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Full-Text Articles in Law

Irreconcilable Differences? Whole Woman’S Health, Gonzales, And Justice Kennedy’S Vision Of American Abortion Jurisprudence, O. Carter Snead, Laura Wolk Jan 2018

Irreconcilable Differences? Whole Woman’S Health, Gonzales, And Justice Kennedy’S Vision Of American Abortion Jurisprudence, O. Carter Snead, Laura Wolk

Journal Articles

A law is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."' Twenty-five years have elapsed since a plurality of the Supreme Court articulated this undue burden standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, yet its contours remain elusive. Notably, two current members of the Court-Justice Breyer and Justice Kennedy-seem to fundamentally differ in their understanding of what Casey requires and permits. In Gonzales v. Carhart, Justice Kennedy emphasized a wide range of permissible state interests implicated by abortion and indicated ...


There Are No Ordinary People: Christian Humanism And Christian Legal Thought, Richard W. Garnett Nov 2017

There Are No Ordinary People: Christian Humanism And Christian Legal Thought, Richard W. Garnett

Journal Articles

This short essay is a contribution to a volume celebrating a new casebook, "Christian Legal Thought: Materials and Cases", edited by Profs. Patrick McKinley Brennan and William S. Brewbaker.


A Humble Justice, Marah S. Mcleod Jan 2017

A Humble Justice, Marah S. Mcleod

Journal Articles

Media and scholarly critics often claim that Justice Thomas's criminal law opinions reflect intentional cruelty or callousness, and dismiss his opinions without engaging seriously with their substance.
This Essay contends that judicial humility is a far more plausible explanation for Justice Thomas's criminal case decisions. If observers recognize that his approach to the law is guided by humility, rather than his own cruel or callous views, they will be more likely to consider the substance of his opinions and will benefit from wrestling with his challenging jurisprudential and historical perspective - even if they do not agree with the ...


Neoclassical Administrative Common Law, Jeffrey A. Pojanowski Sep 2016

Neoclassical Administrative Common Law, Jeffrey A. Pojanowski

Journal Articles

This essay reviews John Dickinson’s neglected classic, Administrative Justice and the Supremacy of Law in the United States. Writing on the cusp of the New Deal, Dickinson helped establish a mainstream, moderate stance about the shape and legitimacy of the administrative state. A closer reading of this work, which is rich in jurisprudential reflection and historical learning, offers a better idea about the structure, promise, and limits of the doctrinal world he helped create.


Redrawing The Dividing Lines Between Natural Law And Positivism(S), Jeffrey Pojanowski May 2015

Redrawing The Dividing Lines Between Natural Law And Positivism(S), Jeffrey Pojanowski

Journal Articles

Anglo-American jurisprudence, before it insulated itself in conceptual analysis and defined itself in opposition to broader questions, was properly a “sociable science,” to use Professor Postema’s phrase from his symposium article. And, in part due to the exemplars of history, so it may become again. By drawing on Bentham and Hobbes, Professor Dan Priel’s Toward Classical Positivism points forward toward more fruitful methods of jurisprudence while illuminating the recent history and current state of inquiry. His article demonstrates the virtues and promise of a more catholic approach to jurisprudence. It also raises challenging questions about the direction to ...


Private Law In The Gaps, Jeffrey A. Pojanowski Jan 2014

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a ...


What Is The Philosophy Of Law?, John Finnis Jan 2014

What Is The Philosophy Of Law?, John Finnis

Journal Articles

The philosophy of law is not separate from but dependent upon ethics and political philosophy, which it extends by that attention to the past (of sources, constitutions, contracts, acquired rights, etc.) which is characteristic of juridical thought for reasons articulated by the philosophy of law. Positivism is legitimate only as a thesis of, or topic within, natural law theory, which adequately incorporates it but remains transparently engaged with the ethical and political issues and challenges both perennial and peculiar to this age. The paper concludes by proposing a task for legal philosophy, in light of the fact that legal systems ...


Memory And Punishment, O. Carter Snead Jan 2011

Memory And Punishment, O. Carter Snead

Journal Articles

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, and ...


Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead Jan 2010

Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead

Journal Articles

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square.

This Article examines the question of how scientific methods and principles can ...


Stare Decisis As Judicial Doctrine, Randy J. Kozel Jan 2010

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Journal Articles

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely ...


The Evangelical Debate Over Climate Change, John Copeland Nagle Jan 2008

The Evangelical Debate Over Climate Change, John Copeland Nagle

Journal Articles

In 2006, a group of prominent evangelicals issued a statement calling for a greater response to climate change. Soon thereafter, another group of prominent evangelicals responded with their own statement urging caution before taking any action against climate change. This division among evangelicals concerning climate change may be surprising for a community that is usually portrayed as homogenous and as indifferent or hostile toward environmental regulation. Yet there is an ongoing debate among evangelicals regarding the severity of climate change, its causes, and the appropriate response. Why? The answer to this question is important because of the increasing prominence of ...


Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead Jan 2007

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

Journal Articles

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over ...


On Professors And Poor People - A Jurisprudential Memoir, Robert E. Rodes Jan 2007

On Professors And Poor People - A Jurisprudential Memoir, Robert E. Rodes

Journal Articles

This article describes the origin and sources of the author's jurisprudential doctrine, and his adoption of liberation theology as a way of reconciling Sociological Jurisprudence with the philosophy of history. It argues that the pursuit of justice is eschatologically validated even though its historical fruition is problematical. It goes on to discuss the working out in legal practice of the liberationists' call for a preferential option for the poor.


On The Historical School Of Jurisprudence, Robert E. Rodes Jan 2004

On The Historical School Of Jurisprudence, Robert E. Rodes

Journal Articles

Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as ...


Lawyers As Prophets, Thomas L. Shaffer Jan 2003

Lawyers As Prophets, Thomas L. Shaffer

Journal Articles

No abstract provided.


Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer Jan 2001

Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer

Journal Articles

No abstract provided.


Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman Jan 2000

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Journal Articles

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly ...


The Christian Jurisprudence Of Robert E. Rodes Jr., Thomas L. Shaffer Jan 1998

The Christian Jurisprudence Of Robert E. Rodes Jr., Thomas L. Shaffer

Journal Articles

No abstract provided.


The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer Jan 1998

The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer

Journal Articles

No abstract provided.


Whitehead's Metaphysics And The Law: A Dialogue, Jay Tidmarsh Jan 1998

Whitehead's Metaphysics And The Law: A Dialogue, Jay Tidmarsh

Journal Articles

No abstract provided.


Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes Jan 1997

Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes

Journal Articles

This paper analyzes particular passages in Holmes's famous lecture, and notes important inconsistencies and failings in his approach. After arguing strongly that moral considerations should not enter into legal judgments, he criticizes legal judgments in the light of moral considerations. After defining law as a prediction of what the courts will do, he seems to criticize courts for getting the law wrong in their decisions. His advice to learn the legal profession by studying law from the standpoint of a bad man leaves out of account the numerous potential clients who wish to be law abiding citizens and to ...


Pilgrim Law, Robert E. Rodes Jan 1994

Pilgrim Law, Robert E. Rodes

Journal Articles

No abstract provided.


Allocating Risks And Suffering: Some Hidden Traps, John M. Finnis Jan 1990

Allocating Risks And Suffering: Some Hidden Traps, John M. Finnis

Journal Articles

The economic analysis of which Adam Smith is a principal founder is helpful in practical reasoning about problems of justice precisely insofar as it systematically calls attention to the side-effects of individual choices and actions and behavior. Still, it would be a mistake to conclude that we need only a more adequate account of the benefits and burdens up for distribution or allocation by those responsible for the common good or general fate. We need also to bear in mind what Smith did not forget and what economics does not comprehend, the requirements of commutative justice. To see this, we ...


Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice Jan 1989

Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice

Journal Articles

No abstract provided.


On Reason And Authority In Law's Empire, John M. Finnis Jan 1987

On Reason And Authority In Law's Empire, John M. Finnis

Journal Articles

Law's Empire will shape jurisprudence by its admirably resourceful attention to understanding a community's law "internally". It promotes reflective understanding of the practical argumentation constitutive of the attitude(s) in which that law subsists. But the book neglects some of practical understanding's resources of political and moral theory, and overestimates practical reasoning's power to identify options as the best and the right)


The "Natural Law Tradition", John M. Finnis Jan 1986

The "Natural Law Tradition", John M. Finnis

Journal Articles

This "tradition of natural law theory" has three main features: First, critique and rejection of ethical scepticism, dogmatism and conventionalism; Second, clarification of the methodology of descriptive and explanatory social theories (e.g., political science, economics, jurisprudence .... ); Third, critique and rejection of aggregative conceptions of the right and the just (e.g., consequentialism, utilitarianism, wealth-maximization, "proportionalism"...).


Toward A Jurisprudence For The Law Office, Thomas L. Shaffer, Louis M. Brown Jan 1972

Toward A Jurisprudence For The Law Office, Thomas L. Shaffer, Louis M. Brown

Journal Articles

No abstract provided.


Politics And Jurisprudence In West Germany: State Financing Of Political Parties, Donald P. Kommers Jan 1971

Politics And Jurisprudence In West Germany: State Financing Of Political Parties, Donald P. Kommers

Journal Articles

The relationship between political parties and representative government has been an important consideration in the constitutional jurisprudence of the Federal Republic of Germany. The Federal Constitutional Court has gone further than any other constitutional tribunal in the West to promote a free and competitive party system, and the Court’s decisions affecting the status of parties under the Basic Law, especially those having to do with party finance, are a marvelous illustration of the interplay between politics and law. The Federal Constitutional Court’s decision in 1966 to invalidate a federal plan for subsidizing political parties is a good example ...


Developments In Judicial Jurisprudence, John M. Finnis Jan 1962

Developments In Judicial Jurisprudence, John M. Finnis

Journal Articles

The purpose of this Comment is to explore briefly the fundamentals of what Prof. H. L. A. Hart has called "the contribution offered by the judges to the jurisprudence of our day", and to indicate in outline the disparity between this contribution and those of the most recent academic writings.