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Full-Text Articles in Law

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney Apr 2018

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Faculty Publications

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law ...


Crafting Precedent, Richard C. Chen Jan 2017

Crafting Precedent, Richard C. Chen

Faculty Publications

(with the Hon. Paul J. Watford & Marco Basile)

How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, a recent treatise by Bryan Garner and twelve distinguished appellate judges. The treatise sets aside more theoretical and familiar questions about whether and why earlier decisions (especially wrong ones) should bind courts in new cases. Instead, it offers an exhaustive how-to guide for practicing lawyers and judges: how to identify relevant precedents, how to weigh them, and how to interpret them. This Review takes up the treatise on its ...


Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong May 2015

Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong

Faculty Publications

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other ...


Corporate Aid To Governmental Authority: History And Analysis Of An Obscure Power In Delaware Corporate Law, David Yosifon Jun 2013

Corporate Aid To Governmental Authority: History And Analysis Of An Obscure Power In Delaware Corporate Law, David Yosifon

Faculty Publications

The Delaware General Corporation Law contains an obscure provision stating that all corporations have the power to “[t]ransact any lawful business which the corporation’s board of directors shall find to be in aid of governmental authority.” 8 DGCL §122(12). This oddly worded provision has never been applied, analyzed, or interpreted by any court. It has received almost no treatment by corporate law scholars. This lack of attention is surprising, given that by its own terms the provision seems to bear on fundamental corporate law themes, such as the purpose of corporations, the scope of directors’ fiduciary obligations ...


Legal Latin Americanism, Jorge L. Esquirol Jan 2013

Legal Latin Americanism, Jorge L. Esquirol

Faculty Publications

No abstract provided.


“I’M Not Quite Dead Yet!”: Rethinking Anti-Lapse Redistribution Of A Dead Beneficiary’S Gift, Eloisa Rodriguez-Dod Jan 2013

“I’M Not Quite Dead Yet!”: Rethinking Anti-Lapse Redistribution Of A Dead Beneficiary’S Gift, Eloisa Rodriguez-Dod

Faculty Publications

Anti-lapse statutes create a category of substitute takers when a beneficiary prematurely dies. They are based on the legislature’s presumption of how a testator or settlor would want his property distributed in these circumstances. However, a testator’s or settlor’s intent may effectively be frustrated by this presumed intent.

This Article critically examines the tension between an individual’s autonomy and societal goals in the context of anti-lapse statutes applicable to wills and trusts. It scrutinizes the current rules of construction regarding anti-lapse statutes and identifies their deficiencies in their application to wills and trusts. This Article analyzes ...


Due Process In The American Identity, Cassandra Burke Robertson Jan 2012

Due Process In The American Identity, Cassandra Burke Robertson

Faculty Publications

In the last four years, public opinion polls have found an increasingly high level of public support for the methods applied in the war on terror. A significant majority of the population now expresses support for targeted killing through drone strikes and for the indefinite detention of suspected terrorists at Guantánamo Bay. While there are undoubtedly many dynamics at play in the public's changing views of national security and due process, this Article examines one piece of the puzzle: how the concept of due process fits within the structure of the American identity.

This Article examines due process and ...


Kenya Vs. The Icc Prosecutor, Charles Chernor Jalloh Jan 2012

Kenya Vs. The Icc Prosecutor, Charles Chernor Jalloh

Faculty Publications

No abstract provided.


Leiter On The Legal Realists, Michael Steven Green Jan 2011

Leiter On The Legal Realists, Michael Steven Green

Faculty Publications

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal ...


Reading The Product: Warnings, Disclaimers, And Literary Theory, Laura A. Heymann Jul 2010

Reading The Product: Warnings, Disclaimers, And Literary Theory, Laura A. Heymann

Faculty Publications

No abstract provided.


The Jurisprudential Niche Occupied By Law And Economics, Nicholas Mercuro Jan 2009

The Jurisprudential Niche Occupied By Law And Economics, Nicholas Mercuro

Faculty Publications

This paper describes the jurisprudential niche occupied by the several schools of thought that comprise the field of Law and Economics in present-day legal scholarship. It begins by providing a brief history of law in the U.S.; it highlights the void left in law by the Legal Realists; it then very briefly explores some of the theories that attempted to fill that void including critical legal studies, feminist jurisprudence, and critical race theory. The paper then turns to its main focus - describing the several schools of thought that comprise the field of Law and Economics that has also helped ...


Justices As Economic Fixers: A Response To A Macrotheory Of The Court, Scott Baker, Adam Feibelman, William P. Marshall Jan 2009

Justices As Economic Fixers: A Response To A Macrotheory Of The Court, Scott Baker, Adam Feibelman, William P. Marshall

Faculty Publications

No abstract provided.


Dworkin V. The Philosophers: A Review Essay On Justice In Robes, Michael Steven Green Jan 2007

Dworkin V. The Philosophers: A Review Essay On Justice In Robes, Michael Steven Green

Faculty Publications

In this review essay, Professor Michael Steven Green argues that Dworkin's reputation among his fellow philosophers has needlessly suffered because of his refusal to back down from his "semantic sting" argument against H. L. A. Hart. Philosophers of law have uniformly rejected the semantic sting argument as a fallacy. Nevertheless Dworkin reaffirms the argument in Justice in Robes, his most recent collection of essays, and devotes much of the book to stubbornly, and unsuccessfully, defending it. This is a pity, because the failure of the semantic sting argument in no way undermines Dworkin's other arguments against Hart.


Justice Iacobucci And The 'Golden And Straight Metwand' Of Canadian Tax Law, David G. Duff Jan 2007

Justice Iacobucci And The 'Golden And Straight Metwand' Of Canadian Tax Law, David G. Duff

Faculty Publications

The article examines the contributions of Supreme Court Justice Frank Iacobucci in the Canadian tax jurisprudence. The traditional Anglo-Canadian and American judicial approaches to tax statutes was taken into account. Key information about significant tax decisions made by Iacobucci is presented. On the other hand, his judicial restraint and legislative supremacy was also evaluated.


The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles Chernor Jalloh Jan 2007

The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles Chernor Jalloh

Faculty Publications

This article is the first major study examining whether the Special Court for Sierra Leone (SCSL) has made, or is making, any contribution to the development of international law. The author concludes that it has. In this vein, he analyzes the creation of the Defence Office, the Legacy Phase Working Group and the Outreach Section to show that some of the structural novelties introduced through SCSL practice have proven to be worthy of replication within other international criminal courts. Taking as an example the controversy regarding the United Nations Security Council’s power to create ad hoc international criminal tribunals ...


Rules, Standards, And The Internal Point Of View, Dale A. Nance Jan 2006

Rules, Standards, And The Internal Point Of View, Dale A. Nance

Faculty Publications

The general thrust of the present discussion is that, in addition to its contribution to economizing on enforcement costs, there is a connection between the internal point of view and the aspiration to republican self-government: the greater the incidence of the former, the greater the achievement of the latter, ceteris paribus. This fact imbues the notion of a healthy legal system with a crucially normative component that goes beyond, and need not be inconsistent with, efficient social organization.


Is There A Place For Race As A Legal Concept, Sharona Hoffman Jan 2004

Is There A Place For Race As A Legal Concept, Sharona Hoffman

Faculty Publications

What does "race" mean? The word "race" is omnipresent in American social, political, and legal discourse. The concept of "race" is central to contemporary debate about affirmative action, racial profiling, hate crimes, health inequities, and many other issues. Nevertheless, the best research in genetics, medicine, and the social sciences reveals that the concept of "race" is elusive and has no reliable definition.

This article argues that "race" is an unnecessary and potentially pernicious concept. As evidenced by the history of slavery, segregation, the Holocaust, and other human tragedies, the idea of "race" can perpetuate prejudices and misconceptions and serve as ...


The Empty Promise Of Compassionate Conservatism: A Reply To Judge Wilkinson, William P. Marshall Jan 2004

The Empty Promise Of Compassionate Conservatism: A Reply To Judge Wilkinson, William P. Marshall

Faculty Publications

No abstract provided.


The Economic Ambiguity (And Possible Irrelevance) Of Tax Transition Rules, Eric D. Chason Apr 2003

The Economic Ambiguity (And Possible Irrelevance) Of Tax Transition Rules, Eric D. Chason

Faculty Publications

No abstract provided.


The Unruliness Of Rules, Peter A. Alces Jan 2003

The Unruliness Of Rules, Peter A. Alces

Faculty Publications

No abstract provided.


Due Process Erosion: The Diminution Of Live Testimony At The Icty, Megan A. Fairlie Jan 2003

Due Process Erosion: The Diminution Of Live Testimony At The Icty, Megan A. Fairlie

Faculty Publications

Shortly after its creation in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) adopted an adversarial construct and advocated a preference for the presentation of direct evidence, or live witness testimony, in its criminal trials. In the wake of that decision and under considerable pressure to expedite its proceedings, the ICTY judges responded with efforts to streamline the trial process, amending the Tribunal’s Rules of Procedure and Evidence so as to incrementally increase the admissibility of written evidence. This article tracks the relevant rule changes and questions the merit of the decision to move away from live ...


The Impossibility Of Lujan's Project, Gene R. Nichol Jan 2001

The Impossibility Of Lujan's Project, Gene R. Nichol

Faculty Publications

No abstract provided.


The Supreme Court's Backwards Proportionaility Jurisprudence: Conparing Judicial Review Of Excessive Criminal Punishments And Excessive Punitive Damages Award, Adam M. Gershowitz Sep 2000

The Supreme Court's Backwards Proportionaility Jurisprudence: Conparing Judicial Review Of Excessive Criminal Punishments And Excessive Punitive Damages Award, Adam M. Gershowitz

Faculty Publications

No abstract provided.


Farewell To The Quick Look: Redefining The Scope And Content Of The Rule Of Reason, Alan J. Meese Jul 2000

Farewell To The Quick Look: Redefining The Scope And Content Of The Rule Of Reason, Alan J. Meese

Faculty Publications

No abstract provided.


Regret And Contract "Science", Peter A. Alces Jan 2000

Regret And Contract "Science", Peter A. Alces

Faculty Publications

No abstract provided.


Section 365 In The Consumer Context: Something Old, Something New, Something Borrowed, Something Blue, Michael G. Hillinger, Ingrid Michelsen Hillinger Jan 1999

Section 365 In The Consumer Context: Something Old, Something New, Something Borrowed, Something Blue, Michael G. Hillinger, Ingrid Michelsen Hillinger

Faculty Publications

The § 365 consumer debtor case law has a further complication. Much of it arises in the context of the last great bankruptcy frontier, Chapter 13. Until recently, Chapter 11 has occupied the minds and hearts of courts and attorneys. Not any more. And, as attorneys and courts take a closer, harder look at Chapter 13, it is no longer possible to describe it as a “streamlined creditors-can’t-vote Chapter 11”. Chapter 13 is unique, presenting its very own quandaries, not the least of which is how its provisions and § 365 interact. We live in interesting times.


Hang On To Your Hats! Terry Into The Twenty-First Century, Eric L. Muller Jan 1998

Hang On To Your Hats! Terry Into The Twenty-First Century, Eric L. Muller

Faculty Publications

No abstract provided.


Places In The Heartland: Departure Jurisprudence After Koon, Frank O. Bowman Iii Jul 1997

Places In The Heartland: Departure Jurisprudence After Koon, Frank O. Bowman Iii

Faculty Publications

There are two things upon which I suspect most observers will agree following the decision in Koon v. United States. First, the United States Supreme Court wants district courts to have more discretion to depart from the otherwise applicable guideline range, and wants appellate courts to have less authority to overturn those discretionary judgments. Second, in light of the conflicting signals the Court gave by, on the one hand, declaring that the standard of appellate review for departure decisions is to be abuse of discretion,” and on the other hand, finding that two of the five factors relied upon by ...


Defensor Fidei: The Travails Of A Post-Realist Formalism, Lyrissa Lidsky Jan 1995

Defensor Fidei: The Travails Of A Post-Realist Formalism, Lyrissa Lidsky

Faculty Publications

This Article probes the philosophical and psychological attractions of formalism and suggests that its promise of stability and order may be essential to the effective functioning of the legal system, even if the promise can never be realized.


Abortion In Israel: Community, Rights, And The Context Of Compromise, Noga Morag-Levine Jan 1994

Abortion In Israel: Community, Rights, And The Context Of Compromise, Noga Morag-Levine

Faculty Publications

In contrast to American understandings of abortion as a uniquely tragic dilemma, the Israeli abortion issue is a tangential controversy in a larger debate over the relationship between the state’s national and democratic identity. The divergent paths of abortion politics in Israel and the United States reflect important differences in underlying religious doctrines, geographical size, feminist ideologies, and the immediacy of other social cleavages. More profoundly, the two abortion stories are the product of distinct understandings of the mutual obligations between citizens and their state and of the relationship between individual and collective rights and duties. While these differences ...