Law Commons^™

Thurgood Marshall: The Writer, Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, Ann E. Fruth

Anna P. Hemingway

Breaking New Ground In International Criminal Law And Philosophy, Michelle Dempsey

Michelle Madden Dempsey

This is a book review of Larry May and Zachary Hoskins, eds., International Criminal Law and Philosophy (Cambridge University Press, 2010).

Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David Gray

David C. Gray

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …

An Excuse-Centered Approach To Transitional Justice, David Gray

David C. Gray

Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice. This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define …

Theory, Identity, Vocation: Three Models Of Christian Legal Scholarship, William Brewbaker

William S. Brewbaker III

Recognizably Christian scholarship is becoming more commonplace in the American legal academy, yet little systematic attention has been given to fundamental questions of approach. This article highlights moments of continuity and discontinuity between Christian legal scholarship and its secular counterparts. Contrary to the expectations generated by contemporary political debate, the distinctive contribution of Christian legal scholarship is not primarily to provide ammunition for political programs of the right or the left, but to situate law and human legal practices within a larger story about the world. This article develops three models of Christian legal scholarship - theory, identity and vocation. …

The Obama Phenomenon: Deliberative Conversationalism & The Pursuit Of Community Through Presidential Politics, Robert Justin Lipkin

Robert Justin Lipkin

Restating Restitution: A Study In Contemporary Common Law Conceptualism, Chaim Saiman

Chaim Saiman

The ALI’s Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism, and shows that the Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels in fact make a difference, and assesses which recoveries are more (and less) likely under …

Reparations: A Remedies Law Perspective, Darren Hutchinson

Darren L Hutchinson

This article provides a general overview of reparations discourse in the United States and offers suggestions concerning how advocates of reparations might frame their claims. The author discusses how remedies law might be a useful means of redress for litigants and examines some of the political and legal barriers to reparations in the United States. The barriers include the failure of opponents to treat remedies for gross human rights or civil rights deprivations as a public good, rather than as a series of private transactions that benefit or burden individuals. The author ultimately sets the litigation model aside as providing …

Found Law, Made Law And Creation: Reconsidering Blackstone's Declaratory Theory, William Brewbaker

William S. Brewbaker III

The subject of this paper is Blackstone's famous declaratory theory of law - the claim that judges find the law, rather than make it. Blackstone's claim is widely rejected in the legal academy, often because Blackstone is (wrongly) associated with the brooding omnipresence view of law rejected in cases like Erie, Guaranty Trust and Southern Pacific Co. v. Jensen. I argue that Blackstone's theory fails for other reasons - namely, because his account does not square well with law practice as it exists and because his distinction between legislative lawmaking and judicial declaration is ultimately unsustainable. Despite its faults, Blackstone's …

Thomas Aquinas And The Metaphysics Of Law, William Brewbaker

William S. Brewbaker III

Despite modernity's longstanding aversion to metaphysics, legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This paper examines perhaps the most famous of metaphysical legal texts - Thomas Aquinas' still-widely-read Treatise on Law - with a view toward tracing the influence of Thomas' metaphysical presuppositions. This article shows that Thomas' account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas' hierarchical view of reality exposes tensions between Thomas' "top-down" account of law and his sophisticated "bottom-up" observations. For example, Thomas grounds human law's authority …

The Formless City Of Plato's Republic: How The Legal And Social Promotion Of Divorce And Same-Sex Marriage Contravenes The Principles And Undermines The Projects Of The Universal Declaration Of Human Rights, Scott Fitzgibbon

Scott T. FitzGibbon

In the Republic, Plato describes a stage in social decay called “formlessness,” where all sorts of differences are accepted and none is preferred. No one need hold office or obey. People are impatient with all the ties that ought to bind them. Plato's formess city displays three deplorable features. One is the denigration of law and custom. A second is ethical skepticism or nihilism. A third is the repudiation of duty. These features also characterize the divorce culture and the same-sex marriage movement. The Universal Declaration of Human Rights reflects a philosophy quite the reverse of Plato’s formless city. Its …

Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen Brady

Kathleen A Brady

Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded—at least in theory—significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of …

Federalism As Balance, Robert Justin Lipkin

Robert Justin Lipkin

Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism as balance does not satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore …

Race[,] Science, History, And Law, David Caudill

David S Caudill

No abstract provided.

Factless Jurisprudence, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Scientific Narratives In Law: An Introduction, David Caudill

David S Caudill

No abstract provided.

Progressive Race Blindness: Individual Identity, Group Politics, And Reform, Darren Hutchinson

Darren L Hutchinson

Critical Race Theorists advance race consciousness as a positive instrument for political and legal reform. A growing body of works by left-identified scholars, however, challenges this traditional progressive stance toward race consciousness.

After summarizing the contours of this budding literature, this Article criticizes the "progressive race blindness" scholarship on several grounds and offers an alternative approach to race consciousness that balances skepticism towards the naturalness of race with a healthy appreciation of the realities of racial subjugation and identity.

New Complexity Theories: From Theoretical Innovation To Doctrinal Reform, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

A Reply To Justice Philip Talmadge, Robert Lipkin

Robert Justin Lipkin

No abstract provided.

Identity Crisis: Intersectionality, Multidimensionality, And The Development Of An Adequate Theory Of Subordination, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Ignoring The Sexualization Of Race: Heteronormativity, Critical Race Theory And Anti-Racist Politics, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Identifying Law's Unconscious: Disciplinary And Rhetorical Contexts, David Caudill

David S Caudill

No abstract provided.

Lacan And The Subject Of Law: Toward A Psychoanalytic Critical Legal Theory, David Caudill

David S Caudill

No abstract provided.

Out Yet Unseen: A Racial Critique Of Gay And Lesbian Legal Theory And Political Discourse, Darren Hutchinson

Darren L Hutchinson

On The Naming Of Paranoia In Legal Scholarship, David Caudill

David S Caudill

No abstract provided.

Lacanian Ethics And The Desire For Law, David Caudill

David S Caudill

No abstract provided.

Lacan's Social Psychoanalysis: Religion And Community In A Pluralistic Society, David Caudill

David S Caudill

No abstract provided.

Pluralism And The Quality Of Religious Discourse In Law And Politics, David Caudill

David S Caudill

No abstract provided.

Pierre Schlag's "The Problem Of The Subject": Law's Need For An Analyst, David Caudill

David S Caudill

No abstract provided.

Beyond The Rhetoric Of Dirty Laundry: Examining The Value Of Internal Criticism Within Progressive Social Movements And Oppressed Communities, Darren Hutchinson

Darren L Hutchinson

No abstract provided.