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Articles 61 - 90 of 356
Full-Text Articles in Jurisprudence
Modest Retributivism, Mitchell N. Berman
Modest Retributivism, Mitchell N. Berman
All Faculty Scholarship
No abstract provided.
Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan
Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan
Donald J. Kochan
The Liberal As An Enemy Of Queer Justice, Craig Schamel
The Liberal As An Enemy Of Queer Justice, Craig Schamel
Catalyst: A Social Justice Forum
Abstract
Liberalism as a historical mode of the political is the context in which the movement and ensuing struggle for queer justice emerged in most Western countries. The terminology, practices, tendencies, beliefs, ethics, laws, and patterns of political and social life which have been determined by this mode of the political, it is argued, are inimical to queer justice and render its achievement impossible. Liberalism as a mode of the political is approached from below, from knowledge gained in practical experience in queer groups which considered themselves revolutionary at least to some degree, and from the effects on such groups …
The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud
The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud
François Tanguay-Renaud
Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.
An Essay On Private Remedies, Emily Sherwin
Judge Posner’S Simple Law, Mitchell N. Berman
Judge Posner’S Simple Law, Mitchell N. Berman
All Faculty Scholarship
The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.
Posner’s diagnoses and prescriptions range widely—from the Bluebook …
Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan
Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan
Donald J. Kochan
Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
Donald J. Kochan
Theories And Practices Of Islamic Finance And Exchange Laws: Poverty Of Interest, Ahmed E. Souaiaia
Theories And Practices Of Islamic Finance And Exchange Laws: Poverty Of Interest, Ahmed E. Souaiaia
Ahmed E SOUAIAIA
Catalogs, Gideon Parchomovsky, Alex Stein
Catalogs, Gideon Parchomovsky, Alex Stein
All Faculty Scholarship
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …
Asymmetric Empirical Similarity, Joshua C. Teitelbaum
Asymmetric Empirical Similarity, Joshua C. Teitelbaum
Georgetown Law Faculty Publications and Other Works
The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.
Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay
Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay
Faculty Scholarship
No abstract provided.
Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman
Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman
All Faculty Scholarship
No abstract provided.
Law, Objectives Of Government And Regimes Of Truth: Foucault’S Understanding Of Law And The Transformation Of The Law Of The Eu Internal Market, Leila Brännström
Law, Objectives Of Government And Regimes Of Truth: Foucault’S Understanding Of Law And The Transformation Of The Law Of The Eu Internal Market, Leila Brännström
Leila Brännström
Drawing on Security, Territory, Population and The Birth of Biopolitics, this article aims, firstly, to consolidate our understanding of Foucault’s engagement with law by fleshing out his approach to law and by clarifying that he distinguishes between different kinds of law on the basis of the objectives that law serves and the regime of truth that it embodies. Secondly, using this understanding, the article proceeds to illustrate how the objectives and the regime of truth of the EU internal market law have been displaced in the last few decades. It is argued that this body of law has increasingly come …
The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan
The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan
Donald J. Kochan
Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan
Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan
Donald J. Kochan
Written for the Chapman Law Review Symposium on “What Can Law & Economics Teach Us About the Corporate Social Responsibility Debate?,” this Article applies the lessons of public choice theory to examine corporate social responsibility. The Article adopts a broad definition of corporate social responsibility activism to include both (1) those efforts that seek to convince corporations to voluntarily take into account corporate social responsibility in their own decision-making, and (2) the efforts to alter the legal landscape and expand legal obligations of corporations beyond traditional notions of harm and duty so as to force corporations to invest in interests …
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
David Ingram
It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …
Holmes, Cardozo, And The Legal Realists: Early Incarnations Of Legal Pragmatism And Enterprise Liability, Edmund Ursin
Holmes, Cardozo, And The Legal Realists: Early Incarnations Of Legal Pragmatism And Enterprise Liability, Edmund Ursin
San Diego Law Review
The theory of enterprise liability is associated with the tort lawmaking of the liberal California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This Article explains that early incarnations of each can be found in the works of four giants in American law: Justice Oliver Wendell Holmes, Judge—later Justice—Benjamin Cardozo, and the Legal Realists Leon Green and Karl Llewellyn. As will be seen, these scholars and judges shared a common view of the lawmaking role of courts. Stated simply, this shared view was that judges are lawmakers and policy …
The Role Of The Federal Judge In The Constitutional Structure: An Originalist Perspective, Diarmuid F. O'Scannlain
The Role Of The Federal Judge In The Constitutional Structure: An Originalist Perspective, Diarmuid F. O'Scannlain
San Diego Law Review
Join me now in examining some of the structural features of our Constitution. And let’s do so by focusing upon cases that have come before my court—the United States Court of Appeals for the Ninth Circuit, the second highest federal court in the land, inferior only to the Supreme Court of the United States. My goal is to present, in modest outline, an originalist perspective on the federal judge’s role, particularly my role as a circuit judge, in the constitutional order.
A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz
A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz
Justin Schwartz
Just as Marx's insights into capitalism have been most strikingly vindicated by the rise of neoliberalism and the near-collapse of the world economy, Marxism as social movement has become bereft of support. Is there any point in people who find Marx's analysis useful in clinging to the term "Marxism" - which Marx himself rejected -- at time when self-identified Marxist organizations and societies have collapsed or renounced the identification, and Marxism own working class constituency rejects the term? I set aside bad reasons to give on "Marxism," such as that the theory is purportedly refuted, that its adoption leads necessarily …
To Compete Globally, Brics Nations Need Reputation, Not Imitation, Ahmed E. Souaiaia
To Compete Globally, Brics Nations Need Reputation, Not Imitation, Ahmed E. Souaiaia
Ahmed E SOUAIAIA
The economic, political, and social rise of the Western block of nations was founded on the single most enduring currency: reputation. Reputation, the source of credibility and trust, is the real asset that allows the U.S. to project its stature around the world. BRICS nations cannot rise to prominence by mimicking developed countries. They must build their reputation first. Wealth is only a byproduct of this more precious commodity, and countries who have it can squander it just as emerging economies can acquire it. For either of those results to happen in any country, circumstantial conditions and principled actions must …
On The Need To Balance Endowments And Academic Integrity, Ahmed Souaiaia
On The Need To Balance Endowments And Academic Integrity, Ahmed Souaiaia
Ahmed E SOUAIAIA
As universities face revenues shortfalls due to national and global economic trends, administrators are forced to look for alternative funding streams. Some of the attractive options consist of creating satellite campuses in rich countries and accepting donors from individuals, corporations, and governments. What is the price of such new partnerships and what is the function of endowments for donors and the universities?
Book Review: Julie Dickson And Pavlos Eleftheriadis, Philosophical Foundations Of European Union Law, Arthur Dyevre
Book Review: Julie Dickson And Pavlos Eleftheriadis, Philosophical Foundations Of European Union Law, Arthur Dyevre
Arthur Dyevre
Change in the legal academy tends to be spurred by changes in the legal reality itself rather than by methodological and conceptual innovation emerging from within the discipline. In that sense, legal developments in the real world habitually seem to be ahead of the scholarship. A new phenomenon emerges, which legal scholars then try to apprehend via the established tools and categories of legal thought, soon to discover that these fail to capture the essence of the new reality. The first to experience the changed legal world are usually the scholars who are closest to practice; those who are intimate …
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
Philosophy: Faculty Publications and Other Works
It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …
Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz
Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz
Justin Schwartz
Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …
A Noble Cause: A Case Study Of Discrimination, Symbols, And Reciprocity, In: Diversity And European Human Rights, Yofi Tirosh
A Noble Cause: A Case Study Of Discrimination, Symbols, And Reciprocity, In: Diversity And European Human Rights, Yofi Tirosh
Yofi Tirosh
This chapter is part of a volume dedicated to rewriting human rights cases issued by the European Court of Human Rights. It uses the case of De La Cierva Osorio De Moscoso v. Spain (1999) as a platform to discuss the inherent tension typifying signs such as nobility titles – as merely symbolic or as carrying substantive content. The problem of one’s ownership of signs is especially acute in the case of women. I will argue that the distinction between form and substance collapses in this case, as in many other cases that involve allocation of allegedly merely symbolic signifiers …
Concepts Of Law, Mathew D. Mccubbins, Mark Turner
Concepts Of Law, Mathew D. Mccubbins, Mark Turner
Faculty Scholarship
No abstract provided.
Legal Punishment As Civil Ritual: Making Cultural Sense Of Harsh Punishment, Spearit
Legal Punishment As Civil Ritual: Making Cultural Sense Of Harsh Punishment, Spearit
Articles
This work examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment. The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution. It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more …
Privacy Law: Positive Theory And Normative Practice, Anita L. Allen
Privacy Law: Positive Theory And Normative Practice, Anita L. Allen
All Faculty Scholarship
No abstract provided.
Alexander's Genius, Mitchell N. Berman