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Articles 1 - 30 of 52
Full-Text Articles in Law
Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner
Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner
Journal Articles
In recent years, perhaps no institution of American governance has been so thoroughly and consistently excoriated by legal theorists as the familiar American system of winner-take-all elections. The winner-take-all system is said to waste votes, lead to majority monopolization of political power, and cause the under representation and consequent social and economic subordination of political minorities. Some political scientists have attempted to defend winner-take-all systems on the ground that they perform better than PR in maximizing long-term collective and social interests. This article argues, in contrast, that winner-take-all electoral systems rest upon, and can be adequately defended, if at all, …
Felony Murder And Mens Rea Default Rules: A Study In Statutory Interpretation, Guyora Binder
Felony Murder And Mens Rea Default Rules: A Study In Statutory Interpretation, Guyora Binder
Journal Articles
The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the …
Can Party Politics Be Virtuous?, James A. Gardner
Can Party Politics Be Virtuous?, James A. Gardner
Journal Articles
No abstract provided.
From Nuremberg To The Rwanda Tribunal: Justice Or Retribution?, Makau Mutua
From Nuremberg To The Rwanda Tribunal: Justice Or Retribution?, Makau Mutua
Journal Articles
No abstract provided.
Incorporation Of "Private" Environmental Certification Systems In Formal Legal Systems: The U.S. Case., Errol E. Meidinger
Incorporation Of "Private" Environmental Certification Systems In Formal Legal Systems: The U.S. Case., Errol E. Meidinger
Journal Articles
No abstract provided.
Whose Team Am I On Anyway - Musings Of A Public Defender About Drug Treatment Court Practice, Mae C. Quinn
Whose Team Am I On Anyway - Musings Of A Public Defender About Drug Treatment Court Practice, Mae C. Quinn
Journal Articles
No abstract provided.
Inverting The Viability Test For Abortion Law, Bruce Ching
Inverting The Viability Test For Abortion Law, Bruce Ching
Journal Articles
The abortion controversy is likely to become even more pressing with the development of technological advancements that enhance the chances for fetal survival of the abortion procedure. This essay explores the consequences of recognizing that keeping the fetus alive does not depend on keeping the fetus in utero.
Casting Light On Cultural Property (Book Review), John Costonis
Casting Light On Cultural Property (Book Review), John Costonis
Journal Articles
No abstract provided.
Private Problem, Public Solution: Affirmative Action In The 21st Century, Darlene Goring
Private Problem, Public Solution: Affirmative Action In The 21st Century, Darlene Goring
Journal Articles
No abstract provided.
The Wasted Sacrifice Of Lessors' Lost Profit Claims In Bankruptcy, Marie T. Reilly
The Wasted Sacrifice Of Lessors' Lost Profit Claims In Bankruptcy, Marie T. Reilly
Journal Articles
Bankruptcy Code section 502(b)(6) sets the maximum allowable amount of a real property lessor's claim for damages arising for breach of lease in a tenant's bankruptcy case. To the extent a lessor's damages claim under nonbankruptcy law exceeds the maximum amount, it is disallowed. The implicit premise for such disallowance is that real property lessors' damages claims are less worthy of respect in bankruptcy than other claims for damages against the debtor. Real property leases are legally distinct from leases of personal property or other contractual relationships that allocate property rights. But, it does not obviously follow from the distinction …
Aren't You Latino: Building Bridges Upon Common Misperceptions, Victor C. Romero
Aren't You Latino: Building Bridges Upon Common Misperceptions, Victor C. Romero
Journal Articles
This article addresses minority on minority oppression and itragroup animosity. The author discusses ways in which communities of color can use common misperceptions to their advantage as a bridge to building a larger community.
The Domestic Fourth Amendment Rights Of Undocumented Immigrants: On Guitterez And The Tort Law/Immigration Law Parallel, Victor C. Romero
The Domestic Fourth Amendment Rights Of Undocumented Immigrants: On Guitterez And The Tort Law/Immigration Law Parallel, Victor C. Romero
Journal Articles
This Article is composed of three parts. Part I examines the problems raised by the Gutierrez I regime, including the collapse of the protective constitutional floor of immigrants' rights portended by that decision. Part II contends that the current plenary power approach to immigration and immigrants' rights issues would likely support, rather than dismantle, the Gutierrez I approach to undocumented immigrants' Fourth Amendment rights. Part III provides an alternative to the plenary power regime by drawing a parallel between domestic tort law for premises liability and immigrants' rights law. This part concludes by showing that Rowland and its progeny could …
Introduction To The Articles Presented By Three Rising Stars In Bankruptcy Scholarship, Samuel Bufford
Introduction To The Articles Presented By Three Rising Stars In Bankruptcy Scholarship, Samuel Bufford
Journal Articles
Bankruptcy law is one of the fundamental legal structures necessary to the functioning of a market economy. In the common law tradition of the United States and England, bankruptcy law dates back to 1542. Bankruptcy law's origins are even more ancient, with roots extending back to at least the Hammaurabi Code and the Law of Moses. In the transition to market economies and Western-style legal systems in Central and Eastern Europe, the development of a viable bankruptcy law is one of the first priorities. This, the United States bankruptcy law that forms the background for this symposium is central to …
Statutory Interpretation In The Courtroom, The Classroom, And Canadian Legal Literature, Stephen F. Ross
Statutory Interpretation In The Courtroom, The Classroom, And Canadian Legal Literature, Stephen F. Ross
Journal Articles
In recent years, judges and scholars in Canada and the United States are devoting more attention to the theory and techniques involved in statutory interpretation. Although some advocate "foundational" theories to answer all theories of interpretation, most difficult cases require a pragmatic approach that requires analysis of the statutory text, original legislative intent, and legislative purpose in light of modern circumstances. Moreover, the most difficult cases may not be answerable by any of these approaches. In difficult cases, judges often resort to "normative canons" - rules they created to further a jurisprudence they desire. These canons need to be closely …
How Good Is Good Enough?: Expert Evidence Under Daubert And Kuhmo, David H. Kaye, David L. Faigman, Michael J. Saks, Joseph Sanders
How Good Is Good Enough?: Expert Evidence Under Daubert And Kuhmo, David H. Kaye, David L. Faigman, Michael J. Saks, Joseph Sanders
Journal Articles
This essay is a response to Professor Edward Imwinkelried's article, "Should the Courts Incorporate a Best Evidence Rule into the Standard Determining the Admissibility of Scientific Testimony?: Enough is Enough When it is not the Best." The authors have two basic points. First, the authors wish to make it clear that they never proposed the "best evidence rule" that he so vigorously attacks, and they think his suggestion that they did so is strained. Second, they wish to reiterate that courts sometimes should do more than they have to ensure that expert testimony is reasonably sound. The important debate underway …
South African Perspectives: Its Prospects And Its Income Tax System, Samuel C. Thompson Jr.
South African Perspectives: Its Prospects And Its Income Tax System, Samuel C. Thompson Jr.
Journal Articles
No abstract provided.
Five Years After Beijing: A Report Card On Women’S Human Rights, Athena D. Mutua
Five Years After Beijing: A Report Card On Women’S Human Rights, Athena D. Mutua
Journal Articles
No abstract provided.
The Proliferation Of International Courts And Tribunals: International Adjudication In Ascendance, Roger P. Alford
The Proliferation Of International Courts And Tribunals: International Adjudication In Ascendance, Roger P. Alford
Journal Articles
While there has been a significant focus on a few international tribunals, there have been insufficient efforts to compare and contrast the various courts and tribunals. Even a cursory comparison of these tribunals reveals that there are many unanswered questions regarding the interrelationship of these courts and tribunals and, more disturbing, a profound lack of attention to the collective impact these international tribunals are having on the field of international law. That is changing, as is evidenced by the new Project on International Courts and Tribunals at New York University School of Law, but we as an international legal community …
Catholic Health Care And The Diocesan Bishop, John J. Coughlin
Catholic Health Care And The Diocesan Bishop, John J. Coughlin
Journal Articles
Over the course of the last decade, the provision of health care in the United States has been undergoing a radical transformation. The days when an insurer, such as Blue Cross and Blue Shield, paid a standard fee to a physician who provided a specified service to an individual patient are passing rapidly. This fee-for-service concept, which characterized American health care from the end of World War II until the 1990s, is being supplanted by a variety of arrangements that fall under the general rubric of "managed care." The fundamental approach of managed care is to provide the patient with …
A Comparative Constitutional Law Canon, Donald P. Kommers, John E. Finn
A Comparative Constitutional Law Canon, Donald P. Kommers, John E. Finn
Journal Articles
The article discusses what types of legal cases constitute a “canon” on American constitutional theory and comparative constitutional law, examples of case law that illustrate important developments in the two subjects. It describes the process taken by the article's authors to select a small sampling of 90 “canon” cases for their course book on American constitutional law, which is designed for the academic community and for undergraduate students enrolled in a traditional liberal arts curriculum.
On The Incoherence Of Legal Positivism, John M. Finnis
On The Incoherence Of Legal Positivism, John M. Finnis
Journal Articles
Legal positivism is an incoherent intellectual enterprise. It sets itself an explanatory task which it makes itself incapable of carrying through. In the result it offers its students purported and invalid derivations of ought from is.
In this brief Essay I note various features of legal positivism and its history, before trying to identify this incoherence at its heart. I do not mean to renege on my belief that reflections on law and legal theory are best carried forward without reference to unstable and parasitic academic categories, or labels, such as "positivism" (or "liberalism" or "conservatism," etc.). I use the …
A Dialogic Defense Of Alden, Jay Tidmarsh
A Dialogic Defense Of Alden, Jay Tidmarsh
Journal Articles
The opening paragraphs of the essay:
I find myself in the odd position of arguing that Alden v. Maine' is right, or at least not wrong. Do not misunderstand-I do not like the result in Alden any more than the next guy. But to not like the result and to argue that Alden is wrong as a matter of constitutional principle are two different matters. I am willing to argue that Alden is consistent with, albeit not compelled by, constitutional principle.
Implicit in the last sentence is the assumption that, had Alden been decided in accordance with Justice Souter's rather …
More's Skill, Thomas L. Shaffer
More's Skill, Thomas L. Shaffer
Journal Articles
Robert Bolt chose a phrase from a sixteenth century poet named Robert Whittinton for the title of his modem play about Thomas More: "[A] man of an angel's wit and singular learning; I know not his fellow. For where is the man of that gentleness, lowliness, and affability? And as time requireth a man of marvellous mirth and pastimes; and sometimes of as sad gravity: a man for all seasons."
Bolt's title suggests that he took a gamble on the possibility that More would have modern, universal appeal. I have been interested in how that gamble worked out. If you …
Government Lawyers, Robert E. Rodes
Government Lawyers, Robert E. Rodes
Journal Articles
I am grateful to Professor Lee for the opportunity to comment on this fine set of papers regarding the ethical obligations of government lawyers. These papers shed light on many interesting aspects of serving the government. Professors Shaffer and Lee explore the peculiar challenges to integrity that a lawyer experiences when he has a client who can chop his head off. The challenges are less today, but a lawyer with large student loans to pay may not realize that they are. Professor Hazard points out that government lawyers are government employees with the responsibilities that government employment entails. Professor Green …
Choosing The Lesser Evil: Comments On Besharov's "Child Abuse Realities", Margaret F. Brinig
Choosing The Lesser Evil: Comments On Besharov's "Child Abuse Realities", Margaret F. Brinig
Journal Articles
Determining the degree of state intervention into intra-family decision making requires an unhappy choice between allowing abuse to continue or interfering with some families that would be better left alone. Mr. Besharov introduces the possible harms associated with the increased involvement of the state but fails to fully comprehend the circumstances that necessitate such involvement. Evils bracket the phenomenon discussed in Mr. Besharov's paper and this one. The difference in our approach lies in the choice we think is the lesser evil of the two, not that we think that either the harms associated with state involvement or the risk …
School Choice, The First Amendment, And Social Justice, Nicole Stelle Garnett, Richard W. Garnett
School Choice, The First Amendment, And Social Justice, Nicole Stelle Garnett, Richard W. Garnett
Journal Articles
This Article is intended to be a primer on the legality and morality of educational choice—"School Choice in a Nutshell," if you will. We are resigned to being pre-empted by the tireless work of grassroots activists, the choices of voters, and the decisions of judges. Still, we hope, in somewhat polemical fashion, to establish two basic claims. First, school choice, properly understood, is constitutional. And second, school choice is both sensible and just.
In the end, we believe "school choice . . . is essential to achieving equality of opportunity for American children, rich or poor. School choice treats the …
International Perspective, Douglass Cassel
International Perspective, Douglass Cassel
Journal Articles
I don't think it's accurate to say this panel has six experts on incarceration. I think we really have five experts and one dilettante. I know a bit about international human rights law. I am not an expert on prisons and I am overwhelmed by the expertise and the statistics that we've just received and about which I hope to learn a great deal more. So I apologize to you in advance for supplying nothing more than impressions of the international realities of incarceration. I will then skip quickly ahead to the law.
What O'Clock I Say: Juridical Epistemics And The Magisterium Of The Church, Robert E. Rodes
What O'Clock I Say: Juridical Epistemics And The Magisterium Of The Church, Robert E. Rodes
Journal Articles
Legal pronouncements to the effect that such and such is the case can be divided into three categories, which the paper calls normative, constitutive, and epistemic. The paper defines these three legal categories, explores examples of each of in the law of the state, and then examines church pronouncements under the same categories to see what light the analogy of secular law can shed on them. The Church's assertions of authority regarding faith and morals are epistemic in nature. Epistemic pronouncements by authority, whether in Church or state, are binding on anyone who is not better informed than the author, …
Law And Theology: Reflections On What It Means To Be Human From A Franciscan Perspective, John J. Coughlin
Law And Theology: Reflections On What It Means To Be Human From A Franciscan Perspective, John J. Coughlin
Journal Articles
When I was first asked in March of 2000 to speak at this conference on the topic of "law and theology," many thoughts crossed my mind. I could address: the role of religion in American political life, euthanasia, medieval canon law and theology, the death penalty, the Jewish origins of the Pauline perspective on law, the ethics of DNA experimentation, Muslim theology and law, the relation between Marxist political theory and Christian eschatology, or several other "light" issues. Upon second thought, perhaps a more straight-forward approach would be beneficial. I might review the plan of salvation history, and then as …
The Basic Law: A Fifty Year Assessment, Donald P. Kommers
The Basic Law: A Fifty Year Assessment, Donald P. Kommers
Journal Articles
In 1949 the new German Basic Law raised many questions. Could a newly minted constitution-mere words on paper-breathe new life into a people devastated by war? Would it serve as a stable framework of government? Would it promote respect for human rights and popular government? Would it foster internal political unity? Half a century later all these questions can be answered in the affirmative. The Basic Law is one of the world’s most respected and imitated constitutions and it has emerged as the vital center of Germany's constitutional culture. It is invoked repeatedly in parliamentary debates and resorted to in …