Law Commons^™

Penumbras And Privacy: A Study Of The Use Of Fictions In Constitutional Decision-Making, James B. Stoneking

West Virginia Law Review

No abstract provided.

Confronting Uncertainty In Child Abuse Adjudication: A Contextual Analysis Of Theories Of The Judical Role In A Changing Society, Lawrence W. Cohen

Antioch Law Journal

Throughout history scholars have attempted to defend myriad conceptions of the judicial role. For instance, Corwin believed that law, embodied in nature, was to be discovered by judges.1 Cardozo also envisioned an active judiciary, responsible for keeping law consistent with the mores of the day.2 Wigmore, on the other hand, felt that personalizing justice through judicial discretion is the "antithesis of the Anglo-Saxon conception of justice."' 3 Rather, justice, if attainable at all, must be achieved through strict rule application. 4 Whereas 19th-century scholarship focused on formal rules, recent authorities have turned to contemplating how legal decisions are made and …

Evolutionary Models In Jurisprudence, Herbert J. Hovenkamp

All Faculty Scholarship

Few ideas in intellectual history have been so captivating that they have overflowed the discipline from which they came and spilled over into everything else. The theory of evolution is unquestionably one of these. Evolution was an idea so powerful that it seemed obvious when Charles Darwin offered it. After all, there were prominent evolutionists a century before Darwin. Charles Darwin merely presented a model that made the theory plausible. It was a model, though, that infected everything, and one that appeared to answer every question worth asking, no matter what the subject. The model had the potential to lead …

Whither Jurisprudence?, Anthony D'Amato

Faculty Working Papers

After considering the side road of critical legal studies, I shall try to indicate the major signposts to a more complete jurisprudence. These signposts take the form of questions or anomalies in our present understanding of law. I will conclude that only by following these signposts, by exploring these questions and anomalies, will we begin to uncover the nature of law and justice.

The Formulaic Constitution, Robert F. Nagel

Publications

The Supreme Court's constitutional jurisprudence of late has been filled with formulae - tests that must be met, hurdles that must be overcome. This multi-pronged analytical technique is, according to Professor Nagel, distancing the Justices from both their audience, the American public, and their text, the Constitution. In an effort to retain the authority of that text, the Court is instead displacing it; in an effort to persuade that audience, the Court is instead excluding it. Furthermore, the Court's attempt to constrain judges has actually created an irresponsible judicial freedom, while its attempt to locate a middle ground between the …

The Indeterminacy Of The Law: Critical Legal Studies And The Problem Of Legal Explanation, Charles M. Yablon

Articles

No abstract provided.

Paul, The Lawyer, On Law, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

English Common Law In Virgina, William Hamilton Bryson

Law Faculty Publications

By statute the common law of England is the basis of the common law of modern Virginia. This reception statute refers to the customary, unwritten law of the kingdom of England, but only that part which was general and common to all parts of England. That the English common law is the foundation of the law of Virginia is a matter not merely of a modern statute but also of history and reason.

Rules And Standards, Pierre Schlag

Publications

No abstract provided.

Framers Intent: The Illegitimate Uses Of History, Pierre Schlag

Publications

No abstract provided.

Interjurisdictional Preclusion And Federal Common Law: Toward A General Approach, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Modern American Jurisprudence And The Problem Of Power, Arthur J. Jacobson

Articles

No abstract provided.

Manners, Metaprinciples, Metapolitics And Kennedy's Form And Substance, William W. Bratton

All Faculty Scholarship

No abstract provided.

The Future Of The Common Law Tradition, Alan Watson

Scholarly Works

What, then, can one say about the common law tradition as it will develop in the relatively near future? In terms of the future development of the common law systems, three facts seem certain and decisive. In the first place, there has been, as a matter of observable fact, a great shift in the balance of lawmaking in the common law world from judicial precedent to legislation, which together comprise the two main sources of law. In the second place, there is a deep awareness in the common law countries of a crisis in lawmaking, an awareness that is probably …

Taking Needs Seriously: Observations On The Necessity For Constitutional Change, Arthur S. Miller

Washington and Lee Law Review

No abstract provided.

Thoughts On Decisionmaking, Patricia M. Wald

West Virginia Law Review

No abstract provided.

The Inadequacy Of Legal Remedy Requirement For Equitable Relief: The Development Of The Rule And Its Application In South Carolina, Val H. Stieglitz

South Carolina Law Review

No abstract provided.

A Response To D.A.J. Richards' Defense Of Freewheeling Constitutional Adjudication, Raoul Berger

Indiana Law Journal

No abstract provided.

Obligation: Not To The Law But To The Neighbor, Milner S. Ball

Scholarly Works

In this article I will first address the strongest yet still unsatisfactory argument for an obligation to obey the law, the argument that the government and its officers are obligated to obey the law. I will then consider the weaker, more satisfactory argument that citizens have an obligation to obey the law. I will conclude by taking up the issue that I find more interesting and important: the absence of a biblical basis for an obligation to obey the law.

Justice, Mercy, And Craziness, Stephen J. Morse

All Faculty Scholarship

No abstract provided.

Mistaken Assumptions And Misunderstandings Of Contracting Parties - Louisiana Legislation And Jurisprudence, George L. Bilbe

Louisiana Law Review

No abstract provided.

Review Essay On Becoming And Being A Prosecutor, Martin H. Belsky

Akron Law Faculty Publications

A prosecutor is a detective, a litigator, a manager, and a policymaker. He is responsible for investigating illegalities' and is permitted to use specially assigned tools-a grand jury or subpoena-to acquire information and evidence. As a litigator, he is counsel for an artificial client-the government or people-but also the representa- tive of identifiable victims. Moreover, though he functions in an adversary system, he must temper his advocacy and zeal. His goal is not merely to "win," but also to see that "justice is done."

The prosecutor must manage an increasing set of responsibilities in a complex and often arbitrary system, …

The Economics And Jurisprudence Of Convertible Bonds, William W. Bratton

All Faculty Scholarship

Professor Bratton examines judicial regulation of issuer-bondholder conflicts of interest within three different, but closely related doctrinal frameworks: neoclassical contract interpretation; contract avoidance; and corporate law fiduciary restraint. After discussing the elements of convertible bond valuation and their interaction with issuer actions giving rise to conflicts of interest, he evaluates the case for judicial intervention to protect bondholder interests. He concludes that ·bondholder protective intervention is fair and tolerably efficient, provided it is kept within the bounds of contract interpretation. But he finds that more aggressive judicial intervention under the frameworks of contract avoidance and fiduciary restraint carries an unnecessary …

Review Essay On Becoming And Being A Prosecutor, Martin H. Belsky

Martin H. Belsky

A prosecutor is a detective, a litigator, a manager, and a policymaker. He is responsible for investigating illegalities' and is permitted to use specially assigned tools-a grand jury or subpoena-to acquire information and evidence. As a litigator, he is counsel for an artificial client-the government or people-but also the representa- tive of identifiable victims. Moreover, though he functions in an adversary system, he must temper his advocacy and zeal. His goal is not merely to "win," but also to see that "justice is done."

The prosecutor must manage an increasing set of responsibilities in a complex and often arbitrary system, …

The Utilitarian Imperative: Autonomy, Reciprocity, And Evolution, Leonard G. Ratner

Hofstra Law Review

No abstract provided.

Law And Language: An Historical And Critical Introduction, Peter Goodrich

Articles

No abstract provided.

Legislative Formality, Administrative Rationality, Harold H. Bruff

Publications

No abstract provided.

Imputed Criminal Liability, Paul H. Robinson

All Faculty Scholarship

Typically, the set of elements defining a crime comprise what may be called the paradigm of liability for that offense: An actor is criminally liable if and only if the state proves all these elements. The paradigm of an offense, however, does not always determine criminal liability. Even where all the elements of the paradigm are proven, rules and doctrines create exceptions that affect criminal liability. Some exceptions, such as insanity, duress, and law enforcement authority, can exculpate an actor even though his conduct and state of mind satisfy the paradigm for the offense charged. Such exculpating exceptions are grouped …

A Response To Fish And White, Richard H. Weisberg

Articles

No abstract provided.

Toward A Critical Jurisprudence-A First Step By Way Of The Public-Private Distinction In Constitutional Law, Kenneth M. Casebeer

University of Miami Law Review

No abstract provided.