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Articles 1 - 5 of 5
Full-Text Articles in Jurisprudence
The Tenuous Case For Conscience, Steven D. Smith
The Tenuous Case For Conscience, Steven D. Smith
University of San Diego Public Law and Legal Theory Research Paper Series
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …
Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus
Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus
University of San Diego Public Law and Legal Theory Research Paper Series
“The political liberty of the subject,” said Montesquieu, “is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu’s constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could …
The Birth Of A Logical System: Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster
The Birth Of A Logical System: Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster
ExpressO
Much of what we recognize as contemporary administrative law emerged during the 1920s and 1930s, a period when a group of legal academics attempted to aid Progressive Era and New Deal regulatory efforts by crafting a legitimating system for the federal administrative state. Their system assigned competent, expert institutions—most notably administrative agencies and the judiciary—well-defined roles: Agencies would utilize their vast, specialized knowledge and abilities to correct market failures, while courts would provide a limited but crucial oversight of agency operations. This Article focuses both on this first generation of administrative law scholarship, which included most prominently Felix Frankfurter and …
Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf
Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf
ExpressO
No abstract provided.
Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford
Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford
ExpressO
The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …