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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 ...


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 ...


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 Changes Of Knowledge In Contemporary Chinese Legal Theory(当代中国法学理论学科的知识变迁), Meng Hou Oct 2006

The Changes Of Knowledge In Contemporary Chinese Legal Theory(当代中国法学理论学科的知识变迁), Meng Hou

Hou Meng

No abstract provided.


Note: Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson Oct 2006

Note: Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson

Brandon N. Robinson

For decades, the famous school desegregation case of Brown v. Board of Education and its progeny have supported the notion that a State may not constitutionally require [racial] segregation of public facilities. Indeed, with regard to state-mandated racial segregation, the doctrine of separate but equal has long been considered dead and buried. In February 2005, however, the Supreme Court of the United States in Johnson v. California curiously reopened the segregation question by replacing the post-Brown ban on racial segregation with the strict scrutiny standard of review afforded to all other racial classifications, thereby muddying the once clear doctrinal waters ...


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 ...


Against Sovereignty: A Cautionary Note On The Normative Power Of The Actual, Patrick Mckinley Brennan Sep 2006

Against Sovereignty: A Cautionary Note On The Normative Power Of The Actual, Patrick Mckinley Brennan

Patrick McKinley Brennan

Drawing on classical and contemporary jurisprudence and political philosophy, this Essay argues that the Roberts Court should seize the next apt moment to abandon the doctrines of “sovereignty” and “sovereign dignity” that the Rehnquist Court developed over the decade that began with the 1996 decision in the Seminole case. Although pursued in service of the laudable goal of “our federalism,” these doctrines work a corruption of our legal, political, and moral self-understanding. As they do so, they distract the Court and the citizenry from the disciplined commitment to the rule of law and legal justice by which a body politic ...


Parents Involved & Meredith: A Prediction Regarding The (Un)Constitutionality Of Race-Conscious Student Assignment Plans, Eboni S. Nelson Sep 2006

Parents Involved & Meredith: A Prediction Regarding The (Un)Constitutionality Of Race-Conscious Student Assignment Plans, Eboni S. Nelson

ExpressO

During the October 2006 Term, the United States Supreme Court will consider the constitutionality of voluntary race-conscious student assignment plans as employed in Parents Involved in Community Schools v. Seattle School District No.1 and Meredith v. Jefferson County Board of Education. These cases will mark the Court’s first inquiry regarding the use of race to combat de facto segregation in public education. This article examines the constitutionality of such plans and provides a prediction regarding the Court’s decisions.

The article begins with an analysis of the resegregation trend currently plaguing American educational institutions and identifies two causes ...


Empire Has Its Own Hurdles: Exploring The Nature Of Exceptionalism And Its Consequences For International Law And Multilateral Decision-Making, Saptarishi Bandopadhyay Sep 2006

Empire Has Its Own Hurdles: Exploring The Nature Of Exceptionalism And Its Consequences For International Law And Multilateral Decision-Making, Saptarishi Bandopadhyay

ExpressO

While it is increasingly becoming a platitude that exceptionalism exists in international law, little is being said about the nature, degrees of this exceptionalism and their differential consequences on the international legal system.

In my effort to bridge what I see as an oversight, this paper will seek to show how contemporary exceptionalist practices are creating a fault in the international legal order which will in turn provide a basis for others to argue for an overall reformulation of rules i.e. actions in contravention of the multilateral international legal framework would no longer need to be justified by manipulative ...


Legal Consciousness And Contractual Obligations, Kojo Yelpaala Sep 2006

Legal Consciousness And Contractual Obligations, Kojo Yelpaala

ExpressO

The Article on “Legal Consciousness and Contractual Obligations” will explore and offer an explanation of the origins of the moral foundations for contractual obligations beyond conventional analysis. Building on themes and threads across many disciplines and theories, it seeks to identify and locate certain unities and common elements that explain human consciousness in exchange relations across cultures. The term contract is used in its non-technical and most inclusive sense to cover agreements, promises, undertakings and other forms of consensus whether or not supported by consideration. Viewed within this broad conceptual framework, where do human beings get the idea that they ...


Noncomparabilities & Non Standard Logics, Robert C. Hockett Sep 2006

Noncomparabilities & Non Standard Logics, Robert C. Hockett

Cornell Law Faculty Publications

Many normative theories set forth in the welfare economics, distributive justice and cognate literatures posit noncomparabilities or incommensurabilities between magnitudes of various kinds. In some cases these gaps are predicated on metaphysical claims, in others upon epistemic claims, and in still others upon political-moral claims. I show that in all such cases they are best given formal expression in nonstandard logics that reject bivalence, excluded middle, or both. I do so by reference to an illustrative case study: a contradiction known to beset John Rawls's selection and characterization of primary goods as the proper distribuendum in any distributively just ...


Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults Sep 2006

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

ExpressO

The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.


Formulaic Deliberation, Andre L. Smith Sep 2006

Formulaic Deliberation, Andre L. Smith

ExpressO

Formulaic Deliberation describes the major interpretive regimes--textualism, intentionalism, purposivism, and pragmatism—and represents them formulaically. By classifying them this way, it more precisely describes them as theories, so that we can more precisely perform them as deliberative techniques. And, if we agree that none of them, individually, fits all cases at all times, we can formulaically describe how to synthesize them toward a discrete decision.

William Eskridge, Stanley Fish, Hon. Antonin Scalia, Richard Posner, Ronald Dworkin, John Hart Ely, Adrian Vermeule, Hon. Stephen Breyer, Cass Sunstein, Lawrence Lessig. All of them are right, their method for deciding cases produces benefits ...


Judicial Caprice, Eric Miller Sep 2006

Judicial Caprice, Eric Miller

ExpressO

No abstract provided.


Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy Sep 2006

Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy

ExpressO

Social contract theorists suggest that society at some level is based on the idea that human people surrender freedom for the privilege of participating in society. That participation implicitly requires more than mere minimal compliance with law. Each human person’s contribution to society above the legal baseline, permits humans to create a society that is at least tolerable. Corporations as non-human act without regard for these supra-legal obligations which results in society suffering injustice. Corporate participation in society has become increasingly unjust and has done so to the extent that we may speak of living in a post-ethical world.


Radicals In Robes: A Review, Dru Stevenson Sep 2006

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis ...


Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice Sep 2006

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested ...


When Should Judges Appoint Experts?: A Law And Economics Perspective, Jonathan T. Tomlin, David Cooper Sep 2006

When Should Judges Appoint Experts?: A Law And Economics Perspective, Jonathan T. Tomlin, David Cooper

ExpressO

The Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals placed federal judges in the role of “gatekeepers” empowered to evaluate the reliability of often complex expert testimony. Many judges, commentators, and legal scholars have argued that court-appointed experts can assist judges in appropriately carrying out their gatekeeping role. However, previous literature has not evaluated the role of court-appointed experts in a rigorous framework that considers the complex interaction of the incentives of expert witnesses, the impact of expert witnesses on the decision-making of the fact finder, and the knowledge of the judge. In this article, we provide such ...


A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch Sep 2006

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared ...


Taking "Justice And Fairness" Seriously: Distributive Justice And The Takings Clause, Jeffrey M. Gaba Sep 2006

Taking "Justice And Fairness" Seriously: Distributive Justice And The Takings Clause, Jeffrey M. Gaba

ExpressO

Since the 1960 case of Armstrong v. United States, the Supreme Court has repeatedly stated that “the” purpose of the Takings Clause is to prevent burdens falling on individual landowners that should in “justice and fairness” be born by society as a whole. The essay argues that this embodies a concept of distributional justice and further argues that the Court has failed to adequately consider the implications of such a conception as the basis of Takings analysis. The essay, after describing the origins of the Armstrong principle, discusses four implications: first, the rejection of a rights- based conception of the ...


Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila Sep 2006

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent ...


The Restitutionary Approach To Just Compensation, Tim Kowal Sep 2006

The Restitutionary Approach To Just Compensation, Tim Kowal

ExpressO

In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that ...


The Pragmatic Populism Of Justice Stevens' Free Speech Jurisprudence, Gregory P. Magarian Sep 2006

The Pragmatic Populism Of Justice Stevens' Free Speech Jurisprudence, Gregory P. Magarian

Working Paper Series

In his three decades on the Supreme Court, Justice John Paul Stevens has developed a distinctive approach to the First Amendment. During his tenure, the Court’s majority has crystallized a theory of First Amendment speech protection as an abstract, negative protection of individual autonomy against government interference. In contrast, Justice Stevens’ pragmatic judicial methodology has caused him to place greater emphasis on free speech decisions’ practical consequences, particularly their effectiveness in making democratic debate inclusive as to both participants and subject matter in order to ensure robust, well-informed public discourse. Alone on the present Court, Justice Stevens manifests a ...