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Articles 1 - 30 of 44
Full-Text Articles in Law
Ideologia E Utopias Nas Mais Recentes Constituintes Brasileira E Portuguesa: Algumas Linhas De Leitura, Paulo Ferreira Da Cunha
Ideologia E Utopias Nas Mais Recentes Constituintes Brasileira E Portuguesa: Algumas Linhas De Leitura, Paulo Ferreira Da Cunha
Paulo Ferreira da Cunha
Based upon a political compromise, in which « democratic socialists » and « social democrats » were the main protagonists, the ideology of Portuguese Constitution of 1976 was discrete, subtle. And ulterior constitutional revisions confirmed that fondamental aspect. Of course, utopia was present. But, even more present was the « hope principle ». We believe that the Brazilean constituent assembly, with the original importance of popular contributions, also had hope principle’s decisive influence. But the dinamics of the constituent assembly moderated, since the very beggining, the verbal signs of less discret ideologies. Utopia, neverthless, is very present in the aim …
Szerződésértelmezés Hermeneutika És Jogpolitika Között. A Contra Proferentem Szabály [Contract Interpretation Between Hermeneutics And Policy: The Contra Proferentem Rule], Péter Cserne
Péter Cserne
This paper discusses why contract interpretation is substantially different from the interpretation of literary works and illustrates the argument with the analysis of the contra proferentem rule. It is a substantially revised version of my ‘Policy considerations in contract interpretation: the contra proferentem rule from a comparative law and economics perspective’ (2009)
Teoria Unificada Da Colusão: Uma Sugestão De Regulação Dos, Ivo T. Gico
Teoria Unificada Da Colusão: Uma Sugestão De Regulação Dos, Ivo T. Gico
Ivo Teixeira Gico Jr.
A legislação concorrencial brasileira caracteriza toda e qualquer forma de abuso do poder econômico como uma infração à ordem econômica. A principal conduta delitiva é a formação de cartel. A maior dificuldade na implementação de uma política pública contrária à cartelização dos mercados é a caracterização jurídica de um acordo entre concorrentes, principalmente, no contexto oligopolístico. Nossa hipótese é a seguinte: se a lei brasileira não exige a presença de um acordo para a caracterização do delito administrativo, deveria ser juridicamente possível condenar a coordenação indevida de ações entre concorrentes mesmo na ausência de acordo. Não obstante, como a colusão …
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David Gray
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David Gray
David C. Gray
The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …
Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray
Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray
David C. Gray
The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the …
An Excuse-Centered Approach To Transitional Justice, David Gray
An Excuse-Centered Approach To Transitional Justice, David Gray
David C. Gray
Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice. This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define …
A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray
A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray
David C. Gray
It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …
O Que É Uma Universidade?, Paulo Ferreira Da Cunha
O Que É Uma Universidade?, Paulo Ferreira Da Cunha
Paulo Ferreira da Cunha
Pouca gente sabe hoje o que é uma Universidade, a sério. Confunde-se muito Universidade e super-mercado de aulas, ou fábrica de « investigação » ou « pesquisa », assim como se confunde serviço público com negócio, vocação com interesse pessoal, etc. É a própria essência da Universidade que está em causa. A confusão é grande no público, que vê a Universidade sobretudo como uma forma de promoção social, pelos diplomas. A confusão não é menor na própria Universidade. Os universitários mais responsáveis interrogam-se sobre a sua função, o sentido do trabalho que fizeram e fazem, e a sua sorte na …
Juristocracy In The Trenches: Problem-Solving Judges And The Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard C. Boldt, Jana B. Singer
Juristocracy In The Trenches: Problem-Solving Judges And The Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard C. Boldt, Jana B. Singer
Jana B. Singer
This article explores the role of judges on two types of “problem-solving courts”: drug treatment courts and unified family courts. It compares the behavior these “problem-solving” judges to more traditional models of judicial behavior and to activist judging at the appellate level. The authors conclude that the judges who serve on these problem-solving courts have largely repudiated the classical judicial virtues of restraint, disinterest and modesty in favor of a more activist and therapeutic stance. However, the causes and consequences of this role-shift are complex. In particular, the authors suggest that the proliferation of problem solving courts and judges is …
Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan
Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan
Patrick McKinley Brennan
This paper considers the central normative claim of Martha Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, viz., that the U.S. Constitution’s religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum’s argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them priority over the also reasonably …
The Case Against National Security Courts, Stephen I. Vladeck
The Case Against National Security Courts, Stephen I. Vladeck
Stephen I. Vladeck
Since September 11, calls for a hybrid national security court to handle special terrorism cases have taken on a new-found prominence, as courts and policymakers alike have struggled with the complex series of legal and logistical problems posed by the U.S. government's detention of enemy combatants, especially the hundreds of non-citizens so detained at Guantanamo Bay, Cuba. National security courts are, for many, an increasingly attractive compromise solution to the seemingly irreconcilable division between those who believe that terrorism suspects are not entitled to the traditional criminal process and those who believe not only that they are, but that any …
What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope Pether
What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope Pether
Penelope J Pether
Australian journalist Paul Sheehan's representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in Girls Like You, like his representation of the rape survivors in that text, has much to tell us about the law's production of rape law's speaking and signifying subjects, "real rape" victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including Girls Like You, recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in rape prosecutions, …
The Death Of The American Trial, Robert Burns
The Death Of The American Trial, Robert Burns
Robert P. Burns
This book analyzes and criticizes the loss of one of the great achievements of our public culture, the American trial.
Lagprövningsdebatten 1955-1966. I Skärningsfältet Mellan Juridik Och Politik., Uta Bindreiter
Lagprövningsdebatten 1955-1966. I Skärningsfältet Mellan Juridik Och Politik., Uta Bindreiter
Uta Bindreiter
No abstract provided.
Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay
Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay
Richard Kay
In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the "original public meaning" of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of …
The Difference Between Obedience Assumed And Obedience Accepted, Christian Dahlman
The Difference Between Obedience Assumed And Obedience Accepted, Christian Dahlman
Christian Dahlman
The analysis of legal statements that are made from an “internal point of view” must distinguish statements where legal obedience is accepted from statements where legal obedience is only assumed. Statements that are based on accepted obedience supply reasons for action, but statements where obedience is merely assumed can never provide reasons for action. It is argued in this paper that John Searle neglects this distinction. Searle claims that a statement from the internal point of view provides the speaker with reasons for actions that are “self-sufficient” in the sense that they are independent of the speaker's beliefs and desires. …
Paper Till Nordisk Konferens Om Kön Och Rätt, Tromsø 2009, Linnéa Wegerstad
Paper Till Nordisk Konferens Om Kön Och Rätt, Tromsø 2009, Linnéa Wegerstad
Linnéa Wegerstad
Sexualbrottens sexualitet(er) - om den straffrättsliga konstruktionen av sexualitet
Under de senaste trettio åren har sexualbrottslagstiftningen varit föremål för omfattande kritik, särskilt utifrån feministiska argument. Dessa argument, bestående i att sexuellt våld betraktas som ett uttryck för bristande jämställdhet mellan könen, har tagits upp i flera statliga utredningar. I första hand har utformningen av våldtäktsparagrafen diskuterats och ifrågasatts. Dock har förekomsten av en särskild brottskategori benämnd sexualbrott inte utmanats nämnvärt. Genom att ta avstamp i den enkla frågan ”Vad är ett sexualbrott?” syftar mitt avhandlingsprojekt till att utforska den straffrättsliga konstruktionen av sexualitet.
Fokus för projektet är den straffrättsliga gränsdragningen …
Contesting Justice: Women, Islam, Law, And Society, Ahmed Souaiaia
Contesting Justice: Women, Islam, Law, And Society, Ahmed Souaiaia
Ahmed E SOUAIAIA
No abstract provided.
Editor’S Introduction, Symposium On Paul Rabinow’S “Prosperity, Amelioration, Flourishing: From A Logic Of Practical Judgment To Reconstruction: An Account Of His Work With Synberc", Penelope Pether
Penelope J Pether
This is the Editor's Introduction to a special written symposium on Paul Rabinow’s “Prosperity, Amelioration, Flourishing: From a Logic of Practical Judgment to Reconstruction” an account of the “anthropologist of reason’[s]” professional involvement with SynBERC, a critical institution in the field of synthetic biology, which latter, as Rabinow explains, “aims at nothing less than the (eventual) regulation of living organisms in a precise and standardized fashion according to instrumental norms.” Contributors to the symposium are Rabinow himself, Richard Mullender, Ruthann Robson, Ruth Miller, Jose Gabilondo, Pamela Bridgewater, Michael Moreland, David Caudill, and Gary Edmond and David Mercer. The essays collected …
On Realism's Own 'Hangover' Of Natural Law Philosophy: Llewellyn Avec Dooyeweerd, David Caudill
On Realism's Own 'Hangover' Of Natural Law Philosophy: Llewellyn Avec Dooyeweerd, David Caudill
David S Caudill
No abstract provided.
L’Unité De La Justification À L’Épreuve De La Justification Juridique [Justificatory Unification And Legal Justification], Mathilde Cohen
L’Unité De La Justification À L’Épreuve De La Justification Juridique [Justificatory Unification And Legal Justification], Mathilde Cohen
Mathilde Cohen
Law As Palimpsest: Conceptualizing Contingency In Judicial Opinions (Forthcoming 2009), Bret Asbury
Law As Palimpsest: Conceptualizing Contingency In Judicial Opinions (Forthcoming 2009), Bret Asbury
Bret Asbury
Metaphors create conceptualizations, and for decades legal academics have employed metaphors to shape understandings of legal problems. But no metaphor in current use successfully conceptualizes the contingency of judicial opinions and the complexity of the relationship between opinions and precedent. This Article seeks to fill this void by introducing a new metaphor, the palimpsest, into the realm of legal analysis. A palimpsest is a writing surface that can be cleared away for reuse, like a personal blackboard. What distinguishes a palimpsest from other writing surfaces is that its removed contents do not disappear, but remain, obscured yet recoverable: A writing …
Le Concept Hartien D’Obligation Juridique, Stephen Utz
Le Concept Hartien D’Obligation Juridique, Stephen Utz
Stephen Gerard Utz
Virtual Rule Of Law, Michael Risch
Virtual Rule Of Law, Michael Risch
Michael Risch
This article, which follows a presentation at the West Virginia Law Review Digital Entrepreneurship Symposium, is the first to consider whether virtual worlds provide a rule of law that sets expectations for virtual business. Many consider the rule of law a catalyst for economic development, and there is reason to believe that it will be equally important in virtual economies, despite differences from the real world. As more people turn to virtual worlds to earn a livelihood, the rule of law will become prominent in encouraging investments in virtual business. The article finds – unsurprisingly – that virtual worlds now …
The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain
The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain
Corinna Lain
Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …
Loneliness And The Law: Solitude Action And Power In Law And Literature, Marc L. Roark
Loneliness And The Law: Solitude Action And Power In Law And Literature, Marc L. Roark
Marc L. Roark
How do our thoughts and attitudes impact the law? Is there a correlation between the way the law is decided and the way we as lawyers and scholars approach law? These questions are the ultimate indicators of the direction of law. Traditionally, we assume that law develops artificially--that is, without direct correlation to any particular individual's contribution thereto--with few exceptions. We attribute broader forces to the development of legal movements; social movements and historical moments that ascend to the law. [FN1] In such scenarios, the individual is lost to the broader panoply of thought, rendered as little more than a …
Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall
Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall
Brian M McCall
This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.
Constituting Vanuatu: Societal, Legal And Local Perspectives,, Benedict Sheehy, Jackson Maogoto
Constituting Vanuatu: Societal, Legal And Local Perspectives,, Benedict Sheehy, Jackson Maogoto
Benedict Sheehy
Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as that system is often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that not only creates a broad challenge for …
The Rights Of Women And Role Of Superior Judiciary In Pakistan With Special Reference To Family Law Case From 2004-2008, Muhammad Munir Dr.
The Rights Of Women And Role Of Superior Judiciary In Pakistan With Special Reference To Family Law Case From 2004-2008, Muhammad Munir Dr.
Dr. Muhammad Munir
Granting and protecting the rights of women in the domain of family law remains one of the most important areas of legislation in Pakistan. The role of judiciary is vital to ensure that the rights of women are protected because decisions of the superior judiciary are binding on the lower courts under the doctrine of precedent. This work focuses on cases decided by the superior judiciary in Pakistan over the period of five years to know the various remedies sought by helpless women. This article finds that legislation in the area of family law protects women to a greater degree …
Desejo, Necessidade, Vontade: O Estado Como Garante Das Potencialidades Humans, Haradja L. Torrens
Desejo, Necessidade, Vontade: O Estado Como Garante Das Potencialidades Humans, Haradja L. Torrens
Haradja L Torrens
The author broaches the subject of the social state democratic promise in the scope of each citizen’s equalities and peculiarities. She outlines the conflict between constitutional rights and circumstantial limitations based on the analysis of economic, juridical and philosophical theories inspired in Ralws, Perelman, Härbele, Verdú and Dworkin. She points out its similiarity to the Brazilian Doctrine followed by Paulo Bonavides, stressing, at last, the post-positivist response to the legal principles for addressing political court trials through case law analysis.