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Articles 1 - 12 of 12

Full-Text Articles in Jurisprudence

The Hollowness Of The Harm Principle, Steven D. Smith Dec 2011

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any ...


Holmes And Dissent, Allen P. Mendenhall Nov 2011

Holmes And Dissent, Allen P. Mendenhall

Allen Mendenhall

Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Holmes’s dissents were sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative ...


Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom Oct 2011

Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom

Robert M. Bloom

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court ...


Copyright Opinions And Aesthetic Theory, Alfred C. Yen Oct 2011

Copyright Opinions And Aesthetic Theory, Alfred C. Yen

Alfred C. Yen

In this Article the author contends that judges should be conscious of aesthetics when deciding copyright cases. However, given the inherent ambiguity of aesthetics and the supposedly objective rules and principles that govern judicial opinions, courts implicitly assume a sharp divide between aesthetic reasoning and legal reasoning. Additionally, because aesthetic choices by judges could potentially be deemed government censorship, the two are further considered incompatible. The author argues, however, that this distinction is illusory in that a truly open-minded copyright jurisprudence requires explicit awareness of aesthetics. This argument is supported firstly by a description of four major movements from aesthetic ...


Restitution For Wrongs And The Restatement (Third) Of The Law Of Restitution, James S. Rogers Oct 2011

Restitution For Wrongs And The Restatement (Third) Of The Law Of Restitution, James S. Rogers

James S. Rogers

The law of restitution has been the forgotten step-child of American private law for many decades. The American Law Institute’s current project to produce a new restatement of the law of restitution holds the promise of bringing the subject to the foreground and removing some of the confusion that many lawyers and judges feel in approaching the topic. One of the important issues that must be addressed in any comprehensive treatment of the law of restitution is how to treat those areas where the possibility of recovery based on the unjust enrichment principle overlaps with recovery based on the ...


Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder Sep 2011

Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder

Mary Sarah Bilder

Written as a comment on Philip Hamburger's book, Law and Judicial Duty, this essay explains why the history of judicial review remains a difficult area for scholarship. American judicial tradition espoused that judges had an obligation to declare as void laws repugnant to the constitution. The essay suggests that the source of this duty, as well as the meaning of both the constitution and laws of the land, changed over time. The essay proposes that scholars perceived American judicial review as problematic only when this tradition conflicted with an increasingly rigid belief in separation of powers. The essay concludes ...


Why We Have Judicial Review, Mary Sarah Bilder Sep 2011

Why We Have Judicial Review, Mary Sarah Bilder

Mary Sarah Bilder

This paper accompanies Mary Sarah Bilder, The Corporate Origins of Judicial Review , 116 Yale L.J. 502 (2006), in which the author argues that the origins of judicial review lie not in the expansion of judicial power but rather in the prior practice of commitment to limited legislative authority.


Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan Aug 2011

Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan

Donald J. Kochan

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs. Only when conclusion is suspended is there space for the exploration of the subject at hand. The thinker must ...


Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan Jul 2011

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must affirmatively go ...


All Things In Proportion? American Rights Doctrine And The Problem Of Balancing, Alec Stone Sweet Dec 2010

All Things In Proportion? American Rights Doctrine And The Problem Of Balancing, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.


On Equality: The Anti-Interference Principle, Donald J. Kochan Dec 2010

On Equality: The Anti-Interference Principle, Donald J. Kochan

Donald J. Kochan

This Essay introduces the “Anti-Interference Principle” – a new term on the meaning of equality, or at least one not yet so-named in the equality lexicon – as a necessary foundation for achieving the goal of true equality. Equality has a long-standing place in the discussion of politics and jurisprudence and remains a struggle of definition today. Rather than rehash the mass of scholarship, this Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. It argues ...


While Effusive, "Conclusory" Is Still Quite Elusive: The Story Of A Word, Iqbal, And A Perplexing Lexical Inquiry Of Supreme Importance, Donald J. Kochan Dec 2010

While Effusive, "Conclusory" Is Still Quite Elusive: The Story Of A Word, Iqbal, And A Perplexing Lexical Inquiry Of Supreme Importance, Donald J. Kochan

Donald J. Kochan

The meaning of the word “conclusory” seems really, quite elusory. Conclusory is a widespread, common, and effusive word in the modern legal lexicon. Yet you would not necessarily know that by looking through many dictionaries. “Conclusory” has been a late comer to the pages of most dictionaries. Even today, not all dictionaries include the word “conclusory”, those that do have only recently adopted it, and the small number of available dictionary definitions seem to struggle to capture the word’s usage in the legal world. Yet the word “conclusory” has taken center stage in the procedural plays of civil litigation ...