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Full-Text Articles in Jurisprudence

Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle Jan 2009

Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle

Articles by Maurer Faculty

Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.

In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to …


Questioning Intervention Of Right -- Toward A New Methodology Of Decisionmaking, Gene R. Shreve Jan 1980

Questioning Intervention Of Right -- Toward A New Methodology Of Decisionmaking, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.


Assumption Of Risk In A Comparative Negligence System-- Doctrinal, Practical, And Policy Issues, Daniel O. Conkle Jan 1978

Assumption Of Risk In A Comparative Negligence System-- Doctrinal, Practical, And Policy Issues, Daniel O. Conkle

Articles by Maurer Faculty

The adoption of a new principle of law invariably impinges upon related legal concepts, raising issue that were not considered when the law was changed. The adoption of comparative negligence, a drastic departure from the long-held principle of contributory negligence, has forced courts to consider how the related concept of assumption of risk is affected by the change. Because there are different types of assumption of risk, and various doctrinal, practical, and policy issues, a proper determination of the role for assumption of risk in a comparative negligence system depends upon a thorough examination of many relevant considerations. Unfortunately, two …


The Balance Sheet Of Law And Religion, Frank E. Horack Jr. Jan 1946

The Balance Sheet Of Law And Religion, Frank E. Horack Jr.

Articles by Maurer Faculty

No abstract provided.