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2006

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Full-Text Articles in Law

The Interdisciplinary Turn In Legal Education , Anthony D'Amato Dec 2006

The Interdisciplinary Turn In Legal Education , Anthony D'Amato

ExpressO

The nature of law and legal practice is changing with the addition of interdisciplinary scholars to law-school faculties and interdisciplinary studies to the law curriculum. However, the accessibility of non-law disciplinarians in the rest of the university raises the question of the cost-effectiveness and opportunity costs of importing them directly into the law school. This Article criticizes the interdisciplinary turn on three grounds. First is the unlikelihood that the joint-degreed persons who join the law faculty will happen to be the ones that their colleagues will end up collaborating with. Second is the even greater unlikelihood that any given discipline ...


Nomos, Conflict, And The Tragedy Of Adjudication: The Jurisprudence Of Robert Cover, Julen Etxabe Dec 2006

Nomos, Conflict, And The Tragedy Of Adjudication: The Jurisprudence Of Robert Cover, Julen Etxabe

ExpressO

Robert Cover is known for having argued that in every plural society there exist, along with the State, multiple normative entities that create and maintain their own sense of normativity, that is, their own holistic modes of assessing good and bad, valid and invalid, right and wrong. Beyond that, few systematic attempts have been made to pursue this view as a comprehensive theory of law. The principal aim of this piece is to demonstrate that Cover offers a novel and viable paradigm of law, which must at least include an ontology (an understanding of the basic units and organizational structure ...


Court Review: Volume 42, Issue 3-4 - Complete Issue Dec 2006

Court Review: Volume 42, Issue 3-4 - Complete Issue

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 42, Issue 3-4 - Judges, Law, Politics & Strategy, Frank B. Cross Dec 2006

Court Review: Volume 42, Issue 3-4 - Judges, Law, Politics & Strategy, Frank B. Cross

Court Review: The Journal of the American Judges Association

In law, we commonly presume that judges reach decisions based on legal materials, such as precedents. In political science, researchers typically presume that judges do not reach decisions based on such legal materials. They maintain that the apparent reliance on precedent to reach decisions is simply a hoax designed to provide cover for a particular outcome. These researchers traditionally argued that judges reach their personally preferred outcome in the case and then rationalize it after the fact with references to precedent, conveniently supplied them by the attorneys for their preferred side.

Much of the empirical research on judicial decision making ...


Court Review: Volume 43, Issue 3-4 - Cover Dec 2006

Court Review: Volume 43, Issue 3-4 - Cover

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 42, Issue 3-4 - Table Of Contents Dec 2006

Court Review: Volume 42, Issue 3-4 - Table Of Contents

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 42, Issue 3-4 - Editor's Note Dec 2006

Court Review: Volume 42, Issue 3-4 - Editor's Note

Court Review: The Journal of the American Judges Association

This issue presents four viewpoints on current issues involving judicial elections, politics, and the effect of public opinion on the courts. In our lead article, Shira Goodman and Lynn Marks of Pennsylvanians for Modern Courts tell the story of Pennsylvania’s 2005 retention election for the Pennsylvania Supreme Court. With very little warning, public opposition developed to the retention of two justices: one was retained with 54% of the vote and one was thrown out of office with only 49% voting to retain him. The election was unusual because it did not relate to opinions issued by either justice. Rather ...


Court Review: Volume 42, Issue 3-4 - Book Review: A Judge's Role In The Rule Of Law, William F. Hurst Iv Dec 2006

Court Review: Volume 42, Issue 3-4 - Book Review: A Judge's Role In The Rule Of Law, William F. Hurst Iv

Court Review: The Journal of the American Judges Association

Two recently published books, On the Rule of Law: History, Politics, Theory by Brian Z. Tamanaha, and The Rule of Law in America by Ronald A. Cass, provide an in-depth analysis into what the rule of law means today, its history, and what impact its meaning has on the current American judiciary.


Court Review: Volume 42, Issue 3-4 - Lessons From An Unusual Retention Election, Shira J. Goodman, Lynn A. Marks Dec 2006

Court Review: Volume 42, Issue 3-4 - Lessons From An Unusual Retention Election, Shira J. Goodman, Lynn A. Marks

Court Review: The Journal of the American Judges Association

On November 8, 2005, something happened in Pennsylvania that has never happened before: an appellate judge, a supreme court justice no less, lost an uncontested retention election. Not only was the loss unprecedented, but with the exception of one retention election in 1993, appellate justices and judges in Pennsylvania routinely have won retention by margins of 70% to 30%. This year, one justice lost his retention election and another barely won with just 54% of the vote.

Retention elections have been a feature of judicial elections in Pennsylvania since the state constitution was amended in 1969. Following election to an ...


Court Review: Volume 42, Issue 3-4 - Judicial Elections: Changes And Challenges, Jan Witold Baran Dec 2006

Court Review: Volume 42, Issue 3-4 - Judicial Elections: Changes And Challenges, Jan Witold Baran

Court Review: The Journal of the American Judges Association

Today, myriad approaches for selecting judges exist and few states—if any at all—use identical schemes. In many states, the selection methods vary depending on whether the judge is a trial or appellate judge, or an initial selection or an incumbent. As will be seen, the vast majority of state judges are elected. Recently, judicial campaigns have become increasingly controversial while traditional restraints have fallen to the wayside. This article will address the variety of election methods, the challenges that recent constitutional decisions have presented to the ABA Code of Judicial Conduct, and whether innovations, such as public financing ...


Court Review: Volume 42, Issue 3-4 - Seizing The Accountability Moment: Enlisting Americans In The Fight To Keep Courts Fair, Impartial, And Independent, Bert Brandenberg Dec 2006

Court Review: Volume 42, Issue 3-4 - Seizing The Accountability Moment: Enlisting Americans In The Fight To Keep Courts Fair, Impartial, And Independent, Bert Brandenberg

Court Review: The Journal of the American Judges Association

Did the 2005 uproar over Terri Schiavo’s end-of-life case mark a peak in the recent surge of attacks on the independence of America’s courts? When the case generated threats to impeach and even murder the presiding judge, and Congress passed a bill seeking to manipulate the case, broad public disapproval helped end the political crisis.1 The President backpedaled—“I believe in an independent judiciary. I believe in checks and balances”2—and dispatched the Vice President and Attorney General to add their reassurances. Just a few months later, Supreme Court nomination hearings offered little hint of the ...


Court Review: Volume 42, Issue 3-4 - A Profile Of Settlement, John Barkai, Elizabeth Kent, Pamela Martin Dec 2006

Court Review: Volume 42, Issue 3-4 - A Profile Of Settlement, John Barkai, Elizabeth Kent, Pamela Martin

Court Review: The Journal of the American Judges Association

Ninety-eight percent of civil cases settle,1 right? Well, not exactly. Although claims of settlement rates of 90% and above are cited frequently, settlement rates really are not that high. Many commentators start with an accurate picture of low, single-digit trial rates (typically 2%-3%), but then they inappropriately assume the inverse—namely, that all the remaining cases are settled. Commentators ignore the fact that a significant proportion of cases are terminated for reasons other than trial or settlement, and their mistake goes undetected because most state judicial systems do not collect any information about settlements.

On the other hand ...


Court Review: Volume 42, Issue 3-4 - E-Courts: The Times They Are A-Changin’, James E. Mcmillan Dec 2006

Court Review: Volume 42, Issue 3-4 - E-Courts: The Times They Are A-Changin’, James E. Mcmillan

Court Review: The Journal of the American Judges Association

The title obviously comes from Bob Dylan’s classic song from 1964. That song captured the spirit of the times and again, in a small way, captures ours as well. This year’s upcoming E-Courts Conference (www.e-courts.org) in December will highlight both the changes that computers have brought to court operations and where things are going in the future.

Court operations have been impacted over the past decade with the implementation of electronic court document filing (aka E-filing). This year the U.S. federal courts will have electronic filing available in nearly all district and bankruptcy courts. We ...


Court Review: Volume 42, Issue 3-4 - Directory Of Officers And Board Of Governors, 2005-2006 Dec 2006

Court Review: Volume 42, Issue 3-4 - Directory Of Officers And Board Of Governors, 2005-2006

Court Review: The Journal of the American Judges Association

Directory of Officers and Board of Governors of American Judges Association


Court Review: Volume 42, Issue 3-4 - President’S Column, Michael Cicconetti Dec 2006

Court Review: Volume 42, Issue 3-4 - President’S Column, Michael Cicconetti

Court Review: The Journal of the American Judges Association

Living in Northeastern Ohio, we are constantly promoting this part of the state as an area virtually free of natural disasters. Oh sure, we have our lake-effect snow, which we have learned to treat as more of an inconvenience and annoyance than a danger. Hurricanes? Those are reserved for the coastal states. Tornadoes? Hello, Kansas! Northeastern Ohio hasn’t experienced one in 35 years. Droughts? We may have an occasional dry spell during the summer but we always have the Great Lakes as a plentiful water source. Mudslides? Never. Forest fires? Doesn’t happen. Earthquakes? Minor blips on the Richter ...


Court Review: Volume 42, Issue 3-4 - The Resource Page Dec 2006

Court Review: Volume 42, Issue 3-4 - The Resource Page

Court Review: The Journal of the American Judges Association

No abstract provided.


Intersectionality And Identity: Revisiting A Wrinkle In Title Vii, Bradley Areheart Nov 2006

Intersectionality And Identity: Revisiting A Wrinkle In Title Vii, Bradley Areheart

Bradley A. Areheart

This article revisits intersectionality, a way of postulating legal identity. Simply put, intersectionality acknowledges that one person’s identity can never be reduced to solely one characteristic, such as religion or sex. Rather, each person’s identity is constructed of the various intersections of ways one might describe oneself.

In the legal context, intersectionality has typically arisen in cases of employment discrimination, where those who theoretically could file a claim under more than protected category are forced to choose only one for their claim—for example, parsing one’s identity as either race or sex, even though a statute like ...


Religião, Direitos Humanos E Educação, Paulo Ferreira Da Cunha Nov 2006

Religião, Direitos Humanos E Educação, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Não admira que haja atritos, incompreensões, entre as religiões e os poderes. Porque, antes de mais, foi preciso a uns e a outros comprimirem-se para darem lugar (espaço, mesmo) ao outro tipo de normatividade e de poder. Em muitos casos históricos se terá começado com um poder de índole teocrática. E só com o tempo e o progresso social e político se passaria a admitir a cisão do mando, num ramo secular e num ramo sacral. O grande problema do tratamento da questão religiosa do ponto de vista dos Direitos Humanos, é que se trata, no limite, de pôr uma ...


Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J. Nov 2006

Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

A persistent American confusion regarding the proper relationship between law and morality is manifest in the opinions in Lawrence v. Texas. The Second Vatican Council’s Declaration on Religious Freedom provides the foundation for an analytical framework that can bring clarity to that confusion. The heart of this framework is the moral concept of public order. This concept offers a principled explanation of both the holding in Lawrence and the limitations the Court placed on that holding. The Court could clarify the confusion manifest in Lawrence by explicitly acknowledging that a state interest only becomes legitimate for purposes of rational ...


Contractarianism, Contractualism, And The Law Of Corporate Insolvency, Riz Mokal Nov 2006

Contractarianism, Contractualism, And The Law Of Corporate Insolvency, Riz Mokal

ExpressO

What is the appropriate way of theorising about corporate bankruptcy law? That lies, argues this paper, in rejecting Pareto and Kaldor-Hicks efficiency in favour of a particular conception of transaction cost efficiency, and in rejecting the ‘contractarian’ Creditors’ Bargain Model in favour of the ‘contractualist’ Authentic Consent Model. The paper vindicates these arguments with an analysis of the automatic stay which characterises the collective liquidation regime, of the pari passu principle often said to be at the heart of this regime, and of the liability imposed in some jurisdictions on the managers of terminally distressed companies for failing to take ...


Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll Nov 2006

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Michael W. Carroll

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle ...


The Decreasing Ontological Density Of The State In Catholic Social Doctrine, Patrick Mckinley Brennan Nov 2006

The Decreasing Ontological Density Of The State In Catholic Social Doctrine, Patrick Mckinley Brennan

Working Paper Series

Over the last century-plus, Catholic social thought has gradually reduced the ontological density of the state, to the point that the state now appears to have only a tentative grasp on the natural law basis of its legitimacy. During the first part of the twentieth century, Catholic social doctrine tended to view the legitimate state as a participant in the divine rule; although draped in a sacred mantle, the state was subject to the limits imposed by the divine and natural law. In response to the totalitarian states’ transgressing of those limits at mid-century, Catholic thinkers reduced the scope and ...


Burkean Minimalism, Cass R. Sunstein Nov 2006

Burkean Minimalism, Cass R. Sunstein

Michigan Law Review

Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the president to protect national security. Burkean minimalists oppose, and ...


Victims And Perpetrators: An Argument For Comparative Liability In Criminal Law, Vera Bergelson Oct 2006

Victims And Perpetrators: An Argument For Comparative Liability In Criminal Law, Vera Bergelson

Vera Bergelson

This article challenges the legal rule according to which the victim’s conduct is irrelevant to the determination of the perpetrator’s criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed. Part I tests the descriptive accuracy of the proposition that the perpetrator’s liability does not depend on the conduct of the victim. Criminological and victimological ...


Daubert And The Disappearing Jury Trial, Allan Kanner Oct 2006

Daubert And The Disappearing Jury Trial, Allan Kanner

ExpressO

Since being decided by the Supreme Court in 1993, Daubert v. Merrell Dow Pharmaceuticals has earned its place as one of the most misinterpreted and misapplied decisions in modern history. Meant to liberalize the standards for admissions of proof, the decision has had the opposite effect. The gatekeeper powers given to judges via Daubert, coupled with the internal and external incentives to prevent jury trials, has placed our entire civil justice system at risk.


Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison Oct 2006

Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison

University of Pittsburgh School of Law Working Paper Series

This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel’s idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits. We present an extended critique of Radin’s analysis, basing the critique in part on Gadamer’s argument that meaning and application are interrelated and that meaning changes with application ...


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


The Reemergence Of Restitution: Theory And Practice In The Restatement (Third) Of Restitution, Chaim Saiman Oct 2006

The Reemergence Of Restitution: Theory And Practice In The Restatement (Third) Of Restitution, Chaim Saiman

Working Paper Series

The ALI’s Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism, and shows that the Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels in fact make a difference, and assesses which recoveries are more (and less) likely ...


The Concerto The Without Sheet Music: Revisiting The Debate Over First Amendment Protection For Information Gathering, Anthony L. Fargo Oct 2006

The Concerto The Without Sheet Music: Revisiting The Debate Over First Amendment Protection For Information Gathering, Anthony L. Fargo

University of Arkansas at Little Rock Law Review

No abstract provided.


Court Review: Volume 43, Issue 3 – Recent Criminal Decisions Of The United States Supreme Court: The 2006-2007 Term, Charles H. Whitebread Oct 2006

Court Review: Volume 43, Issue 3 – Recent Criminal Decisions Of The United States Supreme Court: The 2006-2007 Term, Charles H. Whitebread

Court Review: The Journal of the American Judges Association

The past Term of the Court was one in which it swung to the right. A single justice, Justice Anthony Kennedy, made all the difference—being in the majority in every five-to-four decision that split along ideological lines. Cases of particular interest to state-court judges held that a passenger in a routine traffic stop is seized for Fourth Amendment purposes, that California’s determinative sentencing law was unconstitutional, and that the Court’s decision on Crawford v. Washington would not be applied retroactively on collateral review.