Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Blackstone (3)
- Law and humanities (3)
- Legal history (3)
- Judicial decisionmaking (2)
- Legal reasoning (2)
-
- Animal rights (1)
- Bentham (1)
- Civil rights (1)
- Commentaries (1)
- Common law (1)
- Constitutional interpretation (1)
- Constitutional law (1)
- Courts (1)
- Creativity (1)
- Dworkin (Ronald) (1)
- Hart/Dworkin dispute (1)
- Judges (1)
- Judicial behavior (1)
- Judicial technique (1)
- Jurisprudence (1)
- Law & culture (1)
- Law and culture (1)
- Law and literature (1)
- Legal authority (1)
- Legal culture (1)
- Legal decisionmaking (1)
- Legal personhood (1)
- Legal philosophy (1)
- Legal positivism (1)
- Legal reform (1)
Articles 1 - 5 of 5
Full-Text Articles in Jurisprudence
Rules, Tricks And Emancipation, Jessie Allen
Rules, Tricks And Emancipation, Jessie Allen
Book Chapters
Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …
Blackstone, Expositor And Censor Of Law Both Made And Found, Jessie Allen
Blackstone, Expositor And Censor Of Law Both Made And Found, Jessie Allen
Book Chapters
Jeremy Bentham famously insisted on the separation of law as it is and law as it should be, and criticized his contemporary William Blackstone for mixing up the two. According to Bentham, Blackstone costumes judicial invention as discovery, obscuring the way judges make new law while pretending to uncover preexisting legal meaning. Bentham’s critique of judicial phoniness persists to this day in claims that judges are “politicians in robes” who pick the outcome they desire and rationalize it with doctrinal sophistry. Such skeptical attacks are usually met with attempts to defend doctrinal interpretation as a partial or occasional limit on …
Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen
Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen
Book Chapters
If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through …
Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman
Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman
Book Chapters
Once again, life tenure for Supreme Court Justices is under attack. The most prominent proposal for reform is to adopt a system of staggered non-renewable terms of 18 years, designed so that each President would have the opportunity to fill two vacancies during a four-year term. This book chapter, based on a presentation at a conference at Duke Law School, addresses the criticisms of life tenure and analyzes the likely consequences of moving to a system of 18-year staggered terms for Supreme Court Justices.
One of the main arguments for term limits is, in essence, that the Supreme Court should …
Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute, Philip Soper
Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute, Philip Soper
Book Chapters
Confronted with standards beyond those obvious in purpose and rule, the positivist, says Dworkin, has two choices. He must either claim that such standards are only discretionary and hence not legally binding, or he may concede their binding status and argue that he identifies them as legal standards through reference, in some more complex way, to his theoretical master test.
There is, however, a third possibility. The positivist might admit that some standards bind judges but explain that they play a role in the legal system sufficiently different from that of ordinary rules and principles to justify excluding them from …