Law Commons^™

Public Interest Organizations, J. Hardesty

California Regulatory Law Reporter

No abstract provided.

Public Law—Modification Of Consent Decrees—More Flexible Standard For Modifications In Institutional Reform Litigation. Rufo V. Inmates Of The Suffolk County Jail., Donna Wolfe

University of Arkansas at Little Rock Law Review

No abstract provided.

State-Interest Analysis And The Channelling Function In Family Law, Carl E. Schneider

Articles

I want to develop some themes I advanced in my article entitled State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social issues. In that article I noted that while courts and commentators have lavished effort on the fundamental-rights side of privacy law, they have scanted the state-interest side, thereby producing crucial weaknesses in that law. I felt that state~interest discussions in privacy cases often seemed to me unsatisfying. This is an attempt to see why. A major difficulty is that states tend to advance and courts tend to accept quite narrow specifications of a statute's …

Moral Reality Revisited, Michael S. Moore

Michigan Law Review

Both the moral realist and the relational theses need clarification and motivation as much as they need defense. Because I have recently focused on the relational thesis, in this article I shall focus on the moral realist thesis. I shall ask three questions about the thesis. First, what does the thesis assert? This is a matter of clarifying what one means when one either asserts or denies that moral values are objective. Second, why should we care whether the moral realist thesis is true or false? I shall examine this question both in terms of the impact the truth or …

Justifiably Punishing The Justified, Heidi M. Hurd

Michigan Law Review

Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex …

The Left Critique Of Normativity: A Comment, Mark V. Tushnet

Michigan Law Review

"In today's legal academy, the critique of normativity is associated with the left." The preceding sentence, which I have constructed to summarize the starting point of this essay, is both largely true and arguably incoherent. The incoherence occurs because describing a position as "the left" connotes values like egalitarianism, which are obviously normative. This essay examines the ways in which some writers associated with the left in the legal academy have tried to resolve the incoherence. The first Part shows that these writers can be identified with the left even in their critiques of normativity and also shows that they …

Handgun Article, Lewis F. Powell Jr.

Powell Writings

No abstract provided.

Public Interest Organizations

California Regulatory Law Reporter

No abstract provided.

Takings And The Post-Modern Dialectic Of Property, Gregory S. Alexander

Cornell Law Faculty Publications

Emblems Of Federalism, Carol Weisbrod

University of Michigan Journal of Law Reform

This Article reviews non-state federalism-more accurately "not only state federalism"- sometimes called pluralism or essential federalism, and contrasts it with conventional political federalism referred to here as "monumental federalism" and presented through a description of a painting by Erastus Field.

What Is A Postmodern Constitutionalism?, J. M. Balkin

Michigan Law Review

I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution - the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would …

Dworkin And The Doctrine Of Judicial Discretion, David Jennex

Dalhousie Law Journal

In a series of books and articles published over the last thirty years, Ronald Dworkin has relentlessly attacked the positivist view according to which law is a species of empirically verifiable fact. A position closely associated with this view, and with which Dworkin also takes issue, is the doctrine of judicial discretion. This doctrine asserts that in hard cases - cases in which it is unclear what the law requires - there is no legally required dispensation, so that judges are entitled to use discretion in making their decision. Dworkin disagrees, maintaining that in many such cases a thorough investigation …

Some Lesson About The Law From Self-Referential Problems In Mathematics, John M. Rogers, Robert E. Molzon

Michigan Law Review

We first describe briefly mathematician Kurt Gödel's brilliant Incompleteness Theorem of 1931, and explore some of its general implications. We then attempt to draw a parallel between axiomatic systems of number theory (or of logic in general) and systems of law, and defend the analogy against anticipated objections. Finally, we reach two types of conclusions. First, failure to distinguish between language and metalanguage in mathematical self-referential problems leads to fallacies that are highly analogous to certain legal fallacies. Second, and perhaps more significantly, Gödel's theorem strongly suggests that it is impossible to create a legal system that is "complete" in …

Law, Politics, And The Claims Of Community, Stephen A. Gardbaum

Michigan Law Review

This article aims to provide this needed analysis and then to show how it illuminates many of the exchanges taking place within the legal academy. It argues that the first step toward understanding "the claims of community" - whether in law or moral and political theory - is to recognize that, as the phrase itself suggests, more than one claim is involved. Merely to observe that the various proponents of community have as yet failed to establish a common and coherent communitarian position, though certainly true, is to miss the more critical insight: they are not engaged in such an …

The Question That Killed Critical Legal Studies, Michael Fischl

Faculty Articles and Papers

No abstract provided.

From Libertarianism To Egalitarianism, Justin Schwartz

Justin Schwartz

A standard natural rights argument for libertarianism is based on the labor theory of property: the idea that I own my self and my labor, and so if I "mix" my own labor with something previously unowned or to which I have a have a right, I come to own the thing with which I have mixed by labor. This initially intuitively attractive idea is at the basis of the theories of property and the role of government of John Locke and Robert Nozick. Locke saw and Nozick agreed that fairness to others requires a proviso: that I leave "enough …

Public Interest Organizations, J. Jacobson, J. Hardesty

California Regulatory Law Reporter

No abstract provided.

The Kantian Theory Of International Law, Fernando R. Tesón

Scholarly Publications

This Article defends the view, first developed by Immanuel Kant, that international law and domestic justice are fundamentally connected.'

The Legal Basis Of Aboriginal Title, Brian Slattery

Articles & Book Chapters

This paper considers a range of differing approaches to the question of Aboriginal land rights in the light of the judgment of the B.C. Supreme Court in the Delgamuukw case.

Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman

Articles

In this Article, I offer a fundamentally different and nondoctrinaire way of approaching hearsay questions. In brief, I take the view that the resolution of a hearsay dispute, when the declarant is not on the stand, is essentially a matter of deciding who should bear the burden of producing the declarant, or more precisely, how courts should allocate that burden. Adopting a simple procedural improvement, concerning the examination of the declarant if she is produced as a witness, allows the court to allocate the burden optimally. If live testimony by the declarant would be more probative than prejudicial, then most …

Constitutional Scepticism, Robin West

Georgetown Law Faculty Publications and Other Works

Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The "constitutional faithful" argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of …

The Law Of Choice And Choice Of Law: Abortion, The Right To Travel, And Extraterritorial Regulation In American Federalism, Seth F. Kreimer

All Faculty Scholarship

No abstract provided.

Autonomy's Magic Wand: Abortion And Constitutional Interpretation, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Law As Discourse, George P. Fletcher

Faculty Scholarship

Legal theory has traditionally taken the use of sanctions to be a characteristic feature of any legal order. Positivists like John Austin take the notion of commands backed by threats to be the essence of law. Yet even those who scorn positivism, like Immanuel Kant, are equally committed to the view that the sovereign must enforce positive legal rules by punishing those who violate them.

This emphasis on sanctions has always struck me as a bit curious. It is not irrelevant to the understanding of legal phenomena, but it does seem to have been exaggerated in philosophical efforts to understand …

The Rulemaking Continuum, Peter L. Strauss

Faculty Scholarship

The two papers we have before us tell both descriptive and normative stories about current issues of rulemaking. Each suggests, in its field of attention, pressures that operate to increase proceduralization and agency responses to those pressures, as well as an attitude toward these developments. In rulemaking, as in other activities, discretion and order are in constant tension; one might find in that tension the very engine that makes the processes of public law go. Like the studies that assisted the move away from formal rulemaking, and the perceptions underlying the Supreme Court's Vermont Yankee decision, which quieted the judicial …

Infinite Strands, Infinitesimally Thin: Storytelling, Bayesianism, Hearsay And Other Evidence, Richard D. Friedman

Articles

David Schum has long been one of our keenest commentators on questions of inference and proof. He has been particularly interested in, and illuminating on, the subject of "cascaded," or multi-step, inference.' This is a subject of importance to lawyers, because most evidence at trial can be analyzed in terms of cascaded inference. Usually, the proposition that the fact finder2 might immediately infer from the evidence is not itself an element of a crime, claim, or defense. Most often, an extra inference would be required to jump from that proposition to a proposition that the law deems material. Thus, inference …

Charles E. Lindblom, Richard Adelstein

Richard Adelstein

An intellectual biography and review of the work of Charles E. Lindblom.

Federal Common Law And The Role Of The Federal Courts In Private Law Adjudication - A (New) Erie Problem?, George D. Brown

George D. Brown

No abstract provided.

Continuity And Change Redux: Market And State In American History, Richard Adelstein

Richard Adelstein

A review of Jonathan Hughes, The Government Habit Redux (1991).