient beings should have some rights. Given the current organization of the U.S. legal system, which divides all entities into property or persons, it is not surprising that animals are relegated to property status. I put forth a proposal to fix this whose central suggestion is that we create a third legal designation, legal patient, into which all non-person sentient animals (those which do not properly belong on either current category) would fit. These animals would receive …

2011 Inamori Ethics Prize Speech: Democracy And Freedom Under Law: The Obligations Of Lawyers, Beatrice Mtetwa

The International Journal of Ethical Leadership

transcript

The Real Legal Realism, Michael S. Green

Michael S. Green

No abstract provided.

A Rhetorical Analysis Of Opening Statements In Trial: Reconsidering The Classical Canon Of Invention, Andrew Chandler

Undergraduate Theses

This analysis of 21 opening statements probes at current persuasive practices employed by trial attorneys through the lens of mainstream legal advice and an expanded definition of rhetorical invention – one which includes both discovery and creation. An evaluation of such practice reveals the utility, and furthermore the duty of the advocate, to draw upon an expanded realm of available arguments.

Guantánamo Bodies: Law, Media, And Biopower, Cary Federman, Dave Holmes

Cary Federman

The idea of the Guantánamo detainee as a Muselmann, the lowest order of concentration camp inmates, contains within it important implications for the new understanding of sovereignty in the era of Guantánamo, in an age of exception. The purpose of this article is to explain the status of those who are detained at Guantánamo Bay. Stated broadly, in assessing that status, we will emphasize the connection between the altered meaning of sovereignty that has accompanied the placing of prisoners in an American penal colony in Cuba and the biopolitical status of the prisoners who reside there. More particularly, we …

The 200,000 Cards Of Dimitri Yurasov: Further Reflections On Scholarship And Truth, Daniel A. Farber, Suzanna Sherry

Suzanna Sherry

No abstract provided.

Female Autonomy: An Analysis Of Privacy And Equality Doctrine For Reproductive Rights, Elizabeth Levi

Political Science Honors Projects

What is the constitutional basis for women’s equality? Recently, scholars have suggested that as the right to privacy has floundered against the political undoing of women's access to abortion, equal protection arguments have grown stronger. This thesis investigates the feminist utility and limits of the equality and privacy arguments. Taking liberal feminism and feminist legal theory as analytical lenses, I offer interpretations of gender discrimination, reproductive rights, and marriage equality case law. By this framework, I argue that while an equality argument is less inherently oppressive towards women than the privacy doctrine, equality doctrine has been constructed thus far to …

Problems With Using Statistics To Justify Institutional Policies, Justin Shin

Senior Projects Spring 2017

It is becoming increasingly common for institutions to use statistics to inform policy decisions. We should be prepared to ask ourselves what regulatory principles should be imposed on institutions that seek to justify certain policies through deference to a statistical analysis. This paper will examine the difficulties that come with using statistics to justify actions, and argue that certain standards of transparency and verifiability should be expected from any institution that seeks to involve a statistical analysis in the formation of policies. I will first use Market Share Liability, an established use of statistics, to draw out what responsibilities an …

The Edict Of King Gälawdéwos Against The Illegal Slave Trade In Christians: Ethiopia, 1548 -- Featured Source, Habtamu M. Tegegne

The Medieval Globe

This study explores the relationship between documentary-legal prescriptions of slavery and actual practice in late medieval Ethiopia. It does so in light of a newly discovered edict against the enslavement of freeborn Christians and the commercial sale of Christians to non-Christian owners, issued in 1548 by King Gälawdéwos. It demonstrates that this edict emerged from a dramatic and violent encounter between the neighboring Sultanate of Adal, which was supported by Muslim powers, and the Christian kingdom of Ethiopia, which had the support of expanding European powers in the region. The edict was therefore issued to reaffirm and clarify the principles …

Land And Tenure In Early Colonial Peru: Individualizing The Sapci, "That Which Is Common To All", Susan E. Ramirez

The Medieval Globe

This article compares and contrasts pre-Columbian indigenous customary law regarding land possession and use with the legal norms and concepts gradually imposed and implemented by the Spanish colonial state in the Viceroyalty of Peru in the sixteenth and early seventeenth centuries. Natives accepted oral histories of possession going back as many as ten generations as proof of a claim to land. Indigenous custom also provided that a family could claim as much land as it could use for as long as it could use it: labor established rights of possession and use. The Spanish introduced the concept of private property …

The Future Of Aztec Law, Jerome A. Offner

The Medieval Globe

This article models a methodology for recovering the substance and nature of the Aztec legal tradition by interrogating reports of precontact indigenous behavior in the works of early colonial ethnographers, as well as in pictorial manuscripts and their accompanying oral performances. It calls for a new, richly recontextualized approach to the study of a medieval civilization whose sophisticated legal and jurisprudential practices have been fundamentally obscured by a long process of decontextualization and the anachronistic applications of modern Western paradigms.

Editor's Introduction To "Legal Worlds And Legal Encounters" -- Open Access, Elizabeth Lambourn

The Medieval Globe

This introduction presents and draws together the articles and themes featured in this special issue of The Medieval Globe, “Legal Worlds and Legal Encounters.”

The Prospects For Change: The Question Of Justice In A Law & Society Framework, Michael W. Raphael

Graduate Student Publications and Research

What is the law and society framework and where has it gotten us? A student in a classroom might raise their hand and offer "understanding legal pluralism" as a possible answer. However, the conceptual problem with legal pluralism is the coexistence of potentially conflicting bases of justification. Given this, desiring to understand how the law shapes the structural underpinnings of whichever "legal" phenomena and its "ongoing transformation", is nevertheless an immense achievement that stops short of its underlying goal – the achievement of human dignity through human rights. For example, to talk about 'multi-stakeholder consultations' and other pithy phrases that …

Freedom, Benefit And Understanding: Reflections On Laurence Claus’S Critique Of Authority, John Finnis

San Diego Law Review

With wide-ranging and illuminating determination, Law’s Evolution and Human Understanding offers a refutation of the illusion of authority. No one, it rightly contends, has the right to be obeyed. Still less, as it correctly says, do any persons have the right that their say so be obeyed because they said so. Given the book’s stipulative definition of “authority,” these truths entail that authority is an illusion, and provide some important premises for a plausible further conclusion or pair of conclusions: it is harmful, both in practice and in theory, to say that some person or body has authority (“the rule …

Faut-Il Obéir À La Loi ? – Les Pensées Politiques Des Femmes Dans La Littérature Épistolaire Et Les Mémoires Choisis À L’Époque De La Révolution Française, Justyna Czader

Open Access Theses

L'écriture est un témoin qui est difficilement corrompu-Montesquieu, L'esprit des lois. Mémoires and lettres de prisons take us to places we haven't been: prisons in bloody revolutionary Paris and the deadly Place de la Concorde. Women with different social backgrounds fought for their rights denied officially by the revolutionary authorities. They fought back was through plays, mémoires or letters. According to Philippe Lejeune, since the 18th century autobiography has become a phenomenon of civilization. I argue that the lettres de prison present not only a form of epistolary communication, but also as many personal testimonies, recollections of events and emotions …

Interpreting, Stephanie Jo Kent

Doctoral Dissertations

What do community interpreting for the Deaf in western societies, conference interpreting for the European Parliament, and language brokering in international management have in common? Academic research and professional training have historically emphasized the linguistic and cognitive challenges of interpreting, neglecting or ignoring the social aspects that structure communication. All forms of interpreting are inherently social; they involve relationships among at least three people and two languages. The contexts explored here, American Sign Language/English interpreting and spoken language interpreting within the European Parliament, show that simultaneous interpreting involves attitudes, norms and values about intercultural communication that overemphasize information and discount …

'Gardens Of Justice': Australian Feminist Law Journal, 2013, Volume 39, Matilda Arvidsson, Leila Brännström, Merima Bruncevic, Leif Dahlberg

Matilda Arvidsson

FOREWARD: GARDENS OF JUSTICE

Matilda Arvidsson, Merima Bruncevic, Leila Brannstrom, Leif Dahlberg

Our Gardens of Justice special themed issue of the Australian Feminist Law Journal grew out of the 2012 Critical Legal Conference in Stockholm and its theme of Gardens of Justice, a conference organised by Matilda Arvidsson, Merima Bruncevic, Leila Brannstrom and Leif Dahlberg. We issued a Call for Papers early in 2013 in which several conference theme questions were repeated. We called for papers devoted to thinking about law and justice as a physical as well as a social environment. The theme suggested a plurality of justice gardens …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

The 200,000 Cards Of Dimitri Yurasov: Further Reflections On Scholarship And Truth, Daniel A. Farber, Suzanna Sherry

Daniel A Farber

No abstract provided.

The Real Legal Realism, Michael S. Green

Popular Media

No abstract provided.

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Roundtable Discussion Transcript: The Legal And Ethical Limits Of Technological Warfare Symposium, February 1, 2013, University Of Utah, S.J. Quinney College Of Law, Amos N. Guiora, Harry Soyster, David R. Irvine, Geoffrey S. Corn, James Jay Carafano, Claire O. Finkelstein, Laurie R. Blank, Monica Hakimi, George R. Lucas, Trevor W. Morrison, Frederic Megret

All Faculty Scholarship

The Utah Law Review brought in a panel of experts for a symposium on the legal and ethical limits of technological warfare. This roundtable discussion crystalized the issues discussed throughout the symposium. The collective experience and diversity of viewpoints of the panelists produced an unparalleled discussion of the complex and poignant issues involved in drone warfare. The open dialogue in the roundtable discussion created moments of tension where the panelists openly challenged each other’s viewpoints on the ethics and legality of drone warfare. The discussion captured in this transcript uniquely conveys the diversity of perspectives and inherently challenging legal and …

Spirit Injury And Feminism: Expanding The Discussion, Nick J. Sciullo

Nick J. Sciullo

To discuss spirit injury, it is at first necessary to articulate a space in the theoretical diaspora to conceptualize spirit injury as a concept deeply tied to the historical tradition of several theoretical frameworks. “Spirit injury” is a phrase popularized by critical race feminist Adrien Katherine Wing. It is a term utilized in critical race feminism (CRF) that brings together insights from critical legal studies (CLS) and critical race theory (CRT). Wing’s training is as a lawyer and legal scholar, not as a communication scholar, yet her work may help communication scholars more keenly theorize harm and violence. Her scholarship …