Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

2010

Jurisprudence

Institution
Keyword
Publication
Publication Type
File Type

Articles 1 - 30 of 399

Full-Text Articles in Law

The Prophet (Peace Be Upon Him)'S Merciful Reforms In The Conduct Of War: The Prohibited Acts, Muhammad Munir Dec 2010

The Prophet (Peace Be Upon Him)'S Merciful Reforms In The Conduct Of War: The Prohibited Acts, Muhammad Munir

Dr. Muhammad Munir

This paper argues that Islam introduced far reaching reforms to warfare; that the conduct of the Prophet (peace be upon him) and his successors does not to allow the burning and drowning of enemy to death. Destroying buildings, cutting down trees, committing perfidy, breaching the trust of the enemy, the killing of women, children, servants, old, infirm, sick, wounded, priests, peasants, prisoners of warand envoys is strictly against the teachings of the Prophet (peace be upon him) or his successors. The destruction of harvest, livestock and forests, looting, plundering and corruption from the war booty and indiscipline are prohibited as ...


American Antitrust Jurisprudence Applied To European Commission V. Intel, Paul Jones Dec 2010

American Antitrust Jurisprudence Applied To European Commission V. Intel, Paul Jones

Brigham Young University International Law & Management Review

No abstract provided.


Não Uma Outra República, A Nossa República, Outra, Paulo Ferreira Da Cunha Dec 2010

Não Uma Outra República, A Nossa República, Outra, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Porque é que as democracias nunca se defendem bem? E como não vêem alguns dos que, generosa ou utopicamente, advogam uma nova república (a que chamam IV, normalmente, contando como tal o salazarismo-caetanismo, que foi uma autocracia, logo não uma república, mesmo uma anti-república), estão objectivamente a levar água ao moinho dessa coisa-outra que pode ter fachada republicana (ou monárquica…), mas só poderia ser, de novo, uma autocracia?


Toleration And Calumny: Bayle, Locke, Montesquie And Voltaire On Religious Hate Speech, Jeremy Waldron Dec 2010

Toleration And Calumny: Bayle, Locke, Montesquie And Voltaire On Religious Hate Speech, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

There is a considerable literature on the issue of hate speech. And there is a considerable literature on religious toleration (both contemporary and historic). But the two have not been brought into relation with one another. In this paper, I consider how the argument for religious toleration extends beyond a requirement of non-persection and non-establishment. I consider its application to the question of religious vituperation. The focus of the paper is on 17th and 18th century theories. Locke, Bayle and other Enlightenment thinkers imagined a tolerant society as a society free of hate speech: the kind of religious peace that ...


Socioeconomic Rights And Theories Of Justice, Jeremy Waldron Dec 2010

Socioeconomic Rights And Theories Of Justice, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

This paper considers the relation between theories of justice (like John Rawls’s theory) and theories of socio-economic rights. In different ways, these two kinds of theory address much the same subject-matter. But they are quite strikingly different in format and texture. Theories of socio-economic rights defend particular line-item requirements: a right to this or that good or opportunity (e.g., housing, health care, education, social security). Theories of justice tend to involve a more integrated normative account of a society’s basic structure (though they differ considerably among themselves in their structure). So how exactly should we think about ...


Vagueness And The Guidance Of Action, Jeremy Waldron Dec 2010

Vagueness And The Guidance Of Action, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

This paper is part of a more general argument I am pursuing about the idea of the Rule of Law. I want to argue that the Rule of Law should not always be construed as demanding determinacy and clarity at all costs; it should not always be conceived as the rule of rules (as opposed – sometimes – to the rule of standards). The objection to standards is that, because they use predicates like “reasonable” or “excessive,” they are therefore vague; they give relatively little guidance to those to whom they are addressed; and they leave the individual unclear about where she ...


Dignity, Rights, And Responsibilities, Jeremy Waldron Dec 2010

Dignity, Rights, And Responsibilities, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

Taking as its point of departure, a Green Paper published by the UK government in 2008 urging greater emphasis on responsibilities, this essay considers various senses of "responsibility" that may be thought important in and around the topic of individual rights. Most likely, the authors of the Green Paper had in mind responsibilities that are correlative to rights and responsibilities that qualify rights or limit their exercise. But an additional idea - which has not been properly considered - is the idea of rights which ARE (in large part) responsibilities, rights which embody responsibilities. An obvious example is the right of a ...


Two-Way Translation: The Ethics Of Engaging With Religious Contributions In Public Deliberation, Jeremy Waldron Dec 2010

Two-Way Translation: The Ethics Of Engaging With Religious Contributions In Public Deliberation, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

Using as an exemplar, the 2007 "Evangelical Declaration against Torture," this paper examines the role of religious argument in public life. The Declaration was drawn up by David Gushee, University Professor at Mercer University, and others. It argues for an absolute ban on the use of torture deploying unashamedly Christian rhetoric, some of it quite powerful and challenging. For example, it says: " [T]he Holy Spirit participates in human pathos with groans and sighs too deep for words. The cries of the tortured are in a very real sense, … the cries of the Spirit." The present paper considers whether there ...


Secularism And The Limits Of Community, Jeremy Waldron Dec 2010

Secularism And The Limits Of Community, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

This paper addresses two issues: (1) the use of religious considerations in social and political argument; and (2) the validation of the claims of community against markets and other aspects of globalization. It argues that we should be very wary of the association of (1) with (2), and the use of (1) to reinforce (2). The claims of community in the modern world are often exclusionary (the word commonly associated with community is "gated") and hostile to the rights of the poor, the homeless, the outcast, and so on. The logic of community in the modern world is a logic ...


The Image Of God: Rights, Reason, And Order, Jeremy Waldron Dec 2010

The Image Of God: Rights, Reason, And Order, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

The idea that humans are created in the image of God is often cited as a foundation for human rights theory. In this paper, this use of imago dei is surveyed, and while the paper is basically favorable to this foundation, it draws attention to some difficulties (both theological and practical) that using imago dei as a foundation for human rights may involve. Also it explores the suggestion that the image of God idea may be more apt as a foundation for some rights rather than others. Its use in relation to political rights is specifically explored. The moral of ...


Torture, Suicide, And Determinatio, Jeremy Waldron Dec 2010

Torture, Suicide, And Determinatio, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

In natural law theory, "determinatio" is the process by which natural law is made into determinate positicve law. A lot of discussion of "determinatio" in natural law jurisprudence is just the repetition of tired formulas from Aquinas. In this paper, I try to bring the subject to life by considering the case that can be made for more more detailed elaboration of laws prohibiting (a) assisted suicide and (b) torture. I assume that "determinatio" can be a multi-step process by which we move first from a natural law ideal to a particular formulation of positive law and then from that ...


Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf Dec 2010

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Cornell Law Faculty Publications

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct ...


(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, Victor Quintanilla Nov 2010

(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, Victor Quintanilla

Victor D. Quintanilla

This article examines the element of scienter (fraudulent intent) in claims of federal securities fraud under Section 10(b) of the Exchange Act and, more specifically, the U.S. Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) from a social-psychological perspective. The field of social psychology has documented a pervasive phenomena—the Fundamental Attribution Error—the failure of decision-makers to consider situational explanations, including the force of environments and social and situational norms on human conduct. In light of robust social-psychological research on the Fundamental Attribution Error, legal concepts such as ...


The Distortionary Effect Of Evidence On Primary Behavior, Alex Stein, Gideon Parchomovsky Nov 2010

The Distortionary Effect Of Evidence On Primary Behavior, Alex Stein, Gideon Parchomovsky

Alex Stein

In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an important refinement to the conventional wisdom in law and economics literature, which assumes that legal rules can always be fashioned to achieve socially optimal outcomes. We show that evidentiary motivations will often lead actors to engage in socially suboptimal behavior when doing so is likely to increase their likelihood of prevailing in court. Because adjudicators must base decisions on observable and verifiable information—or, in short, evidence—rational actors will always strive to generate evidence that can later be presented in court and increase their ...


Junior Bar Law Review 1 (2010), 21-40 Judicial Activism Revisited: Reflecting On The Role Of Judges In Enforcing Economic, Social And Cultural Rights, Gehan Gunatilleke Nov 2010

Junior Bar Law Review 1 (2010), 21-40 Judicial Activism Revisited: Reflecting On The Role Of Judges In Enforcing Economic, Social And Cultural Rights, Gehan Gunatilleke

Gehan D Gunatilleke Mr.

Following the conclusion of military operations in Sri Lanka in 2009, the issue of economic development and distributive justice appears to have remerged on the country’s agenda. Within this post-conflict context, the judiciary in Sri Lanka is confronted with a major challenge in terms of defining its proper role in the promotion of Economic Social and Cultural (“ESC”) rights. The precise extent to which judges should be ‘activist’ in promoting these rights should be contrasted with the level of activism required of judges in the sphere of civil and political rights. Advocating ESC rights in Sri Lanka simply cannot ...


Revisões Constitucionais Inconstitucionais?, Paulo Ferreira Da Cunha Nov 2010

Revisões Constitucionais Inconstitucionais?, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Algumas propostas de revisão constitucional parecem ignorar que tal procedimento está constitucionalizado, e que há regras para o fazer, assim como vários limites a respeitar. Só podem ser consideradas iniciativas de divulgação de ideários políticos porque, se por absurdo fossem por diante, acabariam por constituir revisões constitucionais inconstitucionais. Um dos pontos mais nevráligicos da polémica (não só portuguesa) sobre as mutações constitucionais é o Estado Social. Sobre ele se gerou um amplo consenso na Constituinte, que persiste e até talvez se haja aprofundado na sociedade de hoje. Ele faz intrinsecamente parte do programa da Constituição vigente, pelo que revê-la de ...


Visões E Revisões Constitucionais, Paulo Ferreira Da Cunha Nov 2010

Visões E Revisões Constitucionais, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Os tempos actuais são apesar de tudo excelentes para reflectir sobre o vero alcance das normas. E sobretudo das normas generosas da nossa Constituição democrática e social. Não se pense que a Constituição é milagrosa. As crises, como aquela em que nos encontramos, colocam-lhe desafios sérios, e é a força das coisas, dos factos, e não o normativo dos textos, quem impera normalmente.


Informing The 1958 New York Convention, Mary Ayad Nov 2010

Informing The 1958 New York Convention, Mary Ayad

Dr Mary B Ayad PhD

Reforms or amendments to the 1958 Convention are not feasible, therefore this paper argues why a harmonised international commercial and international investment arbitration law code is necessary. Cases will be given from the Middle East to demonstrate the lacunae and contradictions in national law with countries ratifying the Convention.


The Supreme Court’S Rationale In Capital Cases: A One Way Street?, Kimberly Bliss Nov 2010

The Supreme Court’S Rationale In Capital Cases: A One Way Street?, Kimberly Bliss

Pace Law Review

No abstract provided.


כתבה ברשת ב' על ייצוג נשים במו"מ לשלום Radio Story On Women In Peace Talks, Yofi Tirosh Nov 2010

כתבה ברשת ב' על ייצוג נשים במו"מ לשלום Radio Story On Women In Peace Talks, Yofi Tirosh

Yofi Tirosh

This radio story covers a conference at Jerusalem's Van Leer Institute on women and peace. Hit link to hear story.


State Intervention, Conflicts And Harmonised Commercial Arbitration Law Code, Mary Ayad Nov 2010

State Intervention, Conflicts And Harmonised Commercial Arbitration Law Code, Mary Ayad

Dr Mary B Ayad PhD

The thesis of this paper is that a harmonised International Commercial Arbitration Law Code (HICALC), governing MENA- FI and Oil Concession Contracts between Middle Eastern Governments and foreign investors would resolve serious conflicts. The additional question of State intervention in trade is implicated here when States prevent the enforcements of Arbitral Awards or encroach on Arbitral Tribunal jurisdiction. A HICALC can resolve the weaknesses inherent in these laws when dealing with MENA-FI and Oil Concessions. This paper will demonstrate how, by drafting a HICALC that integrates general principles of law from civil, common and sharia law, the central problem facing ...


Logos And Narrative, Geoffrey P. Miller Nov 2010

Logos And Narrative, Geoffrey P. Miller

New York University Public Law and Legal Theory Working Papers

The books of Genesis through Second Kings trace a history of Israel from earliest times through the fall of the Southern Kingdom in 586 BCE. In earlier work, I demonstrate that this narrative contains a sophisticated political theory – a systematic analysis which justifies political authority; demonstrates the necessity of law and government; explores the nature of power relations in families; argues that nationhood is the best form of political organization; identifies self-governance, centralized institutions and sovereignty as the essential elements of nationhood; and claims that constitutional monarchy represents the best form of national government. But if the bible contains such ...


Clark Memorandum: Fall 2010, J. Reuben Clark Law Society, Byu Law School Alumni Association, J. Reuben Clark Law School Nov 2010

Clark Memorandum: Fall 2010, J. Reuben Clark Law Society, Byu Law School Alumni Association, J. Reuben Clark Law School

The Clark Memorandum


The Right To Food And Buyer Power, Aravind Ganesh Oct 2010

The Right To Food And Buyer Power, Aravind Ganesh

Aravind Ganesh

Modern global food supply chains are characterised by extreme levels of concentration in the middle of those chains. This paper argues that such concentration leads to excessive buyer power, which harms the consumers and food producers at the ends of the supply chains. This paper argues that the harms suffered by farmers are serious enough as to constitute violations of the international human right to food as it is expressed in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Political Rights, and further argues that world competition law regimes cannot ignore these human rights ...


Palavras Claras, Paulo Ferreira Da Cunha Oct 2010

Palavras Claras, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Cuidemos das palavras. É tão fácil identificar um novo-rico cultural ou um tecnocrata vazio pela linguagem de plástico... Essa linguagem (voltei a ver agora numa releitura de António Telmo, mas já está em Confúcio), molda mesmo a mente. Quem assim fala, assim pensa. É critério infalível.


Lições Do Kiwi, Paulo Ferreira Da Cunha Oct 2010

Lições Do Kiwi, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Nenhum desafio, nem mesmo o do sabor de um fruto descrito por palavras, pode ficar sem resposta – ainda que aproximativa; a ausência de convenções sobre o como fazer não deve paralisar quem quer fazer; a analogia com o fazer outras coisas pode servir de inspiração; mas não se pode fazer algo de novo, ou face a coisas novas meramente repetindo o antigo – é preciso alguma inovação, ainda que na reunião dos meios; finalmente, cada coisa, cada desafio novo, cada nova tarefa, convoca instrumentos adequados, e não outros.


República E Monarquia: Desfazendo Confusões, Paulo Ferreira Da Cunha Oct 2010

República E Monarquia: Desfazendo Confusões, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Há pelo menos três sentidos essencias da palavra República... Se os confundirmos, estamos perdidos, nunca nos entenderemos. O sentido mais profícuo é o material ou substancial e intermédio: nem o que diz que todas as sociedades políticas o são (sentido hoje quase esquecido), nem o que identifica formalmente as repúblicas com todas as sociedades que não têm rei, sem lhes verificar requisitos éticos. Há um "quid" especial nas Repúblicas para quem é republicano. E que não tem nada a ver com o que nelas vêem os monárquicos ou os indiferentes (?)...


The Judge As Author / The Author As Judge, Ryan B. Witte Oct 2010

The Judge As Author / The Author As Judge, Ryan B. Witte

Golden Gate University Law Review

The first section of this Article discusses the judge as an author. This section begins with an examination of the audience for judicial opinions and an outline of the different styles of judicial opinion writing. The second section of this Article examines the advantages and disadvantages of using literary tools to advance the law. The third section of this Article explores the role of the author as a judge. This section will study a small number of judges who, in addition to the law, maintain outside lives as authors or creative writers. Judges who fit into this category include authors ...


Access To Justice In Times Of Fiscal Crisis, Chief Justice Ronald M. George Oct 2010

Access To Justice In Times Of Fiscal Crisis, Chief Justice Ronald M. George

Golden Gate University Law Review

Ronald M. George is the 27th Chief Justice of the California Supreme Court. He delivered this address at the Golden Gate University School of Law on October 20, 2009.


Dissent, Judge William A. Fletcher Oct 2010

Dissent, Judge William A. Fletcher

Golden Gate University Law Review

No abstract provided.