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Articles 1 - 8 of 8
Full-Text Articles in Law
Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor
Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor
Michigan Law Review
Championed on the Supreme Court by Justice Scalia and Justice Thomas and in academia most prominently by Professor Akhil Amar textualism has emerged within the past twenty years as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning, and in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This Article uses Professor …
A Virtuous State Would Not Assign Correctional Housing Based On Ability To Pay, Bradley W. Moore
A Virtuous State Would Not Assign Correctional Housing Based On Ability To Pay, Bradley W. Moore
Michigan Law Review First Impressions
Pay-to-stay jails expose the moral tension between the dominant theories of punishment: retributivism and deterrence. A turn to a third major moral theory—virtue ethics—resolves this tension. According to virtue ethics, the moral worth of an action follows from both the character of the action and the disposition of the actor. Virtuous acts promote human flourishing— the central goal of life—when they are the right actions performed for the right reasons. The virtue ethics theory of punishment suggests that pay-to-stay jails conflict with the promotion of human flourishing. A virtuous state’s criminal justice system would not include fee-based incarceration because it …
Toward A Third-Wave Feminist Legal Theory: Young Women, Pornography And The Praxis Of Pleasure, Bridget J. Crawford
Toward A Third-Wave Feminist Legal Theory: Young Women, Pornography And The Praxis Of Pleasure, Bridget J. Crawford
Michigan Journal of Gender & Law
Part I of this Article explores the general themes of third-wave feminist writings. The Article begins with an overview of third-wave feminist literature and its predominant concerns. These concerns are (1) dissatisfaction with earlier feminists; (2) the multiple nature of personal identity; (3) the joy of embracing traditional feminine appearance and attributes; (4) the centrality of sexual pleasure and sexual self-awareness; (5) the obstacles to economic empowerment; and (6) the social and cultural impact of media and technology. Textual analysis reveals third-wave feminists' reliance on non-legal tools for remedying gender inequality. Although third-wave feminists acknowledge the law's role in women's …
Review Of The Philosophy Of Positive Law: Foundations Of Jurisprudence, Howard Bromberg
Review Of The Philosophy Of Positive Law: Foundations Of Jurisprudence, Howard Bromberg
Reviews
This meticulously researched book addresses a central question of analytical and philosophical jurisprudence: What is positive law? Throughout his analysis, James Bernard Murphy, author of The Moral Economy of Labor: Aristotelian Themes in Economic Theory (New Haven: Yale University Press, 1993), contrasts positive law with the other two kinds of law that constitute the triad of legal concepts - natural law and customary law. Although they are treated at length in this work, Murphy states in the preface that he intends to write a companion volume on natural law and customary law, "thus completing the foundation of philosophical jurisprudence" (p. …
On The Relation Between Form And Substance In Law, Philip E. Soper
On The Relation Between Form And Substance In Law, Philip E. Soper
Articles
In this paper the author deals with some theoretical aspects of Robert Summers’ last book (Summers 2006). In particular, he concentrates on the hazy relationship between form and substance in Summers’ theory. In order to analyze some major difficulties entailed in the thesis that form and substance are different and independent things, the author discusses three specific questions: (1) the difference between form and substance; (2) the possibility of a form meant to be value-neutral; (3) how to distinguish a form-centered approach from a formalistic approach when one has to interpret a statute. This last question is dealt with through …
Authority And Reality, Joseph Vining
Authority And Reality, Joseph Vining
Book Chapters
Imagination has been introduced as a term of art in discussion of the social and political world. Some years ago James Boyd White turned to it in The Legal Imagination, his monumental work on the foundations of secular law and legal practice. A prominent example of its use today is Charles Taylor's Modern Social Imaginaries, tracing changes in the common mind leading to what we now call modernity. The term can have a large scope and at the same time a rather definite meaning. "Imagination" is at the center of Mark Massa's comments on the contrarian position of the Catholic …
The Mystery Of The Individual In Modern Law, Jospeh Vining
The Mystery Of The Individual In Modern Law, Jospeh Vining
Articles
To their murderers these wretched people were not individuals at all. They came in wholesale lots and were treated worse than animals. This was Telford Taylor, beginning the presentation of the "Medical Case" at the Nuremberg Trials. The "Medical Case" was not about genocide or war or the conduct of war. It was about experimentation on human beings, and it was this trial that produced the "Nuremberg Code," the first control of such treatment of human beings by one another, so surprisingly late in the history of modern scientific investigation, midtwentieth century, and so surprisingly absent everywhere before, despite the …
Legal Commitments And Religious Commitments, Jospeh Vining
Legal Commitments And Religious Commitments, Jospeh Vining
Articles
In his elegant and accessible new book, Law's Quandary, Steven Smith groups our various senses of what is real for us into ontological families: the mundane; the scientific, including mathematics; and the religious. These supply "lumberyards," as it were, for thought and discussion about the world and action in it. Law itself is not one of them. Those involved in law, as citizens or professionals practicing law or speaking for or about law, are presented in the book as looking out from law to the ontological resources available in the lumberyards he describes.