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Articles 31 - 60 of 62

Full-Text Articles in Jurisprudence

Positivism And The Notion Of An Offense, Claire Oakes Finkelstein Jan 2000

Positivism And The Notion Of An Offense, Claire Oakes Finkelstein

All Faculty Scholarship

While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under …


When The Rule Swallows The Exception, Claire Oakes Finkelstein Jan 2000

When The Rule Swallows The Exception, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.


Why The Successful Assassin Is More Wicked Than The Unseccessful One, Leo Katz Jan 2000

Why The Successful Assassin Is More Wicked Than The Unseccessful One, Leo Katz

All Faculty Scholarship

No abstract provided.


Coercing Privacy, Anita L. Allen Mar 1999

Coercing Privacy, Anita L. Allen

All Faculty Scholarship

No abstract provided.


Threats And Preemptive Practices, Claire Oakes Finkelstein Jan 1999

Threats And Preemptive Practices, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.


The Architecture Of Judicial Independence, Stephen B. Burbank Jan 1999

The Architecture Of Judicial Independence, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.


Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz Jan 1999

Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz

All Faculty Scholarship

Economists and philosophers working on problems of rational choice have for some time been concerned with various puzzles raised by so-called "Ullysean" configurations: actors who rationally cause themselves to act irrationally. (e.g., the person who swallows Thomas Schelling's famous irrationality pill to preempt an attempted robbery). What has attracted less attention is that these configurations present fascinating problems for morality, most especially for non-consequentialist morality. This article undertakes the exploration of some of these problems and the implications they hold for the morality of preemptive detention, preemptive self-defense, the creation of prophylactic crimes (like our drug laws) and a variety …


The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer Jan 1999

The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer

All Faculty Scholarship

No abstract provided.


Crazy Reasons, Stephen J. Morse Jan 1999

Crazy Reasons, Stephen J. Morse

All Faculty Scholarship

No abstract provided.


Retroactivity And Legal Change: An Equilibrium Approach, Jill E. Fisch Jan 1997

Retroactivity And Legal Change: An Equilibrium Approach, Jill E. Fisch

All Faculty Scholarship

In this Article, Professor Fisch assesses currrent retroactivity doctrine and proposes a new framework for retroactivity analysis. Current law has failed to reflect the complexity of defining retroactivity and to harmonize the conflicting concerns of efficiency and fairness that animate retroactivity doctrine. By drawing a sharp distinction between adjudication and legislation, the law has also overlooked the similarity of the issues that retroactivity raises in both contexts. Professor Fisch's analysis, influenced by the legal process school, uses an equilibrium approach to connect retroactivity analysis to theories of legal change. Instead of focusing on the nature of the new legal rule, …


On A New Theory Of Justice, William Ewald Jan 1994

On A New Theory Of Justice, William Ewald

All Faculty Scholarship

No abstract provided.


Conviction Without Imposition: A Response To Professor Greenawalt, Samuel W. Calhoun Jan 1992

Conviction Without Imposition: A Response To Professor Greenawalt, Samuel W. Calhoun

Scholarly Articles

None available.


The Myth Of Retributive Justice, Brian Slattery Jan 1992

The Myth Of Retributive Justice, Brian Slattery

Articles & Book Chapters

In fairy tales, villains usually come to a bad end, snared in a trap of their own making, or visited with a disaster nicely suited to their particular villainy. Read a story of this kind to children and you will be struck by the profound satisfaction with which this predictable of events is greeted. Yet, if children cheer when the villain is done in, they are just as satisfied when the hero manages to get the villain by the throat but takes pity and spares him. These tales of retribution and mercy, even reduced to their barest bones, seem to …


The Jurisprudence Of Jane Eyre, Anita L. Allen Jan 1992

The Jurisprudence Of Jane Eyre, Anita L. Allen

All Faculty Scholarship

No abstract provided.


Tort Law As A Comparative Institution, Claire Oakes Finkelstein Jan 1992

Tort Law As A Comparative Institution, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.


The World In Our Courts, Stephen B. Burbank May 1991

The World In Our Courts, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.


Reaction To Terrorism: A Jewish Law Caveat, J. David Bleich Apr 1989

Reaction To Terrorism: A Jewish Law Caveat, J. David Bleich

Articles

No abstract provided.


Government "Largesse" And Constitutional Rights: Some Paths Through And Around The Swamp, Seth F. Kreimer Jan 1989

Government "Largesse" And Constitutional Rights: Some Paths Through And Around The Swamp, Seth F. Kreimer

All Faculty Scholarship

No abstract provided.


The Doctrine Of Accommodation In The Jurisprudence Of The Religion Clauses, Sarah Barringer Gordon, Arlin M. Adams Jan 1988

The Doctrine Of Accommodation In The Jurisprudence Of The Religion Clauses, Sarah Barringer Gordon, Arlin M. Adams

All Faculty Scholarship

No abstract provided.


The Costs Of Complexity, Stephen B. Burbank Apr 1987

The Costs Of Complexity, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.


The Moral Dilemma Of Positivism, Anthony D'Amato Jan 1986

The Moral Dilemma Of Positivism, Anthony D'Amato

Faculty Working Papers

I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labelling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have …


Interjurisdictional Preclusion, Full Faith And Credit And Federal Common Law: A General Approach, Stephen B. Burbank Jan 1986

Interjurisdictional Preclusion, Full Faith And Credit And Federal Common Law: A General Approach, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.


Paul, The Lawyer, On Law, Jerome Hall Jan 1985

Paul, The Lawyer, On Law, Jerome Hall

Articles by Maurer Faculty

No abstract provided.


Interjurisdictional Preclusion And Federal Common Law: Toward A General Approach, Stephen B. Burbank Jan 1985

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

All Faculty Scholarship

No abstract provided.


Manners, Metaprinciples, Metapolitics And Kennedy's Form And Substance, William W. Bratton Jan 1985

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

All Faculty Scholarship

No abstract provided.


Evolutionary Models In Jurisprudence, Herbert J. Hovenkamp Jan 1985

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 …


Justice, Mercy, And Craziness, Stephen J. Morse Jul 1984

Justice, Mercy, And Craziness, Stephen J. Morse

All Faculty Scholarship

No abstract provided.


The Economics And Jurisprudence Of Convertible Bonds, William W. Bratton Jan 1984

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 …


Lon Fuller And Substantive Natural Law, Anthony D'Amato Jan 1981

Lon Fuller And Substantive Natural Law, Anthony D'Amato

Faculty Working Papers

I will contend that Fuller's secular or "procedural" natural law, as described by Moffat, does not cover the theoretical position that could be occupied by a substantive natural lawyer, that such a theoretical position is viable today, and that there are some key elements in Fuller's theory that actually conflict with substantive natural law and might therefore be criticized from that perspective.


The Twilight Of Welfare Criminology, Stephen J. Morse Jan 1977

The Twilight Of Welfare Criminology, Stephen J. Morse

All Faculty Scholarship

No abstract provided.