Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 31
Full-Text Articles in Law
Three Modalities Of (Originalist) Fiduciary Constitutionalism, Ethan J. Leib
Three Modalities Of (Originalist) Fiduciary Constitutionalism, Ethan J. Leib
Faculty Scholarship
There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that …
Judicial Engagement, New Originalism, And The Fortieth Anniversary Of Government By Judiciary, Eric J. Segall
Judicial Engagement, New Originalism, And The Fortieth Anniversary Of Government By Judiciary, Eric J. Segall
Fordham Law Review Online
Part I briefly summarizes Berger’s originalist approach. Part II describes how the new Judicial Engagement originalists suggest judges should resolve constitutional cases. Part III explains why text and history do not support their judicially enforceable, libertarian political agendas. Part III does not suggest that this agenda leads to bad results, is harmful, or should not be adopted by today’s judges. But for the sake of governmental and academic transparency, judges, legal scholars, and politicians who embrace Judicial Engagement, should also accept that their theory of judicial review is not supported by either the Constitution’s text or history. Judicial Engagement can …
Will Grassroots Democracy Solve The Government Fiscal Crisis?, Julie M. Chesnik
Will Grassroots Democracy Solve The Government Fiscal Crisis?, Julie M. Chesnik
Fordham Urban Law Journal
No abstract provided.
The Honor Of Private Law, Nathan Oman
The Honor Of Private Law, Nathan Oman
Fordham Law Review
While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: the vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. …
Emotional State And Localized Norms: A Reply, Clare Huntington
Emotional State And Localized Norms: A Reply, Clare Huntington
Faculty Scholarship
This piece is a response to Emory Law professor Martha Albertson Fineman's comments on Professor Huntington's Article "Familial Norms and Morality, 59 Emory L.J 1103 (2010).
Punishing Family Status , Jennifer M. Collins, Ethan J. Leib, Dan Markel
Punishing Family Status , Jennifer M. Collins, Ethan J. Leib, Dan Markel
Faculty Scholarship
This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …
Happy Families - Translating Positive Psychology Into Family Law, Clare Huntington
Happy Families - Translating Positive Psychology Into Family Law, Clare Huntington
Faculty Scholarship
Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This …
What Is The Internal Point Of View?, Scott J. Shapiro
What Is The Internal Point Of View?, Scott J. Shapiro
Fordham Law Review
No abstract provided.
Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen Perry
Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen Perry
Fordham Law Review
No abstract provided.
Hobbes And The Internal Point Of View, Claire Finkelstein
Hobbes And The Internal Point Of View, Claire Finkelstein
Fordham Law Review
No abstract provided.
Legal Obligations And The Internal Aspect Of Rules, Benjamin C. Zipursky
Legal Obligations And The Internal Aspect Of Rules, Benjamin C. Zipursky
Fordham Law Review
No abstract provided.
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.
Rules, Standards, And The Internal Point Of View, Dale A. Nance
Rules, Standards, And The Internal Point Of View, Dale A. Nance
Fordham Law Review
No abstract provided.
Taking Cues: Inferring Legality From Others' Conduct, Bruce A. Green
Taking Cues: Inferring Legality From Others' Conduct, Bruce A. Green
Fordham Law Review
No abstract provided.
Lawyers, Citizens, And The Internal Point Of View, W. Bradley Wendel
Lawyers, Citizens, And The Internal Point Of View, W. Bradley Wendel
Fordham Law Review
No abstract provided.
Duty In Tort Law: An Economic Approach, Keith N. Hylton
Duty In Tort Law: An Economic Approach, Keith N. Hylton
Fordham Law Review
No abstract provided.
Seeing Tort Law From The Internal Point Of View: Holmes And Hart On Legal Duties, John C.P. Goldberg, Benjamin C. Zipursky
Seeing Tort Law From The Internal Point Of View: Holmes And Hart On Legal Duties, John C.P. Goldberg, Benjamin C. Zipursky
Fordham Law Review
No abstract provided.
Someplace Between Philosophy And Economics: Legitimacy And Good Corporate Lawyering, Donald C. Langevoort
Someplace Between Philosophy And Economics: Legitimacy And Good Corporate Lawyering, Donald C. Langevoort
Fordham Law Review
No abstract provided.
A Tale Of Two Trajectories, Cynthia A. Williams
A Tale Of Two Trajectories, Cynthia A. Williams
Fordham Law Review
No abstract provided.
Against Interpretive Obligation (To The Supreme Court), Abner S. Greene
Against Interpretive Obligation (To The Supreme Court), Abner S. Greene
Fordham Law Review
No abstract provided.
The "Bad Man" Goes To Washington: The Effect Of Political Influence On Corporate Duty, Jill E. Fisch
The "Bad Man" Goes To Washington: The Effect Of Political Influence On Corporate Duty, Jill E. Fisch
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.
The Internal Point Of View In Law And Ethics: Introduction, Benjamin C. Zipursky
The Internal Point Of View In Law And Ethics: Introduction, Benjamin C. Zipursky
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.
Evaluating Goldberg And Zipursky's Civil Recourse Theory, Jane Stapleton
Evaluating Goldberg And Zipursky's Civil Recourse Theory, Jane Stapleton
Fordham Law Review
No abstract provided.
Applying The Laws Of Logic To The Logic Of Laws, Hillel Bavli
Applying The Laws Of Logic To The Logic Of Laws, Hillel Bavli
Fordham Urban Law Journal
The article begins by discussing the difficulties of proving consistency within a formal legal system generally. After establishing the importance of a formalized legal model as a prerequisite of rigorous examination of consistency, it proceeds to investigate issues intrinsic to the current system of law that may prevent formalization of a just legal system as currently conceived. The article argues that flexibility inherent in a just legal system may foreclose the possibility of legal formalization or any comprehensive model thereof. The article concludes, however, that a model whose purpose is the examination of consistency within a system need not necessarily …
The Legal Profession, The Impact Of Law And Legal Theory, Foreword, Geoffrey C. Hazard, Jr.
The Legal Profession, The Impact Of Law And Legal Theory, Foreword, Geoffrey C. Hazard, Jr.
Fordham Law Review
No abstract provided.
Analytic Deconstructionism? The Intellectual Voyeurism Of Anthony D'Amato, Alan R. Madry
Analytic Deconstructionism? The Intellectual Voyeurism Of Anthony D'Amato, Alan R. Madry
Fordham Law Review
No abstract provided.
What Of Stare Decisis?, Roscoe Pound