Law Commons^™

The Paths Of Christian Legal Scholarship, David A. Skeel Jr.

All Faculty Scholarship

The history of twentieth century Christian legal scholarship– really, the absence of Christian legal scholarship in America’s elite law schools– can be told as a tale of two emblematic clashes: the first an intriguing historical footnote, the second a brief, explosive war of words. In the first, a tort action in Nebraska circa 1890,William Jennings Bryan and Roscoe Pound served as opposing counsel; the second was a war of words in the 1940s between a group of neo-Thomist scholars and defenders of Oliver Wendell Holmes. Using these two incidents to frame as a starting point, this essay briefly chronicles the …

Health Law’S Coherence Anxiety, Theodore Ruger

All Faculty Scholarship

Academic health law is often said to suffer from a "law of the horse" problem, or, more particularly, to lack various dimensions of theoretical coherence. In conventional legal academic discourse, the "coherence" ideal prioritizes a cluster of attributes, all of which health law lacks: sparse conceptual singularity, a reductionist focus on particular legal forms, institutional centralization, and historical determinism and orderly development of a legal field. Health law is a singularly poor fit with this traditional model of field coherence. It is a mishmash of various legal forms, applied by divergent and often colliding institutions, and has developed much more …

Undressing Difference: The Hijab In The West, Anita L. Allen

All Faculty Scholarship

On March 15, 2006, French President Jacques Chirac signed into law an amendment to his country’s education statute, banning the wearing of "conspicuous" signs of religious affiliation in public schools. Prohibited items included "a large cross, a veil, or skullcap." The ban was expressly introduced by lawmakers as an application of the principle of government neutrality, "du principe de laïcité." Opponents of the law viewed it primarily as an intolerant assault against the hijab, a head and neck wrap worn by many Muslim women around the world. In Politics of the Veil, Professor Joan Wallach Scott …

Judicial Policy - Making And The Peculiar Function Of Law, Richard Kay

Faculty Articles and Papers

While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors - social values, legal rules and judging - comprise …

The “Institutional Turn” In Jurisprudence: Critique And Reconstruction., Andres Palacios Lleras

Andrés Palacios Lleras

This paper engages in a inquiry into the roles that courts play within the legal system, given that judges are interdependent interpreters of legal rules that are boundedly rational and, arguably, politically biased. Contemporary authors claim that, although these two conditions play an important role in interpretation, contemporary theories in jurisprudence have not addressed them properly. Their assessments raise legal issues that are very significant; given the fact that judges are boundedly rational and tend to display political biases, how should they interpret legal rules? Is it best for them to interpret these rules in a formalist fashion, without resorting …

The Indeterminate Side Of Constitutions As Precommitment Strategies, Andres Palacios Lleras

Andrés Palacios Lleras

This paper engages in a time-honored inquiry in American jurisprudence, an inquiry which continues to be invigorated by contemporary studies in Constitutional Law. It is an inquiry into the determinacy of the American Constitution as a legal text, taking into account that it was drafted and approved more than two hundred years ago with the purpose, arguably, to organize present and future political decision-making. Some contemporary authors claim that the discussion about the role of the Constitution is muddled, and that to acknowledge its authority does not necessarily entail a theory of constitutional interpretation. Furthermore, other authors have claimed that …

Droits De L'Homme, Droits Du Citoyen: Les Présupposés De La Jurisprudence Américaine Et Européenne, Gregory Lewkowicz

Gregory Lewkowicz

This paper proposes a comparative analysis of some rulings of the US Supreme Court and of the European Court of Human Rights. Reviewing cases related to international legal problems or using comparative legal reasoning, the paper suggests that the difference of attitudes between the two courts in human rights cases is embedded in the classical opposition between men and citizen.

On Conceptual Dichotomies And Social Oppression, Gila Stopler, Dana Freibach Heifetz

Gila Stopler

This article aims to expose the philosophical and cultural mechanisms, which allow some forms of western religion (in this case mainstream Christianity) to join hands with western capitalism in the oppression of women and of the needy. Focusing on the example of the US, this article claims that both mainstream Christian religion and capitalism perpetuate and entrench discrimination against women and the oppression of the needy through the use of the cultural/philosophical dichotomy between love and justice and its corollary dichotomy between private and public. Against this background, the second part of the article examines several notions of love and …

Why John Mccain Was A Citizen At Birth, Stephen E. Sachs

Stephen E. Sachs

Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a "natural born Citizen" eligible to be president.

Same-Sex Marriage And Federalism, Nancy J. Knauer

Nancy J. Knauer

The increasing willingness of states to recognize same-sex relationships illustrates the central theme of this Symposium: federalism provides states the freedom to experiment with novel solutions to pressing social issues. The development of progressive policies seems to bear out Justice Brandeis' optimistic vision of federalism where "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." With respect to same-sex relationships, however, state level reform efforts have not been uniformly progressive. To the contrary, the vast majority of these efforts prohibit the …

Happy Law Students, Happy Lawyers, Nancy Levit, Douglas Linder

Nancy Levit

This article draws on research into the science of happiness and asks a series of interrelated questions: Whether law schools can make law students happier? Whether making happier law students will translate into making them happier lawyers, and the accompanying question of whether making law students happier would create better lawyers? After covering the limitations of genetic determinants of happiness and happiness set-points, the article addresses those qualities that happiness research indicates are paramount in creating satisfaction: control, connections, creative challenge (or flow), and comparisons (preferably downward). Those qualities are then applied to legal education, while addressing the larger philosophical …

What Is 'Private' Data?, Karen Mccullagh

Karen McCullagh

The development of a frontier-free Internal Market and of the so-called 'information society' have resulted in an increase in the flow of personal data between EU Member States. To remove potential obstacles to such transfers data protection legislation was introduced. One of the underpinning principles of Directive 95/46/EC is the protection of privacy. Yet, the legislation does not provide a conclusive understanding of the terms ‘privacy’ or ‘private’ data. Rather, privacy protection is to be achieved through the regulation of the conditions under which personal data may be processed. An assessment of whether, 10 years after the enactment of the …

The Miracle Of Generative Violence? René Girard And The Use Of Force In International Law, Gregor Noll

Gregor Noll

In this article, I apply Rene´ Girard’s theory of generative violence to the international law relating to the use of force. I argue that texts of international law make gestures of referral towards an immanent normativity on the fettering of divine violence. The means to this end is a form of sacrificial violence that seeks to promote the preservation and cohesion of the ‘international community’. The structuring of this violence through international law and its repeated staging reproduces the relationship of prophecy to miracle. Empirically, I draw mainly on excerpts from the 2006 US National Security Strategy.

Sacrificial Violence And Targeting In International Humanitarian Law, Gregor Noll

Gregor Noll

Drawing on the work of René Girard, his text inquires into incidental and lawful losses of civilians in the regulation of international humanitarian law as part of a symbolic order restraining violent conflict within communities. First, I inquire into central norms on targeting in IHL, explaining their internal inconsistencies. Second, I try to show that these inconsistencies can be explaining by applying Girard's theory on sacrificial violence.

The Asylum System, Migrant Networks And The Informal Labour Market, Gregor Noll

Gregor Noll

Governments attempting to regulate labour markets and control immigration are confronted with difficult questions. In the past, there was general agreement that the asylum system should not be exploited as a side entrance to the labour market. The two systems—asylum and labour market—were to be planned and maintained separately. But if migration is a prerequisite for asylum, does not increasingly stiffer migration control block escape for those under persecution? Prices for smuggling go up, and smugglers seek new routes, yet irregular migration continues, and the informal labour market flourishes. Here we must ask an irreverent question: is there any point …

Situating Emotion: A Critical Realist View Of Emotion And Nonconscious Cognitive Processes For Law And Legal Theory, David J. Arkush

David J. Arkush

This Article attempts to clarify legal thinking about emotion in decision making. It surveys evidence from psychology and neuroscience on the extensive role that emotion and related nonconscious cognitive processes play in human behavior, then evaluates the treatment of emotion in three legal views of decision making: rational choice theory, behavioral economics, and cultural cognition theory. The Article concludes that each theory is mistaken to treat emotion mostly as a decision objective rather than a part of the decision-making process and, indeed, to treat it as a force that mostly compromises that process. The Article introduces the view that emotion …

A Whale Of A Tale: Post-Colonialism, Critical Theory, And Deconstruction: Revisiting The International Convention For The Regulation Of Whaling Through A Socio-Legal Persepctive, Nick J. Sciullo

Nick J. Sciullo

This article is a critical interpretation of the indigenous whaling debate, which, although often discussed in legal academia, has received only passing critical attention. As a scholar in the critical theory/critical legal studies model, I am primarily concerned with the impact that law and debates about law have on divergent groups (racial, ethnic, gender, etc.). This article develops a criticism of the United States's postcolonial opposition to whaling, arguing, instead, for cultural relativism. The article indicts U.S. imperialism, and treatment of indigenous peoples, arguing for interdisciplinary analysis and a more keen appreciation for the voice of indigenous peoples. As I …

Government-Sponsored Chaplains And Crisis: Walking The Fine Line In Disaster Response And Daily Life, 35 Hastings Const. L.Q. 505 (2008), Mary Jean Dolan

UIC Law Open Access Faculty Scholarship

No abstract provided.

Managing Radical Disputes: Public Reason, The American Dream, And The Case Of Same-Sex Marriage, Keith J. Bybee, Cyril Ghosh

College of Law - Faculty Scholarship

This paper proposes that ambiguous arguments play a crucial role in the management of radical disputes in democratic deliberation. Lofty though it might be, public reason is an impoverished ideal, and its celebrated role in democratic deliberation is vastly overrated, particularly among liberal theorists. In the courts of law and in the larger world, radical disputes unfold as messy, incomplete, ambiguous arguments are proposed by parties. This does not mean that all communication between parties must break down because parties do not abide by the rules of argumentation and evidentiary reasoning. It only implies that the language of ambiguity offers …

Is There A Moral Justification For Redressing Historical Injustices?, Katrina M. Wyman

Vanderbilt Law Review

In recent years, there have been lively popular and academic debates in the United States and elsewhere about whether injustices committed decades or even centuries ago should be redressed through official apologies, commissions of inquiry, reparations, and restitution. In the American context, the historical injustices for which redress has been pursued, and in some cases granted, include the internment of Japanese Americans during World War II, the Holocaust, and the mistreatment of Native Americans. Recently, the most prominent debate in the United States has been about whether federal and state governments and corporations should pay reparations to African Americans for …

Do Not Feed The Homeless: One Of The Meanest Cities For The Homeless Unconstitutionally Punishes The So-Called "Enablers", D. Matthew Lay

Nevada Law Journal

No abstract provided.

Thoroughly Modern: Sir James Fitzjames Stephen On Criminal Responsibility, Stephen J. Morse

All Faculty Scholarship

No abstract provided.

Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen

All Faculty Scholarship

The term “lifelog” refers to a comprehensive archive of an individual's quotidian existence, created with the help of pervasive computing technologies. Lifelog technologies would record and store everyday conversations, actions, and experiences of their users, enabling future replay and aiding remembrance. Products to assist lifelogging are already on the market; but the technology that will enable people fully and continuously to document their entire lives is still in the research and development phase. For generals, edgy artists and sentimental grandmothers alike, lifelogging could someday replace or complement, existing memory preservation practices. Like a traditional diary, journal or day-book, the lifelog …

Securing The Rule Of Law Through Interpretive Pluralism: An Argument From Comparative Law, Richard Stith

Law Faculty Publications

Can law rule? For law to rule, it must be enforced. But when law is enforced, not it but its enforcers may rule. To bind those enforcers firmly to the law, they, too, would have to be subjected not only to law but also to a still stronger force—which itself may then be lawless. The very effort to secure the rule of law appears to lead instead to ever more powerful human rulers.

Put another way: If we abolish the police and the courts, in order to leave people truly “not under man but under God and the law,”1 we …

From John F. Kennedy’S 1960 Campaign Speech To Christian Supremacy: Religion In Modern Presidential Politics, Stephen A. Newman

NYLS Law Review

No abstract provided.

The History Of The New York City Law Department: Fighting For The City By William E. Nelson, Ross Sandler

NYLS Law Review

No abstract provided.

Life And Liberty: Seven Factors That Will Better Evaluate Self-Defense In Nevada's Common Law On Retreat, Robert Stephens

Nevada Law Journal

No abstract provided.

"I'D Grab At Anything. And I'D Forget." Domestic Violence Victim Testimony After Davis V. Washington, 41 J. Marshall L. Rev. 937 (2008), Nancee Alexa Barth

UIC Law Review

No abstract provided.

Policymaking Under Pressure: The Perils Of Incremental Responses To Climate Change, Cary Coglianese, Jocelyn D’Ambrosio

All Faculty Scholarship

Federal policymakers’ reluctance to enact a comprehensive climate change policy during the past decade has coincided with increased awareness of the inevitability and severity of the problems from global climate change. Thus, it is no surprise that piecemeal, sub-federal policies have garnered considerable support. Bolstered by the political science literature on the promise of incrementalism and democratic experimentalism, many proponents of climate change action favor incremental steps in the hope that they will improve the environment or at least serve as a basis for more comprehensive policies. Against this hopeful view, we explain why ad hoc responses to climate change …

Applying Genericide To The Right Of Publicity, Zoe Argento

Vanderbilt Journal of Entertainment & Technology Law

This article proposes applying genericide to the right of publicity as a way to cabin the over-expansion of publicity rights. The article offers a different approach than previous proposals, which seek to either narrow the definition of publicity rights or bolster defenses, such as the First Amendment. Like trademark genericide, the celebrity's image comes to refer to an idea, not to the identity of the source of the product or to the identity of the celebrity. This article proposes a test: whether the aspect of the celebrity's persona at issue has been used in the public dialogue with a clearly …