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Full-Text Articles in Law

Three Modalities Of (Originalist) Fiduciary Constitutionalism, Ethan J. Leib Jan 2023

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 May 2018

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 Feb 2016

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 Oct 2011

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 Jan 2009

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 Jan 2008

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 Jan 2008

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

A Tale Of Two Trajectories, Cynthia A. Williams

Fordham Law Review

No abstract provided.


Against Interpretive Obligation (To The Supreme Court), Abner S. Greene Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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 Jan 2006

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. Jan 1998

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 Jan 1995

Analytic Deconstructionism? The Intellectual Voyeurism Of Anthony D'Amato, Alan R. Madry

Fordham Law Review

No abstract provided.


What Of Stare Decisis?, Roscoe Pound Jan 1941

What Of Stare Decisis?, Roscoe Pound

Fordham Law Review

No abstract provided.