Law Commons^™

Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine

San Diego International Law Journal

This Essay aims to examine some of the common elements of law and economics and the Brisker method that have contributed to their success as intellectual movements. Toward that end, the Essay compares the founding principles of these movements, exploring similarities in their essential characteristics. Part I presents and analyzes representative examples of the conceptual approach underlying each of these methods. Drawing on these and other examples of each method, Part II observes that the success of the methods stems in part from their common reliance on historical antecedents as well as their emphasis on conceptual frameworks broadly applicable within …

Marriage And The Elephant: State Regulation Of Intimate Relationships Between Adults , Maxine Eichner

ExpressO

This essay considers the current debate in legal theory over the future of marriage. Should the state, as some scholars argue, privilege marriage because of the benefits it provides to society? Or should it, as others argue, distance itself from relationships between adults on the ground that adults should be left to order their own affairs? The essay argues that scholars involved in this debate have reached such diametrically different conclusions from one another because each side has focused on a particular, narrow range of goods at issue in these relationships. Relationships between adults, however, implicate a number of important …

Resisting Deep Capture: The Commercial Speech Doctrine And Junk-Food Advertising To Children, David Yosifon

Faculty Publications

The present Article is more precisely dedicated to analyzing, from a critical realist perspective, the wisdom and constitutional viability of one possible policy response to the obesity crisis: a ban on junk-food advertising to children.

This Article seeks not only to show that an effective junk-food advertising ban could pass constitutional scrutiny, but also to demonstrate, through the rigor of a constitutional analysis, the wisdom of such an approach to this substantial social problem. Simultaneously, my purpose is to show, in the context of a difficult First Amendment question, that the critical realist approach to legal theory is capable of …

The Multistate Bar Exam As A Theory Of Law, Daniel J. Solove

Michigan Law Review

What is the most widely read work of jurisprudence by those in the legal system? Is it H.L.A. Hart's The Concept of Law? Ronald Dworkin's Law's Empire? No. It is actually the Multistate Bar Exam ("Bar Exam"). Perhaps no other work on law has been so widely read by those in the legal profession. Although the precise text of the Bar Exam is different every year, it presents a jurisprudence that transcends the specific language of its text. Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study …

The Alien Tort Statute And The Torture Victims' Protection Act: Jurisdictional Foundations And Procedural Obstacles, Eric A. Engle

Eric A. Engle

Outlines the jurisdictional and procedural obstacles to alien tort claims and claims under the torture victims's protection act and presents solutions to them.

Responsibility For Historical Injustices: Reconceiving The Case For Reparations, Amy J. Sepinwall

Amy J. Sepinwall

Two opposing conceptions of responsibility animate the debate about reparations for slavery. Opponents of reparations espouse an individualist conception, and hold that one may be held responsible only for an action in which she participated directly, and only to the extent that her contribution caused harm. Since no contemporary citizen participated in slavery, opponents conclude that no contemporary citizen has a duty of repair. Supporters of reparations, or reparationists, adopt or develop theories of collective responsibility, according to which responsibility attaches to a group first and foremost, and then gets ascribed to the group's members derivatively. Reparationists thus argue that, …

The Internal Point Of View In Law And Ethics: Introduction, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

A Socio-Legal Methodology For The Internal/External Distinction: Jurisprudential Implications, Brian Z. Tamanaha

Fordham Law Review

No abstract provided.

Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine

Scholarly Works

Of the various movements that have surfaced in American legal theory in recent decades, law and economics has emerged as perhaps the most influential, leading some to characterize it as the dominant contemporary mode of analysis among American legal scholars. In this essay, Levine considers law and economics in the context of a comparative discussion of another prominent intellectual legal movement, the Brisker method of Talmudic analysis, which originated in Eastern Europe in the late nineteenth century and quickly developed into a leading method of theoretical study of Jewish law. The Brisker method takes its name from the city of …

What Is The Internal Point Of View?, Scott J. Shapiro

Fordham Law Review

No abstract provided.

Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen Perry

Fordham Law Review

No abstract provided.

Hobbes And The Internal Point Of View, Claire Finkelstein

Fordham Law Review

No abstract provided.

Legal Obligations And The Internal Aspect Of Rules, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

The Intrinsic Value Of Obeying A Law: Economic Analysis Of The Internal Viewpoint, Robert Cooter

Fordham Law Review

No abstract provided.

Rules, Standards, And The Internal Point Of View, Dale A. Nance

Fordham Law Review

No abstract provided.

Taking Cues: Inferring Legality From Others' Conduct, Bruce A. Green

Fordham Law Review

No abstract provided.

Lawyers, Citizens, And The Internal Point Of View, W. Bradley Wendel

Fordham Law Review

No abstract provided.

Duty In Tort Law: An Economic Approach, Keith N. Hylton

Fordham Law Review

No abstract provided.

Seeing Tort Law From The Internal Point Of View: Holmes And Hart On Legal Duties, John C.P. Goldberg, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

Someplace Between Philosophy And Economics: Legitimacy And Good Corporate Lawyering, Donald C. Langevoort

Fordham Law Review

No abstract provided.

A Tale Of Two Trajectories, Cynthia A. Williams

Fordham Law Review

No abstract provided.

Against Interpretive Obligation (To The Supreme Court), Abner S. Greene

Fordham Law Review

No abstract provided.

The "Bad Man" Goes To Washington: The Effect Of Political Influence On Corporate Duty, Jill E. Fisch

Fordham Law Review

No abstract provided.

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

Fordham Law Review

No abstract provided.

Are Constitutional Norms Legal Norms?, Jeremy Waldron

Fordham Law Review

No abstract provided.

Evaluating Goldberg And Zipursky's Civil Recourse Theory, Jane Stapleton

Fordham Law Review

No abstract provided.

Hamdan V. Rumseld: The Legal Academy Goes To Practice, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Hamdan v. Rumsfeld is a rare Supreme Court rebuke to the President during armed conflict. The time is not yet right to tell all of the backstory of the case, but it is possible to offer some preliminary reflections on how the case was litigated, the decision, and its implications for the oft-noticed divide between legal theory and practice.

In a widely cited article, Judge Harry Edwards lamented "the growing disjunction between legal education and the legal profession," claiming that "many law schools. .. have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and …

The Federal Criminal "Code" Is A Disgrace: Obstruction Statutes As Case Study, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

Any discussion of federal penal law must begin with an important caveat: There actually is no federal criminal "code" worthy of the name. A criminal code is defined as "'a systematic collection, compendium, or revision' of laws." What the federal government has is a haphazard grab-bag of statutes accumulated over 200 years, rather than a comprehensive, thoughtful, and internally consistent system of criminal law. In fact, the federal government has never had a true criminal code. The closest Congress has come to enacting a code was its creation of Title 18 of the United States Code in 1948. That "exercise, …

Applying The Laws Of Logic To The Logic Of Laws, Hillel Bavli

Fordham Urban Law Journal

The article begins by discussing the difficulties of proving consistency within a formal legal system generally. After establishing the importance of a formalized legal model as a prerequisite of rigorous examination of consistency, it proceeds to investigate issues intrinsic to the current system of law that may prevent formalization of a just legal system as currently conceived. The article argues that flexibility inherent in a just legal system may foreclose the possibility of legal formalization or any comprehensive model thereof. The article concludes, however, that a model whose purpose is the examination of consistency within a system need not necessarily …

Universal Human Rights: A Generational History, Eric A. Engle

Eric A. Engle

The article outlines the generational theory of human rights evolving from first generation procedural individual freedoms from through second generation collective rights to into third generational aspirational goals. That model is generally true but womens rights and rights of non-white persons do not perfectly fit into that model being approximately one or even two generations delayed.