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Full-Text Articles in Jurisprudence

Standing In Barack Obama's Shoes: Evaluating The President's Jurisprudence Of Empathy In Light Of James Wilson's Jurisprudence Of “Common Sense”, John Rollert Aug 2010

Standing In Barack Obama's Shoes: Evaluating The President's Jurisprudence Of Empathy In Light Of James Wilson's Jurisprudence Of “Common Sense”, John Rollert

Student Scholarship Papers

This article explains what President Barack Obama meant when he called empathy an “essential ingredient” in judicial decision making and, thus, the outstanding quality he would look for in his Supreme Court nominees. It also provides a comparative study between Obama’s jurisprudence of empathy and Justice James Wilson’s jurisprudence of common sense in order to illustrate the dangers of deciding difficult Supreme Court cases with recourse to unconventional, extra-legal tools.


The Dual Foundation Of Universal Jurisdiction: Towards A Jurisprudence For The ‘Court Of Critique’, Itamar Mann Jan 2010

The Dual Foundation Of Universal Jurisdiction: Towards A Jurisprudence For The ‘Court Of Critique’, Itamar Mann

Student Scholarship Papers

This article revisits the case of The State of Israel v Adolph Eichmann and calls for renewed attention to the analysis of universal jurisdiction in this early example of it. Precisely because the Israeli court’s notion of universal jurisdiction is foreign to contemporary readers, it provides fresh guidance on a doctrine that has recently gained enormous importance in global politics. The Eichmann Opinion suggests a two-tiered test: among the cases satisfying the traditional conditions for universal jurisdiction, only those cases in which there is a political interest in pressing charges should be selected. As a world court with universal ...


Bush V. Gore As Precedent, Chad W. Flanders Mar 2007

Bush V. Gore As Precedent, Chad W. Flanders

Student Scholarship Papers

My essay treats the thorny question of the precedential value of Bush v. Gore from three angles. In the first part, I look at the history of the Supreme Court limiting its decisions to the facts of present case. The venture into history is designed to test the argument made by some that the language limiting the reach of Bush v. Gore is an innocuous example of narrowing the scope of the principle propounded in Bush, rather than an objectionable restriction of the ruling to only one unique set of circumstances ­ the circumstances of Bush v. Gore. The second part ...


Strict Criminal Liability Limiting The State's Power To Condemn, Andrew Verstein Jan 2003

Strict Criminal Liability Limiting The State's Power To Condemn, Andrew Verstein

Lecturer and Other Affiliate Scholarship Series

H. L. A. Hart argues that strict criminal liability often undermines the moral condemnation associated with punishment and therefore its capacity for deterrence. Hart explains that insofar as legal punishment expresses the "odium, if not the hostility" of a community towards those who break its laws strict liability forces us to either condemn those who are not deserving of condemnation or to negate the moral condemnation of the law in general. One choice is immoral and the other reduces the effectiveness of a significant deterrent and is therefore counterproductive. Either way, the consequences of strict liability are undesirable. In this ...


Pennsylvania's Clarifying Amendment For Declaratory Judgments, Edwin Borchard Jan 1944

Pennsylvania's Clarifying Amendment For Declaratory Judgments, Edwin Borchard

Faculty Scholarship Series

On May 26 1943, the Pennsylvania legislature adopted the following amendment to Section 6 of the Uniform Declaratory Judgments Act, originally enacted in 1923:1 Sec. 6: Relief by declaratory judgment or decree may be granted in all civil cases where an actual controversy exists between contending parties, or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied' that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there ...


Shall The Executive Agreement Replace The Treaty, Edwin Borchard Jan 1944

Shall The Executive Agreement Replace The Treaty, Edwin Borchard

Faculty Scholarship Series

In recent years many political leaders and publicists have sought to prove that the treaty-making process, requiring the "undemocratic." valid and desirable preferably without congressional approval or, by a majority of Congress. 1300 executive agreements have been concluded history, as contrasted 900 i8 that up to 1928 only 15 for good reasons; treaties have been amended by have benefited the nation.

BASES OF THE PROPOSALS FOR CHANGE

The recent proposals for a change in the Constitution, either with or without benefit of a constitutional amendment, have their origin in several grievances and are said to derive moral support from several ...


State Indemnity For Errors Of Criminal Justice, Edwin Borchard Jan 1941

State Indemnity For Errors Of Criminal Justice, Edwin Borchard

Faculty Scholarship Series

All too frequently the public is shocked by the news that Federal or State authorities have convicted and imprisoned a person subsequently proved to have been innocent of any crime. These accidents in the administration of the criminal law happen either through an unfortunate concurrence of circumstances or perjured testimony or are the result of mistaken identity, the conviction having been obtained by zealous prosecuting attorneys on circumstantial evidence. In an earnest effort to compensate in some measure the victims of these miscarriages of justice, Congress in May 1938 enacted a law "to grant relief to persons erroneously convicted in ...


Relation Between International Law And Municipal Law, Edwin Borchard Jan 1940

Relation Between International Law And Municipal Law, Edwin Borchard

Faculty Scholarship Series

Recent events on this continent make it seem appropriate once more to discuss the much – debated question of the relation between international law and municipal law. For one school, the dualists, municipal law prevails in case of conflict; for the other school, the monists international law prevails. There are two special features about the debate which warrant mention: first, that while the disputants do not widely differ in the ultimate solution of practical problems, they do differ considerably in their major premises and in the resulting theories; and second, that the attempt of various countries on occasion to escape the ...


Declaratory Judgments And Insurance Litigation, Edwin Borchard Jan 1939

Declaratory Judgments And Insurance Litigation, Edwin Borchard

Faculty Scholarship Series

The passage of the Federal Declaratory Judgments Act in 1934 has stimulated throughout the country the employment of the action for declaratory judgment In few branches of commercial activity has it been used more successfully than in insurance litigation. It would be hard to say whether this new device for the construction of written instruments and the clarification and adjudication of all types of legal relations has been more effectively used for the determination of disputed status, the construction of contracts, conflicting claims to property, or administrative law disputes between the Government and the citizen.


Recent Developments In Declaratory Relief, Edwin Borchard Jan 1936

Recent Developments In Declaratory Relief, Edwin Borchard

Faculty Scholarship Series

The way of the reformer, like that of the transgressor, is hard. It will be recalled that the Pennsylvania Supreme Court, after an excellent start in 1925 in the application of the procedure for a declaratory judgment in Karihey's Petition had fallen into regrettable error in a number of later cases by assuming that a declaratory judgment could· not be sought or granted when any other "established" remedy was available. This was in direct conflict with the express words of the Declaratory Judgments Act to the effect that declaratory judgments may be rendered "whether or not further relief is ...


An Indiana Declaratory Judgment, Edwin Borchard Jan 1936

An Indiana Declaratory Judgment, Edwin Borchard

Faculty Scholarship Series

It is an aphorism that the greatest enemies of law reform, and particularly of procedural reform, are the lawyers. A striking exemplification of the axiom may be found in Brindley v. Meara, decided by the Supreme Court of Indiana, November 18, 1935, 198 N. E. 301. That was the second of two appearances before the Supreme Court of the members of the advisory board of North Township, Lake County. They had already successfully brought an action for a declaratory judgment, construing a statute which determined that they and not the defendant, township trustee, had the power to select the persons ...


Justiciability, Edwin Borchard Jan 1936

Justiciability, Edwin Borchard

Faculty Scholarship Series

It might be supposed that justiciability, the very foundation of the judicial function, would be a matter on which courts could hardly differ. Yet there seems to be the greatest confusion among the courts as to when an issue is and is not susceptible of judicial decision. This is largely due to a devotion to phrases and symbols which make historical investigation and theoretical analysis seem an unnecessary encroachment on the judicial prerogative. The very system of stare decisis invites courts to relieve themselves of the necessity of thinking through again ostensible propositions which seem to have once received the ...


Taney's Influence On Constitutional Law, Edwin Borchard Jan 1936

Taney's Influence On Constitutional Law, Edwin Borchard

Faculty Scholarship Series

The hundredth anniversary of the elevation of Roger Brooke Taney to the post of Chief Justice of the Supreme Court affords a fitting occasion to review the significance of his judicial services to the nation and to American constitutional law. A re-examination of his life work in the perspective of history indicates how unwise it often is to form rigid judgments on men and events in the excitement of contemporary emotion, for the harsh opinions which Taney evoked by his decisions on the slavery question have been tempered in the detached light reason. The historical cloud under which his name ...


Federal Declaratory Judgments Act, Edwin Borchard Jan 1934

Federal Declaratory Judgments Act, Edwin Borchard

Faculty Scholarship Series

It is especially appropriate to publish in the Virginia Law Review the first extensive commentary on the Federal Declaratory Judgments Act. The credit for its enactment falls largely to ex-Governor, now Representative, Andrew J. Montague, of Virginia, who piloted the Act through the House of Representatives on four separate occasions. His persistence over a period of many years was finally rewarded when on June 14, 1934, President Roosevelt signed the Act (Pub. 343) giving the Federal Courts power to render such judgments.


Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard Jan 1934

Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard

Faculty Scholarship Series

Precedent and time are the creators and preservers of customary law. So strong is the force of habit in human behavior that man in doubt or distress instinctively turns to past experience to see how his forbears dealt with similar problems. The law, which is the cement holding together the social structure, is, in its evolution as a conservative force, of necessity driven to search for precedents and to profit by them in building certainty and thereby security. Without landmarks there is no system; and for the very reason that international law is deficient in its lack of a legislature ...


Declaratory Judgments In Administrative Law, Edwin Borchard Jan 1933

Declaratory Judgments In Administrative Law, Edwin Borchard

Faculty Scholarship Series

The declaratory judgment, now adopted in thirty-three American states and territories, has demonstrated its value in the speedy and effective determination of numerous controversies involving status, contracts and other written instruments, and property relations. Its utility in the adjudication of conflicting claims between the citizen and the administration, however, a field of litigation to which it is admirably suited, has not been fully appreciated. It is not merely its speed, inexpensiveness, and efficiency which commend the judicial declaration of rights in administrative law, nor yet the fact that it enables disputes to be determined in their incipiency before they have ...


Judicial Relief For Insecurity, Edwin Borchard Jan 1933

Judicial Relief For Insecurity, Edwin Borchard

Faculty Scholarship Series

In an earlier article' an attempt was made to criticize the narrowness of view which has limited the concept of "wrongs" and "cause of action” to committed delicts, and the concept of the judicial process, to their redress. This superficial view of legal relations and of the judicial function has obscured realization of the fact that harm is done and rights are impaired or jeopardized by mere dispute or challenge before and without any physical attack. The mere existence of an instrument, the denial of a right, the assertion of an unfounded claim, the existence of conflicting claims to the ...


Judicial Relief For Peril And Insecurity, Edwin Borchard Jan 1932

Judicial Relief For Peril And Insecurity, Edwin Borchard

Faculty Scholarship Series

In the United States, we are not accustomed to consider the theory of procedure as of profound importance. Possibly the extraordinary technicality of American procedure by reason of which substantive issues are so often relegated to practical oblivion by procedural tactics is in part responsible. At all events, the unsystematic and empirical method of embarking upon and concluding litigation seems to have developed a frame of mind somewhat indifferent to the theoretical function of the judicial process. For example, down to very recent days Justices of the United States Supreme Court gave expression to the view, now happily repudiated, that ...


Government Liability In Tort, Edwin Borchard Jan 1925

Government Liability In Tort, Edwin Borchard

Faculty Scholarship Series

Probably no function of a municipal corporation is more “governmental" in character than the care of its highways, streets and bridges. In theory, therefore, the city should be immune from responsibility for negligence in such matters; and such was the common law. Precisely the opposite result, however, constitutes the weight of judicial authority in this country, even in the absence of statue, on the commonly advanced ground that the duty of taking care of the public highways is ministerial in character. The conclusion deserves approval, though not necessarily the ground on which it is based. More difficult to support is ...


Strength And Weakness Of The New International Court, Edwin Borchard Jan 1922

Strength And Weakness Of The New International Court, Edwin Borchard

Faculty Scholarship Series

For an adequate understanding of the origin, jurisdiction and functions of the newly established court of international justice at the Hague, it will be necessary to revert to the two Hague Conferences of 1899 and 1907 and to examine the organization of the Permanent Court of Arbitration at the Hague created and developed at: those Conferences. The characteristic feature of the Court of Arbitration as distinguished from the new Permanent Court of Justice lies in the fact that the personnel of the former consists of an eligible list or panel, of which there are now some one hundred and twenty ...


Earning Of Freight On Uncompleted Voyages, Edwin Borchard Jan 1921

Earning Of Freight On Uncompleted Voyages, Edwin Borchard

Faculty Scholarship Series

An inevitable consequence of the Great War was the interruption or breaking up of commercial voyages it necessarily brought about. These acts of interference have occasioned much litigation on the question of the amount of freight earned by vessels thus rendered unable to complete their voyages, and have given renewed importance to an interesting subject of admiralty and contract law. The imagination has not conjured more varied and romantic circumstances than the actual facts of maritime adventure, as disclosed in the prosaic pages of the law reports. It may, therefore, be of interest to discover how the courts have dealt ...


Declaratory Judgment A Needed Procedural Reform, Edwin Borchard Jan 1918

Declaratory Judgment A Needed Procedural Reform, Edwin Borchard

Faculty Scholarship Series

It is now our purpose to undertake an analysis of numerous declaratory actions and judgments, with a view to determine the scope of and the limitations upon this useful form of procedure. An examination of declaratory judgments in the various jurisdictions in which the institution has been adopted reveals a remarkable similarity of fundamental principles characterizing the practice of making judicial declarations. As our interest is confined to the practice, emphasis will be laid not upon the- decision itself as a matter of substantive law, but rather upon the type of question submitted for declaratory judgment, the cases in which ...


Some Lessons From The Civil Law, Edwin Borchard Jan 1916

Some Lessons From The Civil Law, Edwin Borchard

Faculty Scholarship Series

The purpose of this brief article is not so much to set forth any specific institutions disclosed by a study of the civil law, as to point out some of those defects of our own system which are accentuated by comparison with the civil law, defects due to the methods rather than the substance of the common law. There is no desire to urge such a radical and perhaps impossible step as the substitution of civil law methods for our own; but in the consideration of plans for the improvement of our law, it may be profitable to observe that ...