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2000

Chicago-Kent College of Law

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Articles 1 - 30 of 117

Full-Text Articles in Law

The Principles Of Justice, In Symposium, Propter Honoris Respectum: John Finnis, Richard W. Wright Dec 2000

The Principles Of Justice, In Symposium, Propter Honoris Respectum: John Finnis, Richard W. Wright

All Faculty Scholarship

Many theorists claim that justice is a question-begging concept that has no inherent substantive content. They point to disagreements among justice theorists themselves about basic aspects of the justice theory, such as the nature of corrective justice and the distinction between it and distributive justice, as even further reason to dismiss the concept of justice or to fill it with their preferred theoretical content. Yet most persons perceive that the concept of justice is not an empty shell. Since ancient times it has been thought to encompass not merely a formal equality (treating like cases alike), but also a substantive ...


Foreword, Francis J. Mootz Iii Dec 2000

Foreword, Francis J. Mootz Iii

Chicago-Kent Law Review

No abstract provided.


Table Of Contents - Issue 2, Chicago-Kent Law Review Dec 2000

Table Of Contents - Issue 2, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.


Critical Hermeneutics: The Intertwining Of Explanation And Understanding As Exemplified In Legal Analysis, George H. Taylor Dec 2000

Critical Hermeneutics: The Intertwining Of Explanation And Understanding As Exemplified In Legal Analysis, George H. Taylor

Chicago-Kent Law Review

Understanding and explanation are often viewed as oppositional: understanding is considered a search for the meaning a text provides, while explanation employs a critical, analytic method that maintains a distance from the text it interrogates. This Article demonstrates that in legal interpretation, understanding and explanation are not opposed but inextricably interconnected. Drawing first on the work of Robert Bork and Justice Antonin Scalia, this Article shows how elements of critique are present even within forms of legal interpretation that seek to maintain fidelity to the "understanding" of authorial meaning. Second, it illuminates the converse, that theories drawn to methods of ...


Foucault And Gadamer: Like Apples And Oranges Passing In The Night, Gary Wickham Dec 2000

Foucault And Gadamer: Like Apples And Oranges Passing In The Night, Gary Wickham

Chicago-Kent Law Review

This Article explores some points of connection between Michel Foucault's "governmentality" approach and Hans-Georg Gadamer's hermeneutics and concludes that Gadamer's project does not easily mesh with the Foucaultian critique. Instead, this Article argues that Foucault's reading of Heidegger diverges significantly from Gadamer's, and that an attempt to link the philosophers through their common heritage is unavailing. In conclusion, this Article suggests that the divide between hermeneutics and critical theory (in a Foucaultian sense) cannot be bridged easily, despite the few vague family resemblances evident in the literature.


Amatory Jurisprudence And The Querelle Des Lois, Peter Goodrich Dec 2000

Amatory Jurisprudence And The Querelle Des Lois, Peter Goodrich

Chicago-Kent Law Review

Early common law, both Anglo-Saxon and Anglo-Norman, offered plaintiffs a choice between love and law. Lovedays were more frequent than lawdays, and love explicitly took precedence over formal law. The judgment of love took the form of agreement through amity rather than enmity, affect rather than agon or trial. Using the institution of lovedays as a starting point, Goodrich's Article goes on to trace a longer-term continental history of courts and judgments of love that spans over five centuries and plays out in poetry, theater, and literature as much as in any secular legal institution. Offering a synopsis of ...


Melting Into Air? Downsizing, Job Stability, And The Future Of Work, Sanford M. Jacoby Dec 2000

Melting Into Air? Downsizing, Job Stability, And The Future Of Work, Sanford M. Jacoby

Chicago-Kent Law Review

Contrary to popular belief, career-type employment practices remain the norm in the U.S. labor market, and employers continue to shoulder risks for employees. Evidence to support this claim is drawn from a variety of sources: data on tenure and mobility; analysis of new job creation and job quality; recent employer responses to labor-market tightness; and data on wage premiums, fringe benefits, and training. Yet employees are bearing more risk today, including risk of job loss and of compensation fluctuations. This is an important change from the past. Nevertheless, there are limits—economic, demographic, and political—to the risk-shifting process.


Borders Or Horizons? Gadamer And Habermas Revisited, Fred R. Dallmayr Dec 2000

Borders Or Horizons? Gadamer And Habermas Revisited, Fred R. Dallmayr

Chicago-Kent Law Review

In this Article, Dallmayr examines the status of borders and demarcations. Are borders markers of separation and exclusion, or are they more like hyphens or horizons indicating a correlation without sameness, a distinctness opening up to alterity? This Article investigates this question by returning to the -so-called "Gadamer-Habermas Debate." While Part I recapitulates some of Hans-Georg Gadamer's teachings, especially with reference to a "universal hermeneutics," Part II reviews some of Jürgen Habermas's critical rejoinders and initiatives aiming basically at a parceling of forms of human knowledge. In the concluding part, an effort is made to highlight the significance ...


Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin L. West Dec 2000

Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin L. West

Chicago-Kent Law Review

This Article examines the impact of the twenty-year-old "turn" toward interpretation in legal and constitutional scholarship. In part, because of the impact of Hans-Georg Gadamer's work, scores of critical legal scholars, including some of those writing for this Symposium, now think of adjudication and legal discourse generally as primarily interpretive, rather than economic or political or distinctively legal enterprises. This turn toward interpretation has opened the way for new insights and ways of thinking, but it has also come with costs. It has, for example, diverted attention from the ways in which constitutional law might be appropriately criticized by ...


So What? The Individual Right To The Ownership Of Firearms Under The Ninth Amendment, Robert E. Bodine Dec 2000

So What? The Individual Right To The Ownership Of Firearms Under The Ninth Amendment, Robert E. Bodine

Chicago-Kent Law Review

This Note argues that the Second Amendment to the United States Constitution fails to resolve the debate over the existence of a fundamental, individual right to keep and bear arms because the Ninth Amendment is in fact the proper source for that right. This Note performs a historical analysis of the creation of the Constitution, reviews the little Supreme Court precedent regarding the right, and then demonstrates how the Supreme Court has applied the Ninth Amendment in cases dealing with other issues. Bodine concludes that applying the Ninth Amendment in that same manner necessarily leads to an inference of a ...


The New Deal At Work, Peter Cappelli Dec 2000

The New Deal At Work, Peter Cappelli

Chicago-Kent Law Review

The traditional employment system with secure, lifetime jobs offering predictable advancement and stable pay has given way to a new, more open-ended arrangement that is continually being negotiated between employer and employee. Evidence is presented both about the factors driving this new relationship and the subsequent changes in labor market outcomes. Tighter labor markets have, perhaps temporarily, shifted power from employers to employees, leading to new problems for employers and fundamental challenges to traditional models for management. These developments also raise new challenges for society and in particular to the long-standing interest in protecting employees from some of the destructive ...


Law As Interpretation, Charles W. Collier Dec 2000

Law As Interpretation, Charles W. Collier

Chicago-Kent Law Review

This Article situates the field of law within the interpretive disciplines and analyzes a number of key legal issues as problems of interpretation. The discussion begins with some historically important interpretive paradigms and methodological metaphors in the natural sciences, the humanities, and the social sciences. Then, within the field of law, a common law narrative, a constitutional narrative, and a community-society paradigm are described and explicated as basic interpretive frameworks of legal decision making.


Work-In-Progress: Gadamer, Tradition, And The Common Law, Allan C. Hutchinson Dec 2000

Work-In-Progress: Gadamer, Tradition, And The Common Law, Allan C. Hutchinson

Chicago-Kent Law Review

In this Article, Hutchinson provides an account of the common law tradition of judging that draws upon Hans-Georg Gadamer's writings that advance the intellectual project of critical legal theory. Hutchinson contends that Gadamer's hermeneutics can be utilized to offer a more radical and transformative reading of the common law tradition and explores what it means to treat law seriously as a living rhetorical tradition. This Article explores Hutchinson's theory by concentrating on the recent U.S. Supreme Court physician-assisted suicide decision in Washington v. Glucksberg. This Article relies upon the notion of "work-in-progress" as a productive optic ...


Policing The "Wild West" World Of Internet Pharmacies, Kerry Toth Rost Dec 2000

Policing The "Wild West" World Of Internet Pharmacies, Kerry Toth Rost

Chicago-Kent Law Review

An Internet pharmacy sells medications through its Web site. Legitimate, law-abiding Internet pharmacies benefit modern healthcare in numerous ways; however, some Internet pharmacies conduct illegal and unsafe prescribing and dispensing practices that can endanger the health of the patients the pharmacy serves. Controversy exists over which regulatory body should govern the sale of prescription drugs over the Internet and how Internet pharmacies should be regulated. This Note contends that cooperation of state and federal regulatory agencies and careful updating and utilization of current regulatory avenues can adequately promote the safety of Internet pharmacies. This Note further contends that the dangers ...


The Uses Of Aristotle In Garamer's Recovery Of Consultative Reasoning: Sunesis, Sungnômê, Epieikeia, And Sumbouleuesthai, P. Christopher Smith Dec 2000

The Uses Of Aristotle In Garamer's Recovery Of Consultative Reasoning: Sunesis, Sungnômê, Epieikeia, And Sumbouleuesthai, P. Christopher Smith

Chicago-Kent Law Review

Using Hans-Georg Gadamer's exposition of Aristotle's adjuncts to phronêsis, or the knowing that guides deliberation, namely understanding, forbearance, and clemency, this Article attempts to retrieve a communal reasoning still evident in Homer but increasingly covered over beginning with Plato and continuing through Hobbes and Locke, in the English-language tradition, and, more recently, Rawls and Toulmin. This Article shows that, in Gadamer's reading of him, Aristotle emerges as a crucial interruption of this tendency of Western thought to abstract from the communal origins of reasoning and to start instead from what an isolated individual sees for himself or ...


How To Be Critical, Stephen M. Feldman Dec 2000

How To Be Critical, Stephen M. Feldman

Chicago-Kent Law Review

Many opponents of critical legal thought assert that it is easy to be critical but hard to be constructive. From this perspective, critical legal activity is simple, while traditional theory is difficult. Feldman argues otherwise. Hans-Georg Gadamer's emphasis on the role and power of tradition in the hermeneutic process suggests how tradition forcefully constrains us. Our prejudices, derived from our communal traditions, limit what we can understand and perceive. Thus, to perform critical activity proves often to be a formidable challenge. It requires the writer somehow to disrupt the reader's basic and deep-seated assumptions, assumptions that typically emerge ...


Gadamer, Heidegger, And The Social Dimensions Of Language: Reflections On The Critical Potential Of Hermeneutical Philosophy, Ingrid Scheibler Dec 2000

Gadamer, Heidegger, And The Social Dimensions Of Language: Reflections On The Critical Potential Of Hermeneutical Philosophy, Ingrid Scheibler

Chicago-Kent Law Review

Beginning with an account of recent efforts, like Georgia Warnke's, to demonstrate Hans-Georg Gadamer's relevance to legal theory, this Article looks at Gadamer's conception of language and tradition, claiming that, while he shares important features of Heidegger's thought, Gadamer productively grounds his view of language and tradition in such a way that the everyday realm of public discourse, characterized by a healthy injunction to foster reasoned debate amongst divergent perspectives and interpretations, has a vital and integral role to play. While Gadamer criticizes the Enlightenment's hostility to tradition, paradoxically, his concept of linguistically mediated tradition ...


The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii Dec 2000

The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii

Chicago-Kent Law Review

In his recent book, Cultural Software, Jack Balkin offers a new approach to ideology and critical theory in an effort to overcome the deficiencies he finds in Hans-Georg Gadamer's hermeneutical account. This Article demonstrates that the productive aspects of Balkin's theory are central to Gadamer's philosophy, and the unproductive elements in Balkin's theory are best explained by his deviation from Gadamer's philosophical hermeneutics. Mootz rejects Balkin's transcendental argument in favor of Gadamer's insistence that critique is a feature of hermeneutical experience and that critical theory is the practice of maximizing the critical distance ...


Traces Of Violence: Gadamer, Habermas, And The Hate Speech Problem, R. George Wright Dec 2000

Traces Of Violence: Gadamer, Habermas, And The Hate Speech Problem, R. George Wright

Chicago-Kent Law Review

This Article offers fresh insight into the controversial issue of hate speech regulation by borrowing major themes from the works of Hans-Georg Gadamer and Jürgen Habermas. Wright emphasizes Gadamer's connection between language and historical traditions to demonstrate how hate speech differs from any real attempt at genuine speaking. Wright then focuses on Habermas's notion of a communicative ideal that helps differentiate between speakers who intend to invite open discourse and typical epithet speakers who likely have no such purpose. Wright concludes that the contributions of Gadamer and Habermas enable us to determine what types of speech promote the ...


Interpretation, Critique, And Adjudication: The Search For Constitutional Hermeneutics, John T. Valauri Dec 2000

Interpretation, Critique, And Adjudication: The Search For Constitutional Hermeneutics, John T. Valauri

Chicago-Kent Law Review

This Article seeks a model for a constitutional hermeneutics in an examination of two key debates in philosophical hermeneutics—the Gadamer-Betti debate over the role of author's meaning in interpretation and the Gadamer-Habermas debate over transcendence and critique. It compares these to the framers' intent and nonoriginalism disputes in constitutional theory. But the result is not another method of constitutional interpretation. Rather it is a hermeneutically informed way of viewing the practice of constitutional adjudication itself.


Nonmajority Unions, Employee Participation Programs, And Worker Organizing: Irreconcilable Differences?, Carol Brooke Dec 2000

Nonmajority Unions, Employee Participation Programs, And Worker Organizing: Irreconcilable Differences?, Carol Brooke

Chicago-Kent Law Review

The debate over section 8(a)(2) of the National Labor Relations Act and the appropriate role of employer-sponsored employee participation plans ("EPPs") in the workplace coincides with growing attention to the usefulness of nonmajority unions ("NMUs") in providing a voice for workers. This Note examines the effectiveness of an NMU in a manufacturing plant in rural North Carolina, and the interaction of that worker-run organization with EPPs established by management. The experience of these workers suggests that section 8(a)(2) should be amended to require employers with EPPs to offer equal support and assistance to NMUs.


Farmworkers, Nonimmigration Policy, Involuntary Servitude, And A Look At The Sheepherding Industry, Kimi Jackson Dec 2000

Farmworkers, Nonimmigration Policy, Involuntary Servitude, And A Look At The Sheepherding Industry, Kimi Jackson

Chicago-Kent Law Review

Congress should abolish the nonimmigrant visa for farmworkers because of its inherently abusive and unjust nature. The visa allows abuse of farmworkers to flourish because guest workers, who live in the United States only for a short period of time, have no hope of becoming permanent residents. The workers constantly fear deportation and are unlikely to assert their rights in court. Because guest workers, by nature of their visas, may only work for one employer and the consequence for quitting is deportation, the workers may be forced to endure abusive treatment. Legal coercion prevents agricultural guest workers from leaving their ...


Bad Medicine: The Anticompetitive Side-Effects Of Physician Unionization, Thomas Hamilton Segars Dec 2000

Bad Medicine: The Anticompetitive Side-Effects Of Physician Unionization, Thomas Hamilton Segars

Chicago-Kent Law Review

In response to the predominance of managed health care, ever-increasing numbers of physicians are turning to unionization as a means of negotiating contracts with larger insurers. While physician unionization has a history of both political and legal controversy, recent federal legislation aims to make the practice legitimate. This Note discusses the trend toward physician unionization, the resulting anticompetitive effects, as well as possible alternatives for physicians seeking to bargain with the powerful health care insurance industry.


Natural Rights And The Second Amendment, Steven J. Heyman Oct 2000

Natural Rights And The Second Amendment, Steven J. Heyman

Chicago-Kent Law Review

A growing body of scholarship claims that the Second Amendment was intended to enable individuals to exercise their natural right to self-defense against violence. In this Article, Heyman shows that this view is based on a misunderstanding of the natural rights tradition, as reflected in the works of Locke and Blackstone, the post-Revolutionary state declarations of rights, and the debates over the Constitution and the Bill of Rights. Natural rights theory held that, when individuals entered society, they largely gave up their right to use force against others in return for the protection that they received under the law. And ...


Murder Media—Does Media Incite Violence And Lose First Amendment Protection?, Christopher E. Campbell Oct 2000

Murder Media—Does Media Incite Violence And Lose First Amendment Protection?, Christopher E. Campbell

Chicago-Kent Law Review

Society is increasingly inclined to hold publishers and producers responsible for the violent acts of their readers or viewers. This Note, however, argues that First Amendment protections should not be reduced to the lowest common denominator just because some sociopaths read the same books or view the same movies as the rest of society does. Instead, this Note contends that citizens should be encouraged to take responsibility for their actions and to know that they alone will be held accountable for their antisocial behavior. This Note reviews recent lawsuits against publishers and producers. It then discusses First Amendment theories as ...


Lost And Found: Researching The Second Amendment, Robert J. Spitzer Oct 2000

Lost And Found: Researching The Second Amendment, Robert J. Spitzer

Chicago-Kent Law Review

The recent proliferation of writings on the Second Amendment makes numerous claims including: (1) there has been little or no legal scholarship on the Second Amendment until recent times; (2) the "individualist" view of the Second Amendment is the dominant or mainstream paradigm; (3) the courts have committed a "dereliction of duty" insofar as they have been silent on, or indifferent to, interpretation of the Second Amendment; and (4) since three of the four Supreme Court cases concerning the Second Amendment were decided in the nineteenth century, the court doctrine is somehow defective, irrelevant, outdated, unclear, or "embarrassing." In this ...


The Second Amendment In Action, Michael A. Bellesiles Oct 2000

The Second Amendment In Action, Michael A. Bellesiles

Chicago-Kent Law Review

There are those who argue that the Second Amendment guarantees an unrestricted individual right to gun ownership. If the original intention of the framers of the Constitution and Bill of Rights is to inform contemporary debates, then we must know more about the historical context in which these documents were written. This Article explores the nature and extent of gun laws at the time the Second Amendment was ratified by the states, as well as those laws passed in the shadow of this Amendment. The continuing efforts of states to control access to and use of guns once the Second ...


Rice V. Paladin Enterprises: Why Hit Man Is Beyond The Pale, Beth A. Fagan Oct 2000

Rice V. Paladin Enterprises: Why Hit Man Is Beyond The Pale, Beth A. Fagan

Chicago-Kent Law Review

This Comment examines the Fourth Circuit Court of Appeals decision in Rice v. Paladin Enterprises, Inc., which held that the publisher of a criminal instruction manual could be held liable for civil aiding and abetting without running afoul of the First Amendment. Fagan analyzes the traditional rationales for protecting free speech to determine the appropriate level of protection for criminal instruction manuals and focuses on Hit Man: A Technical Manual for Independent Contractors, the book that facilitated the murders at issue in Rice. She assesses the First Amendment value of Hit Man and balances that value against the dangers posed ...


The Second Amendment: The Highest State Of Originalism, Jack N. Rakove Oct 2000

The Second Amendment: The Highest State Of Originalism, Jack N. Rakove

Chicago-Kent Law Review

Originalism is the theory of constitutional interpretation that holds that the meaning of the various provisions of the Constitution was fixed at the moment of their adoption, and that the goal of interpretation is to recover that historical meaning and apply it to current disputes. No subject of current constitutional controversy is more closely tied to originalist theories of interpretation than the debate over the meaning of the Second Amendment. But for all the lip service given to originalism and all the homage Americans pay to the wisdom of the founders, there is little agreement among scholars as to how ...


The History And Politics Of Second Amendment Scholarship: A Primer, Carl T. Bogus Oct 2000

The History And Politics Of Second Amendment Scholarship: A Primer, Carl T. Bogus

Chicago-Kent Law Review

The introductory Article to this Symposium reviews the history and politics of Second Amendment scholarship, beginning in 1960, when the first article endorsing the individual right model was published, challenging what had previously been the accepted view that the Second Amendment grants only a collective right to keep and bear arms within the government-organized militia. Bogus describes how gun rights organizations embarked on a bootstrap campaign to develop a large body of writing supporting the individual right model, much of it by lawyers directly employed by or representing gun rights organizations, and then argued that the sheer mass of this ...