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Full-Text Articles in Law

Zone Of Nondeference: Chevron And Deportation For A Crime, Rebecca Sharpless Jan 2017

Zone Of Nondeference: Chevron And Deportation For A Crime, Rebecca Sharpless

Articles

No abstract provided.


Finally, A True Elements Test: Mathis V.United States And The Categorical Approach, Rebecca Sharpless Jan 2017

Finally, A True Elements Test: Mathis V.United States And The Categorical Approach, Rebecca Sharpless

Articles

No abstract provided.


Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton Jan 2016

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Articles

No abstract provided.


Structuralist Legal Histories, Justin Desautels-Stein Jan 2015

Structuralist Legal Histories, Justin Desautels-Stein

Articles

This is a contribution to a symposium titled "Theorizing Contemporary Legal Thought." The central theme of the piece is the relation between legal structuralism and legal historiography.


A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux Jan 2015

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Articles

No abstract provided.


Foreword: Theorizing Contemporary Legal Thought, Justin Desautels-Stein, Duncan Kennedy Jan 2015

Foreword: Theorizing Contemporary Legal Thought, Justin Desautels-Stein, Duncan Kennedy

Articles

This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.


The Judge And The Drone, Justin Desautels-Stein Jan 2014

The Judge And The Drone, Justin Desautels-Stein

Articles

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the ...


A Structuralist Approach To The Two State Action Doctrines, Justin Desautels-Stein Jan 2013

A Structuralist Approach To The Two State Action Doctrines, Justin Desautels-Stein

Articles

By all accounts, the constitutional and antitrust state-action doctrines are strangers. Courts and scholars see the constitutional state-action doctrine as about the applicability of constitutional rights in private disputes, and the antitrust state-action doctrine as a judicial negotiation between the scope of the Sherman Act and the demands of federalism. In this conventional view, the only thing the doctrines share in common is that they are both an awful mess. This Article challenges the conventional wisdom and argues that the two state-action doctrines are fundamentally connected, and when viewed in a certain light, not even that messy. It is not ...


The Market As A Legal Concept, Justin Desautels-Stein Jan 2012

The Market As A Legal Concept, Justin Desautels-Stein

Articles

In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the commentary remains wedded to an old and entirely false image of “free competition.” Of course, there is hardly consensus about whether markets require the heavy hand of regulative control, or are better left to regulate themselves, but a belief in the distinction between these two images ...


Race As A Legal Concept, Justin Desautels-Stein Jan 2012

Race As A Legal Concept, Justin Desautels-Stein

Articles

Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little ...


Efficient Uncertainty In Patent Interpretation, Harry Surden Jan 2011

Efficient Uncertainty In Patent Interpretation, Harry Surden

Articles

Research suggests that widespread uncertainty over the scopes of issued patents creates significant costs for third-party firms and may decrease innovation. This Article addresses the scope uncertainty issue from a theoretical perspective by creating a model of patent claim scope uncertainty.

It is often difficult for third parties to determine the legal coverage of issued patents. Scope underdetermination exists when the words of a patent claim are capable of a broad range of plausible scopes ex ante in light of the procedures for interpreting patents. Underdetermination creates uncertainty about claim coverage because a lay interpreter cannot know which interpretation will ...


Formalism And Realism In Ruins (Mapping The Logics Of Collapse), Pierre Schlag Jan 2009

Formalism And Realism In Ruins (Mapping The Logics Of Collapse), Pierre Schlag

Articles

After laying out a conventional account of the formalism vs. realism debates, this Article argues that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented--that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law's empire. We live thus amidst the ruins of formalism and realism. The disputes between these two great determinations of American law continue today, but usually in more localized or circumscribed forms. We ...


Spam Jurisprudence, Air Law, And The Rank Anxiety Of Nothing Happening (A Report On The State Of The Art), Pierre Schlag Jan 2009

Spam Jurisprudence, Air Law, And The Rank Anxiety Of Nothing Happening (A Report On The State Of The Art), Pierre Schlag

Articles

In 1969, I saw The Endless Summer. It was a surfer movie about two guys (Robert and Mike) who traveled the world in search of the perfect wave. High art -- it was not. Plus the plot was thin. And it's for sure, there weren't enough girls. But there was one line which, for my generation, will go down as one of the all-time great movie lines ever. And always it was a line delivered by some local to Robert and Mike, the surfer dudes, as they arrived on the scene of yet another dispiritingly becalmed ocean. And every ...


Extraterritoriality, Antitrust, And The Pragmatist Style, Justin Desautels-Stein Jan 2008

Extraterritoriality, Antitrust, And The Pragmatist Style, Justin Desautels-Stein

Articles

In the last decades of the 20th century, David Kennedy and Martti Koskenniemi made the case that the modern structure of international legal argument was characterized by "pragmatism." Taking this idea as its baseline, this Article's central argument is that legal pragmatism embodies a dominant style of contemporary legal reasoning, and that as Kennedy and Koskenniemi might have suggested, it is on display in some of the canonical antitrust decisions having an international dimension. The Article also seeks to show that pragmatism's ostensible triumph is best understood as a contest of three distinctly legal pragmatisms: "eclectic pragmatism," as ...


At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein Jan 2007

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

Articles

This Article has two primary goals. The first is descriptive and seeks to respond to what appears to be an increasing degree of confusion over the word "pragmatism," especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called "everyday" pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the Article is subsequently concerned with exploring this last category ...


The Incompatibility Principle, Harold H. Bruff Jan 2007

The Incompatibility Principle, Harold H. Bruff

Articles

No abstract provided.


The Anxiety Of The Law Student At The Socratic Impasse - An Essay On Reductionism In Legal Education, Pierre Schlag Jan 2007

The Anxiety Of The Law Student At The Socratic Impasse - An Essay On Reductionism In Legal Education, Pierre Schlag

Articles

No abstract provided.


Second Annual Culp Latcrit Lecture The Constitution Of Terror: Big Lies, Backlash Jurisprudence, And The Rule Of Law In The United States Today, Francisco Valdes Jan 2007

Second Annual Culp Latcrit Lecture The Constitution Of Terror: Big Lies, Backlash Jurisprudence, And The Rule Of Law In The United States Today, Francisco Valdes

Articles

No abstract provided.


Three Versions Of Nonsense, Paul Campos Jan 2006

Three Versions Of Nonsense, Paul Campos

Articles

No abstract provided.


Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman Jan 2005

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Articles

No abstract provided.


Divergent Discourses About International Law, Indigenous Peoples, And Rights Over Lands And Natural Resources: Toward A Realist Trend, S. James Anaya Jan 2005

Divergent Discourses About International Law, Indigenous Peoples, And Rights Over Lands And Natural Resources: Toward A Realist Trend, S. James Anaya

Articles

In this article renowned scholar S. James Anaya analyzes the divergent assessments of international law's treatment of indigenous peoples' demands to lands and natural resources. The author explores several strains of arguments that have been advanced within this debate, including state-centered arguments and human rights-based arguments. The author also examines the shortcomings of recurring interpretive approaches to international law that consider indigenous peoples' rights to land and resources. From this analysis the author identifies a more promising approach within the human rights framework--which he describes as a realist approach--that focuses on the confluence of values, power, and change. The ...


A Brief Survey Of Deconstruction, Pierre Schlag Jan 2005

A Brief Survey Of Deconstruction, Pierre Schlag

Articles

No abstract provided.


Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber Jan 2004

Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber

Articles

Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and ...


My Dinner At Langdell's, Pierre Schlag Jan 2004

My Dinner At Langdell's, Pierre Schlag

Articles

This essay begins on one of those cold wet April Cambridge mornings. It was too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse - the laudanum was wearing off. Tonight would be dinner at Langdell's. It occurred to me that not everyone is invited to Langdell's for dinner - certainly not wayward law professors from the provinces. This was an extraordinary opportunity. Blackstone would be there. Duncan Kennedy perhaps. Certainly the early Llewellyn. I knocked on the door.


Marbury V. Madison And Modern Judicial Review, Robert F. Nagel Jan 2003

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Articles

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence ...


Justice White And Judicial Review, Philip J. Weiser Jan 2003

Justice White And Judicial Review, Philip J. Weiser

Articles

No abstract provided.


Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel Jan 2003

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Articles

No abstract provided.


A Reply--The Missing Portion, Pierre Schlag Jan 2003

A Reply--The Missing Portion, Pierre Schlag

Articles

No abstract provided.


Western Justice, Richard B. Collins Jan 2003

Western Justice, Richard B. Collins

Articles

No abstract provided.


The Aesthetics Of American Law, Pierre Schlag Jan 2002

The Aesthetics Of American Law, Pierre Schlag

Articles

Before the ethical dreams and political ambitions of law can even be articulated, let alone realized, the aesthetics of law have already shaped the medium within which those projects will have to do their work. This work attempts to retrieve and expose those recurrent forms that shape the creation, apprehension, and identity of law. What is at stake is an attempt to reveal the aesthetics within which American law is cast. The point is not simply to appreciate these aesthetics, but to understand how "substantive" conflicts in law are often motivated, sustained and circumscribed by the aesthetics through which they ...