Law Commons^™

A Populist Manifesto For Learning The Law, Eric E. Johnson

Journal of Legal Education

No abstract provided.

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

Abstract

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII. The anti-subordination principle “is most concerned with actions of a majority race to intentionally subjugate members of a minority race . . . it is when government serves to ‘perpetuate . . . the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is …

The Myth Of Religious Freedom: The Implications Of State Control Of Religious Expression In The Name Of Public Order, David N. Wagner

David N. Wagner

The state prevents certain religious expression in the name of public order. This article explores the state's role in providing an environment for persons to realize the fullness of their humanity as creatures made in the image and likeness of God.

Law As Referent, Craig G. Bateman

C. G. Bateman

In this article I suggest that “the Law,” (hereinafter the LAW) can be most functionally understood as a conglomeration of referent ideals which emanate from the minds of law creators, and are the source of what we regularly understand as laws. I separate from the concept of the LAW the usual suspects of constitutions, codes, acts, and charters, etc. I separate these from their inceptional ideals and suggest we ascribe a label to these familiar kinds of categories such as “lower order laws,” being careful to confine our discussions of them with the exclusive use of a small “l” (law), …

How The Global Crime Syndicates Fuel Planet Destruction, Global Alliance

Global Alliance

since 1945 more environmental planet destruction has been fuelled and financed with ever more leveraged debt than in the previous 60 million years - it's applied terrorism against the global life support system under the protection racket of a corrupt law profession

A Model Of Legal Systems As Evolutionary Networks: Normative Complexity And Self-Organization Of Clusters Of Rules, Carlo Garbarino

Carlo Garbarino

The paper draws both on legal theory and network science to explain how legal systems are structured and evolve. The basic proposition is that legal systems have a structure identifiable through a model of them in terms of networks of rules, and that their evolution is a property of their network structure. The paper is based on a model of rules which relies on the tenets of the network theory to describe how legal change unfolds within the network structure of legal systems. Section 1 presents an outline of current literature on the application of network theory to legal systems. …

Samantar V. Yousuf: Development In The Laws Governing Civil Torture Claims In U.S. Courts., Solomon Shinerock

Solomon B. Shinerock

The Supreme Court’s recent opinion in Samantar v. Yousuf forecloses one possible avenue by which former foreign-government officials residing in the United States have sought to escape liability for human rights violations. Ruling simply that the Foreign Sovereign Immunities Act of 1976 does not provide immunity to individuals, the decision raises the question of what common law principles will govern the issue in the future. This article reviews the case and the common law doctrines that are likely to figure prominently in future civil suits alleging torture. Ultimately, the Samantar decision read together with existing principles of domestic and international …

Reading The Product: Warnings, Disclaimers, And Literary Theory, Laura A. Heymann

Faculty Publications

No abstract provided.

Jefferson's "Laws Of Nature": Newtonian Influence And The Dual Valence Of Jurisprudence And Science, Allen P. Mendenhall

Allen Mendenhall

Jefferson appears to have conceived of natural law rather differently from his predecessors - namely, Saint Thomas Aquinas, Richard Hooker, Hugo Grotius, Samuel von Pufendorf, John Locke, and, among others, William Blackstone. This particular pedigree looked to divine decree or moral order to anchor natural law philosophy. But Jefferson’s various writings, most notably the Declaration and Notes on the State of Virginia, champion the thinking of a natural historian, a man who celebrated reason and scientific method, who extolled fact over fancy, material over the immaterial, observation over superstition, and experiment over divine revelation. They reveal, in other words, an …

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Patrick McKinley Brennan

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …

Rights, Privileges And Access To Information, Alina Ng

Alina Ng

Protecting property rights in creative works represent a classic institutional approach to a specific economic problem of non-rivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for the purposes of learning. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as new technologies emerge to provide users …

A Good Score?: Examining 20 Years Of Drug Courts In The United States And Abroad, Kimberly Y.W. Holst

Kimberly Y.W. Holst

In 2009, we saw the passing of the twentieth anniversary of drug courts in the United States, this timing presents an opportune moment to review the state of drug courts in the United States and the development of drug courts internationally. While the United States has served as a model and a leader in the creation and development of drug courts, countries all over the world have tweaked the United States’ model and have altered the landscape in the structure and development of drug courts. Section II of this article briefly discusses the development and current status of drug courts …

Lawyers' Ideal Psychological Type Preferences, Marko Novak

Marko Novak

By indicating typical characteristics of certain areas of law, it seems that we are able to indicate some ideal preferences that persons that are engaged in such have or should have. Moreover, when some specific characteristics are emphasized as typical, and if as such they have been proved historically as important for the well-functioning of a legal field, then such can be called preferred or even ideal. Thus, in this article, I am trying to indicate those preferences in lawyer’s psychological types that make them good lawyers generally, and also specifically regarding their special area of interest within law.

Judicial Discretion: A Look Back And A Look Forward Five Years After Booker, Erik Luna

Scholarly Articles

Not available.

Words, Meanings, And Plain Language Interpretation, John Zingarelli

John Zingarelli

Courts routinely decide cases in accordance with the Plain Language Rule, which requires a literal interpretation of statutes wherever such statements are clear and do not lead to a result manifestly at odds with the intent of the legislation. The rule directs that once a plain meaning has been obtained further interpretation should cease, and that a court should consider no non-statutory material that would serve to destabilize or change the plain meaning. The rule, however, ignores an insight that has become fundamental to lexicography. More than 250 years ago Samuel Johnson demonstrated in his Dictionary of the English Language …

Reaction Or Reformation?: Leo Strauss And American Constitutional Law, Andrew C. Spiropoulos

Andrew C. Spiropoulos

This article explains the importance of the work of the political theorist Leo Strauss to the study of American constitutional law. The foundation of Strauss's work was his belief that the civilization of the West faces a profound crisis. This crisis, he argued, was a crisis of modernity, by which he meant modern political philosophy. The nature of this crisis is the West's loss of faith in reason, the cornerstone of its way of life. This loss of faith threatens the intellectual, spiritual, and even physical health of the West. Strauss argued that this crisis came about because of the …

Never Say Never: Searching For Common Ground Between Muslim And Western Nations On The Issues Of Human Dignity And Human Rights, Travis Weber

Travis Weber

Travis Weber 3736 Silina Drive Virginia Beach, VA 23452 703-470-5411 tsweber@gmail.com May 4, 2010 To Whom It May Concern: Enclosed is an abstract for my article, entitled Never Say Never: Searching for Common Ground Between Muslim and Western Nations on the Issues of Human Dignity and Human Rights. My article examines the gap between Islamic and Western views of human rights, explores how this gap developed, and briefly reviews how different theories of jurisprudence would approach this gap. Due to the current world-wide increase in religious activity, including the prominence of Islam, and the version of morality that Islam brings …

Sodom's Shadow: The Uncertain Line Between Public And Private Morality, Todd E. Pettys

Todd E. Pettys

In citizens’ debates about issues of public policy, we frequently encounter what this Article calls the divine accountability thesis—the controversial claim that the divine realm will punish a city, state, or nation unless it performs or proscribes certain forms of conduct. Many of us reject that claim, but its persistent usage in numerous societies over the past five thousand years teaches us a great deal about citizens’ political self-conceptions. This Article begins by arguing that the divine accountability thesis illustrates human beings’ deeply ingrained tendency to regard their political communities as discrete moral entities, individually deserving of punishment or reward. …

Because The Cart Situates The Horse: Unrecognized Movements Underlying The Indian Supreme Court’S Internalization Of International Environmental Law, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

The text that follows is intended to serve as an examination of the approaches and methods employed by the Indian Supreme Court in its effort to integrate international environmental norms such as the principle of Sustainable Development, the Precautionary Principle and the Polluter Pays Principle as part of the existing body of binding, municipal rules in India. Virtually all of Indian legal jurisprudence that speaks to this subject has been developed by the Supreme Court. Likewise, in no small part for this contribution, the Court has developed a reputation for being an activist institution that has since the mid 1980s …

What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope J. Pether

Working Paper Series

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 Dialectic Of The Hurricane Katrina 9-11 Fund, Omari Sinclair

Omari Sinclair

This article unravels the dialectic concerning whether there should be a 9/11 fund for Hurricane Katrina victims. Part I illustrates the 9/11 fund's unique dynamic - a hybrid of both enterprise liability and corrective justice - and why such a fund was instituted for the victims of 9/11. Part II illustrates how Hurricane Katrina's similarities to 9/11 might warrant a similiar fund structure. Part III explains the implications of establishing such a fund for Hurricane Katrina victims. And Part IV elucidates whether this is a practicable option.

The Supreme Appointment: Visionaries Need Not Apply, Charles W. Rhodes

Charles W Rhodes

The recent announcement of Justice John Paul Stevens that he would retire at the end of the October 2009 Term has instigated the typical media frenzy of shortlists and speculation regarding the identity of the next nominee to the United States Supreme Court. Will President Barack Obama make a bold nomination of a liberal judicial visionary to battle Justices Scalia and Thomas? Will he nominate a political officeholder who will bring a new perspective on the role of the Court? Or will he follow the recent tradition of nominating a sitting federal appellate court judge with a prestigious academic and …

Modal Retributivism: A Theory Of Sanctions For Attempts And Other Criminal Wrongs, Anthony M. Dillof

Anthony M. Dillof

How much punishment, in terms of size and severity, should a person get committing for a given offense? Operating in a deontological framework, the article attempts to answer the question of criminal punishment severity in a unified, principled manner. There is a wide-spread intuition that when it comes to figuring out what punishment a person deserves, &#;harm matters.&#; The idea that Aharm matters@ is the basis for harm-based retributivism. The article begins by critiquing harm-based retributivism. Proponents of harm-based retributivism believe that attempts should be punished less than completed offenses, but how much less? One-half? Three-quarters? The problem with harm-based …

Revitalizing The Adversary System In Family Law, Jane C. Murphy

All Faculty Scholarship

The way in which families resolve disputes has undergone dramatic change over the last decade. Scholars have focused much attention on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. But less attention has been paid to the enormous changes that have taken place in the processes surrounding family dispute resolution. These changes have been even more comprehensive and have fundamentally altered the way in which disputing families interact with the legal system. Both the methods and goals of legal intervention for families in conflict have changed, …

The Dance Of Death Or (Almost) No One Here Gets Out Alive: The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume

South Carolina Law Review

No abstract provided.

A Survey Of The Fourth Circuit's Developing Government-Speech Jurisprudence, M. Todd Carroll, Kevin A. Hall

South Carolina Law Review

No abstract provided.

The Wild West Of Supreme Court Employment Discrimination Jurisprudence, Henry L. Chambers Jr.

South Carolina Law Review

No abstract provided.

Clarifying Causation In Tort, Erik S. Knutsen

Dalhousie Law Journal

This article argues that there is nothing overly confusing about the law ofcausation in negligence. It attempts to define the current state of causation in Canadian negligence law with a simple goal in mind: to have a clearer more productive conversation about the law with the fundamental concepts clearly on the table. The author argues that while the leading decisions on causation are often couched in broad-based, universal terminology to refrain from inhibiting conceptual portability,the cases can be read as a sustained continuum of conversations about causation. A cohesive framework for the law is offered by taking a longitudinal perspective …

Exploring A New Paradigm For Women's Rights, Rebecca Zietlow

Rebecca E Zietlow

Nearly forty years after the Supreme Court recognized gender as a suspect class under the Equal Protection Clause of the Fourteenth Amendment, and almost half a century after the 1964 Civil Rights Act guaranteed women the right to work free of sex discrimination, women still find found gender equality to be an elusive goal. The persistent gender gap in wages and the continued prevalence of domestic violence are two indications that the predominant model of equality law, based in the Equal Protection Clause, is simply not adequate to address women’s inequality in our society.

The book GENDER EQUALITY: DIMENSIONS OF …

Missclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Jeffrey W. Stempel, Hazel Glenn Beh

Jeffrey W Stempel

Insurance policies are traditionally classified as unilateral or “reverse-unilateral” contracts, a characterization we find largely incorrect, with problematic consequences for adjudication of insurance coverage disputes. In addition to the general difficulties attending the unilateral classification, the concept as applied to insurance policies is not only unhelpful but also introduces error and inconsistency into the litigation of insurance controversies. In particular, the unilateral view tends toward excessive formalism and focus on so-called “conditions” precedent to coverage, eschewing material breach analysis and encouraging needless forfeitures as well as unwisely removing the concept of anticipatory repudiation and corresponding remedy from insurance law. Categorizing …