Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Jurisprudence (22)
- Constitutional Law (7)
- Essays about the Arab Awakening (2011) (7)
- Criminal Law (6)
- International Affairs (6)
-
- Law and Society (6)
- Arab Awakening (5)
- Arab Spring (4)
- Governance and Politics in Islamic Societies (4)
- Justice (4)
- Public Law and Legal Theory (4)
- Affirmative action (3)
- Legal positivism (3)
- Same-sex marriage (3)
- Selected Articles (3)
- Anti-shredding (2)
- Arab World (2)
- Baker v. State (2)
- Civil Rights (2)
- Common Benefits Clause (2)
- Constitutional jurisprudence (2)
- Constitutional scholarship (2)
- Equality (2)
- International Law (2)
- Islamic Law (2)
- Jurisprudence of Marriage (2)
- Law (2)
- Law school curriculum (2)
- Middle East Politics (2)
- New Judicial Federalism (2)
- Publication Year
- Publication
-
- Ahmed E SOUAIAIA (10)
- Scott T. FitzGibbon (6)
- Robert M. Sanger (5)
- Patrick McKinley Brennan (4)
- Paulo Barrozo (4)
-
- Robert Rodes (4)
- Christian Dahlman (3)
- David C. Gray (3)
- Joshua P. Davis (3)
- Yuvraj Joshi (3)
- Charles H. Baron (2)
- Steven H. Shiffrin (2)
- Cecil J. Hunt II (1)
- Daniel M Katz (1)
- David A Sklansky (1)
- Emily L Sherwin (1)
- Erik Luna (1)
- Evelyn Aswad (1)
- Frank J. Garcia (1)
- Gregory C. Keating (1)
- Joan Hollinger (1)
- John Coons (1)
- Julie A. Nice (1)
- Leslie Meltzer Henry (1)
- Man YIP (1)
- Michelle Madden Dempsey (1)
- Peter Z. Grossman (1)
- Philippe Nonet (1)
- Robert C. Hockett (1)
- Robert J. Araujo S.J. (1)
Articles 31 - 60 of 74
Full-Text Articles in Law
The Liberty Of The Church: Source, Scope And Scandal, Patrick Brennan
The Liberty Of The Church: Source, Scope And Scandal, Patrick Brennan
Patrick McKinley Brennan
This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a …
Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Brennan
Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Brennan
Patrick McKinley Brennan
This paper argues that questions about "religious freedom" must be subordinated to the fundamental principle of the liberty of the Church, libertas Ecclesiae. The First Amendment's agnosticism with respect to the liberty of the Church is not ultimately normative. Catholics and others who merely seek religious "accommodation," as with the HHS mandate, for example, are agents of a status quo that illegitimately has comfortable self-preservation as its highest value. It is Catholic doctrine that "creation was for the sake of the Church," not for the sake of, say, religious freedom. The paper argues that the contingent constitution of …
New Legal Challenge To Guantanamo Confinement, Robert Sanger
New Legal Challenge To Guantanamo Confinement, Robert Sanger
Robert M. Sanger
We will discuss in this article a new Petition for Writ of Habeas Corpus filed in the federal court relating to the non-release of detainees held at Guantanamo Bay notwithstanding the order of the Administration for their release. As of this writing, the President of the United States has issued orders releasing at least 40 detainees, including Ahmed Adnan Ajam who is the subject of the new Petition. Ironically, under the National Defense Authorization Act for the Fiscal Years 2011-20131 (“NDAA”), the President is restricted from releasing detainees under the NDAA which was enacted as a partisan rider to defense …
Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman
Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman
Charles H. Baron
In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …
Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Citron, David Gray
Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Citron, David Gray
David C. Gray
In his insightful article The Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work, we therefore recommend that judges, legislators, and executives focus instead on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate …
Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share, Michelle Dempsey
Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share, Michelle Dempsey
Michelle Madden Dempsey
Amongst the many valuable contributions that Professor Antony Duff has made to criminal law theory is his account of what it means for a wrong to be public in character. In this chapter, I sketch an alternative way of thinking about criminalization, one which attempts to remain true to the important insights that illuminate Duff’s account, while providing (it is hoped) a more satisfying explanation of cases involving victims who reject the criminal law’s intervention.
Justice As Right Relationship: A Philosophical And Theological Reflection On Affirmative Action, Robert Araujo
Justice As Right Relationship: A Philosophical And Theological Reflection On Affirmative Action, Robert Araujo
Robert J. Araujo S.J.
No abstract provided.
The Reality Of Moral Imperatives In Liberal Religion, Howard Lesnick
The Reality Of Moral Imperatives In Liberal Religion, Howard Lesnick
howard lesnick
This paper uses a classic one-liner attributed to Dostoyoevski’s Ivan Karamozov, "Without God everything is permitted," to explore some differences between what I term traditional and liberal religion. The expansive connotations and implications of Ivan’s words are grounded in the historic association of wrongfulness and punishment, and in a reaction against the late modern challenge to the inexorability of that association, whether in liberal religion or in secular moral thought. The paper argues that, with its full import understood, Ivan’s claim begs critical questions of the meaning and source of compulsion and choice, and of knowledge and belief regarding the …
Revolutions And Rebellions And Syria's Paths To War And Peace, Ahmed Souaiaia
Revolutions And Rebellions And Syria's Paths To War And Peace, Ahmed Souaiaia
Ahmed E SOUAIAIA
In less than a month, peaceful Tunisian and Egyptian protesters ousted two of the most authoritarian rulers of the Arab world. The human and economic costs: a total of about 1100 people dead (300 in Tunisia and 800 in Egypt) and some decline in economic growth. These were the dignity revolutions. In contrast, the Syrian peaceful uprising quickly turning into armed rebellion is now 22 months old with over 60,000 people (civilians, rebels, security and military officers, women and children) dead, more than 4,000,000 persons displaced from their homes, and destruction estimated at $70 billion. This is now, without doubt, …
Por Um Law No Mundo: Fundamentos Jusfilosóficos Do Instituto Da Adoção Como Direito Humano, Paulo Barrozo
Por Um Law No Mundo: Fundamentos Jusfilosóficos Do Instituto Da Adoção Como Direito Humano, Paulo Barrozo
Paulo Barrozo
Este ensaio articula os fundamentos jusfilosóficos do direito humano e cosmopolita dos jovens privados de autêntica relação pais-filhos de serem adotados, tendo assim acesso à experiência de crescer como fihas ou filhos. Esta visão jusfilosófica da adoção como direito humano é contraposta à abordagem, até então predominante, consequencialista-filantrópica da adoção. Uma vez apresentados os fundamentos jusfilosóficos em questão, cinco principais distinções emergem entre a adoção como direito humano e a visão tradicional da adoção. Primeiro, a perspectiva da adoção como direito humano reconhece o fato de que negligência e abuso de jovens é proporcionalmente e em termos absolutos mais frequente …
The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott Howe
The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott Howe
Scott W. Howe
Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishments that they receive. The deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, …
Recognizing New Syrian National Coalition Alone Won’T End War In Syria, Ahmed Souaiaia
Recognizing New Syrian National Coalition Alone Won’T End War In Syria, Ahmed Souaiaia
Ahmed E SOUAIAIA
Those who doubt Lakhdar Brahimi’s assessment of the crisis in Syria ought to rethink their position. His ostensibly naïve initiative for a ceasefire over the Eid holidays might have been a brilliant maneuver that ended the existence of the Syrian National Council, the previously prominent face of the Syrian opposition. Before proposing an ambitious plan of six or one hundred points like his predecessor, Brahimi wanted to make sure that there are reliable representatives of both sides who can exert influence and control over their subordinates. After visiting Russia and China, he proposed, from Tehran, that both the opposition forces …
Who Is The Syrian Opposition?, Ahmed Souaiaia
Who Is The Syrian Opposition?, Ahmed Souaiaia
Ahmed E SOUAIAIA
Since the start of the uprising in Syria, countries supporting the opposition groups wanted to unify them. They organized a series of the so-called “Friends of Syria” conferences one after another only to adjourn without realizing their objective. In most cases, the meetings created more discord than opportunities for unity.
Why Is The U.S.-Islamic World Relation So Fragile?, Ahmed Souaiaia
Why Is The U.S.-Islamic World Relation So Fragile?, Ahmed Souaiaia
Ahmed E SOUAIAIA
No abstract provided.
Can Non-Violent Resistance And Armed Rebellion Co-Exist?, Ahmed Souaiaia
Can Non-Violent Resistance And Armed Rebellion Co-Exist?, Ahmed Souaiaia
Ahmed E SOUAIAIA
Social Change in Arab Societies
The Nyse As State Actor?: Rational Actors, Behavioral Insights & Joint Investigations, Steven Cleveland
The Nyse As State Actor?: Rational Actors, Behavioral Insights & Joint Investigations, Steven Cleveland
Steven J. Cleveland
No abstract provided.
The Biological Basis For The Recognition Of The Family, Scott Fitzgibbon
The Biological Basis For The Recognition Of The Family, Scott Fitzgibbon
Scott T. FitzGibbon
The family is matter of heart and blood. It is created, in part, by physical and emotional intimacy. It projects itself through history through its biological dimension. Any reasonable definition of the family must recognize this fundamental characteristic. “Biological dimension” here refers, not only to genetic affinities, important as those may be, but to all physical connections and to all matters closely related to the physical. Thus, it includes all the activities and dispositions which, generation after generation, bring a family together in the great procreative project: the begetting and rearing of children. The biological dimension includes making love and …
Fact Therapy: Review Of William J. Stunz's The Collapse Of American Justice, Paulo Barrozo
Fact Therapy: Review Of William J. Stunz's The Collapse Of American Justice, Paulo Barrozo
Paulo Barrozo
Book review of "The Collapse of American Criminal Justice" by William J. Stuntz.
Islamists Bring Religion Down To Earth: The End Of Religious Idealism, Ahmed Souaiaia
Islamists Bring Religion Down To Earth: The End Of Religious Idealism, Ahmed Souaiaia
Ahmed E SOUAIAIA
No abstract provided.
Jurisprudential Jujutsu, Joshua Davis
Jurisprudential Jujutsu, Joshua Davis
Joshua P. Davis
Jules Coleman’s article, “The Architecture of Jurisprudence,” 121 YALE L.J. 2 (2011), seeks to adapt legal positivism to accommodate a greater degree of normativity than conventional wisdom would allow. One might describe his effort to preserve positivism by yielding as a form of jurisprudential jujutsu. This response argues that Coleman’s jujutsu, at least as he has developed it thus far, fails to the extent law has moral legitimacy.
Respectable Queerness, Yuvraj Joshi
Respectable Queerness, Yuvraj Joshi
Yuvraj Joshi
This Article proposes a new theoretical framework to understand public recognition of gay people and relationships. This framework—called “respectable queerness”—suggests that public recognition of gay people and relationships is contingent upon their acquiring a respectable social identity that is actually constituted by public performances of respectability and by privately queer practices. The challenges posed by such recognition include dissonance between one’s public and private selves and fuelling moralism and entrenching divisions between different queer constituencies.
The Gulf Cooperative Council And The Arab Spring, Ahmed Souaiaia
The Gulf Cooperative Council And The Arab Spring, Ahmed Souaiaia
Ahmed E SOUAIAIA
No abstract provided.
Apathy In The Face Of Cruelty, Ahmed Souaiaia
Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory Keating
Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory Keating
Gregory C. Keating
Early in the 1970's George Fletcher wrote a remarkable article Fairness and Utility in Tort Theory—connecting distinctively Rawlsian ideas of fairness with reciprocity of risk imposition. Fletcher argued that nonreciprocity of risk both characterized realms of strict liability in tort and justified those realms, whereas reciprocity of risk characterized realms of tort law which were governed by negligence liability, and appropriately so. This article argues (1) against Fletcher’s identification of fairness in the choice of an accident law regime with the presence or absence of reciprocity of risk, and (2) in favor of focusing on the fair distribution of the …
Poverty As An Everday State Of Exception, Julie Nice
Poverty As An Everday State Of Exception, Julie Nice
Julie A. Nice
This essay applies the provocative theory of Italian philosopher Giorgio Agamben to Poverty Law. It is forthcoming as a book chapter in a multidisciplinary volume of papers exploring the relations between accumulation and insecurity. Professor Nice distills Agamben's theory of the state of exception, that the dominant paradigm of modern democracy is founded on the state's power to exclude from rights those who are otherwise included within the political order. Professor Nice posits that the state's abandonment of poor people exemplifies an everyday example of the state of exception. She illustrates how poor people lack meaningful constitutional protection, legal entitlement, …
Parent, Child, Husband, Wife: When Recognition Fails, Tragedy Ensues, Scott Fitzgibbon
Parent, Child, Husband, Wife: When Recognition Fails, Tragedy Ensues, Scott Fitzgibbon
Scott T. FitzGibbon
This article briefly notes some developments in the law and society of our present age regarding the understanding — the recognition — of marriage, fatherhood, motherhood, and the family. The article warns against a certain casualness, a confusion, perhaps even a certain promiscuity of thought, that has occasionally emerged in the law. Drawing on Sophocles' drama Oedipus the King and on the scriptural narrative of David and Bathsheba, the article investigates what might be called the "moral location" of the activity of recognition. It proposes that recognition of basic family forms is a process with a deep dimension. It apprehends …
The Case For Repeal Of India's Sodomy Law, Yuvraj Joshi
The Case For Repeal Of India's Sodomy Law, Yuvraj Joshi
Yuvraj Joshi
This Article surveys some of the arguments for and against the repeal of India’s sodomy law. The first part analyses s.377 of the Indian Penal Code and considers its consequences for India's gay, lesbian, bisexual, transsexual, hijra and kothi persons. The second part provides an overview of the various theoretical and political positions taken in the sodomy law debate. The third part examines the rights-based arguments that have been made in support of repealing or reading down s.377, and the feminist and queer critiques of these arguments. The fourth part considers the arguments against the repeal that have been put …
Concurring In Part & Concurring In The Confusion, Sonja West
Concurring In Part & Concurring In The Confusion, Sonja West
Sonja R. West
When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege--Branzburg v. Hayes. "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel on the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand the arguments …
Visionary Pragmatism And The Value Of Privacy In The Twenty-First Century, Danielle Citron, Leslie Henry
Visionary Pragmatism And The Value Of Privacy In The Twenty-First Century, Danielle Citron, Leslie Henry
Leslie Meltzer Henry
Despite extensive scholarly, legislative, and judicial attention to privacy, our understanding of privacy and the interests it protects remains inadequate. At the crux of this problem is privacy’s protean nature: it means “so many different things to so many different people” that attempts to articulate just what it is, or why it is important, generally have failed or become unwieldy. As a result, important privacy problems remain unaddressed, often to society’s detriment. In his newest book, Understanding Privacy, Daniel J. Solove aims to reverse this state of affairs with a pluralistic conception of privacy that recognizes the societal value of …
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David Gray
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David Gray
David C. Gray
The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …