Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Jurisprudence (34)
- Public Law and Legal Theory (24)
- Law and Philosophy (22)
- International Law (18)
- Legal History (18)
-
- Social and Behavioral Sciences (16)
- Arts and Humanities (14)
- Constitutional Law (14)
- Natural Law (14)
- Philosophy (11)
- Legal Studies (10)
- Ethics and Political Philosophy (9)
- Legal Theory (9)
- Law and Politics (8)
- Law and Economics (7)
- Law and Society (7)
- Legal Writing and Research (7)
- Courts (6)
- Human Rights Law (6)
- Judges (6)
- Political Science (6)
- Comparative and Foreign Law (5)
- Criminal Law (5)
- Political Theory (5)
- History (4)
- Transnational Law (4)
- European Law (3)
- Law and Psychology (3)
- Legal Education (3)
- Institution
-
- University of Michigan Law School (35)
- Selected Works (9)
- Fordham Law School (5)
- Notre Dame Law School (5)
- SelectedWorks (5)
-
- Northwestern Pritzker School of Law (4)
- University of Pennsylvania Carey Law School (4)
- Columbia Law School (3)
- University of Georgia School of Law (3)
- Vanderbilt University Law School (3)
- Yeshiva University, Cardozo School of Law (3)
- BLR (2)
- Boston University School of Law (2)
- Cleveland State University (2)
- Osgoode Hall Law School of York University (2)
- University of Colorado Law School (2)
- Chapman University (1)
- Chicago-Kent College of Law (1)
- Cornell University Law School (1)
- Emory University School of Law (1)
- Florida International University College of Law (1)
- Florida State University College of Law (1)
- George Washington University Law School (1)
- Georgetown University Law Center (1)
- Loyola University Chicago (1)
- Pepperdine University (1)
- Texas A&M University School of Law (1)
- U.S. Naval War College (1)
- University at Buffalo School of Law (1)
- University of Florida Levin College of Law (1)
- Publication Year
- Publication
-
- Michigan Law Review (20)
- Articles (7)
- Faculty Scholarship (7)
- Journal Articles (6)
- Fordham Law Review (5)
-
- All Faculty Scholarship (4)
- Faculty Articles (4)
- Faculty Working Papers (4)
- Michigan Journal of International Law (3)
- Reviews (3)
- Book Chapters (2)
- ExpressO (2)
- Georgia Journal of International & Comparative Law (2)
- LLM Theses (2)
- Law Faculty Articles and Essays (2)
- Publications (2)
- Vanderbilt Law Review (2)
- Brian M McCall (1)
- Chicago-Kent Law Review (1)
- Cornell International Law Journal (1)
- David Ingram (1)
- Doctoral Dissertations (1)
- Dr. Muhammad Munir (1)
- Eric A. Engle (1)
- Faculty Publications (1)
- Florida State University Journal of Transnational Law & Policy (1)
- Frank J. Garcia (1)
- GW Law Faculty Publications & Other Works (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Honors Theses (1)
- Publication Type
Articles 31 - 60 of 108
Full-Text Articles in Law
Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso
Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso
Pepperdine Law Review
No abstract provided.
Four Conceptualizations Of The Relations Of Law To Economics (Tribulations Of A Positivist Social Science), Pierre Schlag
Four Conceptualizations Of The Relations Of Law To Economics (Tribulations Of A Positivist Social Science), Pierre Schlag
Publications
This brief essay sketches the ways in which four leading economic thinkers (Knight, Coase, Posner and Sunstein) have dealt with a vexing tension in the relations of economics to law, the state, and the social. The tension arises as microeconomists address (or fail to address) the relations of their theories to “soft factors” such as psychology, politics, social institutions, etc. These soft factors are at once clearly consequential for economic behavior (and thus arguably should be included in the theories). At the same time, these soft factors are not self-evidently subject to determination by any known economic laws (and thus …
Authoritarian Legal Ethics: Bradley Wendel And The Positivist Turn, William H. Simon
Authoritarian Legal Ethics: Bradley Wendel And The Positivist Turn, William H. Simon
Faculty Scholarship
In this Review, I respond to the authoritarian theme in Lawyers and Fidelity to Law. In essence, I argue: neither libertarianism nor authoritarianism is a plausible starting point for a general approach to legal ethics. It is a great virtue of Ronald Dworkin’s jurisprudence that it suggests a conception of law and legal ethics that does not depend on either perspective. Moreover, it suggests a conception of lawyer responsibility that is more plausible than either Emersonianism or moralistic positivism. By gesturing toward positivism and by surrendering to less reflective authoritarian impulses, Wendel’s argument underestimates the extent to which social …
Planning Positivism And Planning Natural Law, Martin J. Stone
Planning Positivism And Planning Natural Law, Martin J. Stone
Faculty Articles
Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no …
Review: A Philosophy Of International Law, Frank J. Garcia
Review: A Philosophy Of International Law, Frank J. Garcia
Frank J. Garcia
No abstract provided.
Suicide Killing Of Human Life As Human Right - The Continuing Devolution Of Assisted Suicide Law In The United Kingdom, William Wagner
Suicide Killing Of Human Life As Human Right - The Continuing Devolution Of Assisted Suicide Law In The United Kingdom, William Wagner
William Wagner
SUICIDE KILLING OF HUMAN LIFE AS A HUMAN RIGHT
The Continuing Devolution of Assisted Suicide Law
in the United Kingdom
PROF. WILLIAM WAGNER, PROF. JOHN KANE, AND STEPHEN P. KALLMAN
ABSTRACT
Since the beginning of time, divine, natural, and positive law traditions of the United Kingdom reflected an inviolable standard that people should not assist in the killing of human life. This article reviews and analyzes the ancient inviolable benchmark, explaining why the common and statutory law of Britain historically reflected its moral reference point to prohibit assisted suicide. We then proceed to analyze a contemporary jurisprudential shift in Britain’s …
The Age Of Lawfare, Dale Stephens
Assessing Law’S Claim To Authority, Bas Van Der Vossen
Assessing Law’S Claim To Authority, Bas Van Der Vossen
Philosophy Faculty Articles and Research
The idea that law claims authority (LCA) has recently been forcefully criticized by a number of authors. These authors present a new and intriguing objection, arguing that law cannot be said to claim authority if such a claim is not justified. That is, these authors argue that the view that law does not have authority viciously conflicts with the view that law claims authority. I will call this the normative critique of LCA. In this article, I assess the normative critique of LCA, focusing predominantly on the arguments presented by its most incisive proponent Philip Soper. I defend a …
Planning For Legality, Jeremy Waldron
Planning For Legality, Jeremy Waldron
Michigan Law Review
What is law like? What can we compare it with in order to illuminate its character and suggest answers to some of the perennial questions of jurisprudence? Natural lawyers compare laws to moral propositions. A human law is an attempt by someone who has responsibility for a human community to replicate, publicize, and enforce a proposition of objective morality such as "Killing is wrong." Law is like moral reasoning, say the natural lawyers, and laws should be regarded as principles of right reason (principles that reason dictates as answers to the moral questions that need to be addressed in human …
Assessing The State Of The State Constitutionalism, Jim Rossi
Assessing The State Of The State Constitutionalism, Jim Rossi
Michigan Law Review
Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …
Legal Positivism As An Idea About Morality, Martin J. Stone
Legal Positivism As An Idea About Morality, Martin J. Stone
Faculty Articles
I ask what a proper critical target for 'legal positivism' might be. I argue that utilitarian moral theory, and more generally fully directive moral theories, are unacknowledged motivations for legal positivism. Contemporary debate about 'the nature of law' is, historically speaking, much more of a footnote to utilitarianism than has been recognized.
From Enlightened Positivism To Cosmopolitan Justice: Obstacles And Opportunities, Steven Ratner
From Enlightened Positivism To Cosmopolitan Justice: Obstacles And Opportunities, Steven Ratner
Book Chapters
This paper explores the possibilities for linkages between various forms of positivism accepted by many international lawyers and various forms of cosmopolitanism advocated by scholars of global justice. Building on Bruno Simma's conception of "enlightened positivism," it identifies areas in which cosmopolitan trends have already seeped into the fabric of international law and the key gaps between positivist and cosmopolitan visions of international law and the international community. Emphasizing the contributions that philosophical inquiry can add to international legal scholarship, and vice-versa, it concludes with some thoughts on further integration of cosmopolitan thinking into positivist methodologies.
The Illegitimacy Of Preventing Ngo Participation, Steve Charnovitz
The Illegitimacy Of Preventing Ngo Participation, Steve Charnovitz
GW Law Faculty Publications & Other Works
This article discusses whether non-governmental organizations (NGOs) may be excluded from the international governance system. The article describes three ideological viewpoints of NGOs: 1) state positivism, which views states as the ultimate decision-maker and finds that an international organization (IO) cannot grant any role to NGOs that is outside of the IO’s founding treaty, 2) functionalism, which finds the IO to be the decision-maker regarding the role played by an NGO, and 3) the community view, which views the IO as a compilation of decision-makers and places an individual, rather than a state, at the center. Although the majority view …
The Search Of A Unifying Theory: Why Pluralism In Public International Law Isn't Such A Bad Thing, Michael Buenger
The Search Of A Unifying Theory: Why Pluralism In Public International Law Isn't Such A Bad Thing, Michael Buenger
Michael Buenger
For well over 200 hundred years with the coining of the term “international law”, the world’s legal and international relations communities have struggled to develop coherent theories and methodologies to explain a phenomenon that is quite different from our concept of law as drawn from our domestic experiences. Over time this quest has produced various schools of thought and methodologies seemingly seeking, in one form or another, the same outcome: a unifying theory of or approach to the legal thinking that undergirds systems of public international law and explains why such systems work or in some cases do not work. …
The Good, The Law, And The Municipal Ideal - An Integrative Developmental View Of The Case Of The Speluncean Explorers And The Crisis Of Meaning In Western Jurisprudence, Sean S. Yang
Sean S Yang
For centuries, law had been understood as something sacred, transcendent, a set of righteous directives emanating from a divine authority. Less than three hundred years ago, something strange happened. A handful of humans began to think a new type of thought: they conceived the law as a self-contained system understandable on its own terms, its merit determined only by its consistency with "reason," the correctness and supremacy of which was self-evident. Less than one hundred years ago, something even stranger occurred: another handful of humans directed their attention to thought itself and began creating knowledge about knowledge, writing language about …
Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane
Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane
Faculty Scholarship
This is a largely critical review of Professor Aaron Fichtelberg’s philosophical analysis of international law. The centerpiece of the book’s affirmative agenda, a “non-reductionist” definition of international law that purports to elide various forms of international law skepticism, strikes the reviewer as circular, misguided in general, and, in its application to substantive international legal issues, difficult to distinguish from a rote form of legal positivism. Law at the Vanishing Point’s avowed empirical methodology and critical agenda, while largely unobjectionable, offer little that has not been said before, often with equal if not greater force. I commend the author’s effort to …
The Limits Of Legal Realism, Anthony D'Amato
The Limits Of Legal Realism, Anthony D'Amato
Faculty Working Papers
This article will address some criticisms of legal realism, primarily those of H.L.A. Hart, that have been unanswered in the literature and have appeared to discredit the realist approach to law. The article will also articulate what I believe to be more difficult problems with legal realism.
Elmer's Rule: A Jurisprudential Dialogue, Anthony D'Amato
Elmer's Rule: A Jurisprudential Dialogue, Anthony D'Amato
Faculty Working Papers
Cardozo wrote of Riggs v. Palmer that this case that two analytical paths pointed in different directions and the judges selected the path that seemed better to lead to "justice". Dworkin has claimed that the case demonstrates the triumph of certain "principles" over what are called "rules of law". Taylor has argued that there was no "law" at all about murderers inheriting from testators before the actual decision in Riggs, and that consequently the decision itself was the only "law" that affected Elmer. All of these suggest that the decision in Riggs was largely unpredictable and therefore must have come …
The Fog Of Certainty, Robert B. Ahdieh
The Fog Of Certainty, Robert B. Ahdieh
Faculty Scholarship
In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”
For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that …
Natural Law, Positive Law, And Conflicting Social Norms In Harper Lee's To Kill A Mockingbird, Maureen E. Markey
Natural Law, Positive Law, And Conflicting Social Norms In Harper Lee's To Kill A Mockingbird, Maureen E. Markey
Maureen E. Markey
This Article explores the complex interaction of natural law, positive law, and conflicting social norms in To Kill a Mockingbird by Harper Lee, one of the most widely read works in all of American literature and a classic of the Law and Literature canon. Because Atticus Finch, more than any real life lawyer, exemplifies both the personal and professional identity that most lawyers strive for, the novel has been hugely influential in many lawyers= lives. In a profession often stereotyped as greedy, amoral, and uncaring, Atticus represents transcendent moral values, traditionally recognized as a natural law view of the world, …
Taking History Seriously: Textulism,Originalim, And The Ninh Amndment, Thomas B. Mcaffee
Taking History Seriously: Textulism,Originalim, And The Ninh Amndment, Thomas B. Mcaffee
Thomas B. McAffee
Dean William Trenor critques constitutional txtualism,contending that it pays too much attention to the words,gramma, and placement of clauses in the Constitution, and too litte to the history leding to the adoption of the interpreted language. An illusration is Amar's treatment of the Ninth Amendment in his book on the Bill of Rights. This treatment agrees that history sheds light on meaning,butcontends that the Ninth Amendent was drafted to secure right retained by granting limied power. The modern debate, moreover, is over how to intepret a postvist Constitution.
Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman
Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman
All Faculty Scholarship
This essay, a contribution to a forthcoming edited volume on Hart's rule of recognition and the U.S. Constitution, advances one argument and pitches one proposal. The argument is that Hart's theory of law does not succeed. On Hart's account, legal propositions are what they are - that is, they have the particular content and status that they do - by virtue of their satisfying necessary and sufficient conditions that are themselves established by a special sort of convergent practice among officials. American constitutional theorists are often troubled by this account because it seems to imply that in the "hard cases" …
Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall
Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall
Brian M McCall
This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.
The Fake Revolution: Understanding Legal Realism, Eric A. Engle
The Fake Revolution: Understanding Legal Realism, Eric A. Engle
Eric A. Engle
Abstract: Legal interpretation in the United States changed dramatically between 1930 and 1950. The Great Depression and World War II unleashed radical critique (particularly prior to the war). Legal realism proposed radical new methods of legal interpretation to try to meet the challenges of global depression and global war. The new legal methods proposed by realism at first seemed to indicate a new legal order. In fact, they only preserved the old order, protecting it from fundamental change. Thus, the same problem, cyclical economic downturn triggering war for resources and market share recurred in Vietnam. Just as the depression and …
The Value Of Year Books Of International Law, James C. Hathaway
The Value Of Year Books Of International Law, James C. Hathaway
Articles
Is there still a place for a 'Yearbook' of International Law? Viewed as no more than an annually published volume of scholarship, one would surely answer in the negative. There is no shortage of excellent law journals, including journals focused on international and comparative law. It is thus doubtful that any quality article published in a yearbook would have failed to find a good home elsewhere. With even relatively obscure law journals readily available in electronic form at minimal cost and with maximum ease, the case for a yearbook is surely weak if predicated simply on the importance of disseminating …
Selective Affinities: On The American Reception Of Hans Kelsen's Legal Theory , D. A. Jeremy Telman
Selective Affinities: On The American Reception Of Hans Kelsen's Legal Theory , D. A. Jeremy Telman
ExpressO
Hans Kelsen (1881-1973), who lived and taught in the United States for over three decades, was one of those émigré intellectuals whose, “style of thinking,” as H. Stuart Hughes put it, “withered or barely held [its] own in the new American setting.” Kelsen’s relative obscurity in the U.S. legal academy continues despite a recent revival of interest in German legal theory among U.S. academics. Oddly enough, that revival of interest, which has been spearheaded by self-described post-Marxists and other progressives seeking to develop a new critique of liberalism, has not focused on Kelsen and his social-democratic critics, instead latching onto …
The Intrinsic Value Of Obeying A Law: Economic Analysis Of The Internal Viewpoint, Robert Cooter
The Intrinsic Value Of Obeying A Law: Economic Analysis Of The Internal Viewpoint, Robert Cooter
Fordham Law Review
No abstract provided.
Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler
Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler
Fordham Law Review
No abstract provided.
Are Constitutional Norms Legal Norms?, Jeremy Waldron
Are Constitutional Norms Legal Norms?, Jeremy Waldron
Fordham Law Review
No abstract provided.
A Socio-Legal Methodology For The Internal/External Distinction: Jurisprudential Implications, Brian Z. Tamanaha
A Socio-Legal Methodology For The Internal/External Distinction: Jurisprudential Implications, Brian Z. Tamanaha
Fordham Law Review
No abstract provided.