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Full-Text Articles in Jurisprudence

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram Oct 2013

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 ...


Holmes, Cardozo, And The Legal Realists: Early Incarnations Of Legal Pragmatism And Enterprise Liability, Edmund Ursin Aug 2013

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 ...


The Role Of The Federal Judge In The Constitutional Structure: An Originalist Perspective, Diarmuid F. O'Scannlain Aug 2013

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 Jun 2013

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 May 2013

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 ...


On The Need To Balance Endowments And Academic Integrity, Ahmed Souaiaia Apr 2013

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?


Repurposed Narratives: The Battle Of Ṣiffīn And The Historical Memory Of The Umayyad Dynasty, Aaron M. Hagler Apr 2013

Repurposed Narratives: The Battle Of Ṣiffīn And The Historical Memory Of The Umayyad Dynasty, Aaron M. Hagler

Journal of Islamic and Middle Eastern Multidisciplinary Studies

The Battle of Ṣiffīn (36/657) is the flash point in the emergence of sects within Islam. The presentation of the Ṣiffīn story in Arabic historical writing therefore changed over time as the sectarian split among Sunnīs and Shīʿites became increasingly defined. This paper will trace the development of the presentation of the Ṣiffīn story in Arabic histories across developing Sunnī and Shīʿite identity crystallization and the region of origin of their authors, as well as literary and stylistic developments in the field of Arabic historical writing.

The specific historians examined have been chosen in part because they demonstrate a ...


Book Review: Julie Dickson And Pavlos Eleftheriadis, Philosophical Foundations Of European Union Law, Arthur Dyevre Mar 2013

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 ...


Revolutions And Rebellions And Syria's Paths To War And Peace, Ahmed Souaiaia Jan 2013

Revolutions And Rebellions And Syria's Paths To War And Peace, Ahmed Souaiaia

Ahmed E SOUAIAIA

In less than a month, peaceful Tunisian and Egyptian protesters ousted two of the most authoritarian rulers of the Arab world. The human and economic costs: a total of about 1100 people dead (300 in Tunisia and 800 in Egypt) and some decline in economic growth. These were the dignity revolutions. In contrast, the Syrian peaceful uprising quickly turning into armed rebellion is now 22 months old with over 60,000 people (civilians, rebels, security and military officers, women and children) dead, more than 4,000,000 persons displaced from their homes, and destruction estimated at $70 billion. This is ...


Another Solipsism: Rae Langton On Sexual Fantasy, Andrew M. Koppelman Jan 2013

Another Solipsism: Rae Langton On Sexual Fantasy, Andrew M. Koppelman

Washington University Jurisprudence Review

The feminist critique of pornography focuses on the evils that pornography brings about. That critique is also animated by a positive ideal of sexuality. I examine this positive ideal as developed by Rae Langton, who has recently offered a sustained philosophical account of the feminist critique. Langton’s ideal is a fundamentally defective and self-defeating aspiration, likely to thwart rather than to facilitate the interpersonal communion she values. It paradoxically reproduces the solipsism it denounces. The defects of her ideal strengthen the case for other, more pornography-friendly forms of feminism.


Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz Jan 2013

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 ...


A Noble Cause: A Case Study Of Discrimination, Symbols, And Reciprocity, In: Diversity And European Human Rights, Yofi Tirosh Jan 2013

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 ...


Reflective Judgment, Determinative Judgment, And The Problem Of Particularity, Angelica Nuzzo Jan 2013

Reflective Judgment, Determinative Judgment, And The Problem Of Particularity, Angelica Nuzzo

Washington University Jurisprudence Review

No abstract provided.


Kant On Teleological Thinking And Its Failures, Manfred Baum Jan 2013

Kant On Teleological Thinking And Its Failures, Manfred Baum

Washington University Jurisprudence Review

No abstract provided.


An Interest In The Impossible, Todd Kesselman Jan 2013

An Interest In The Impossible, Todd Kesselman

Washington University Jurisprudence Review

No abstract provided.


The Regress Argument In Kant, Wittgenstein, And The Pittsburgh "Pragmatists", Joseph Margolis Jan 2013

The Regress Argument In Kant, Wittgenstein, And The Pittsburgh "Pragmatists", Joseph Margolis

Washington University Jurisprudence Review

No abstract provided.


Legal Positivism And Russell’S Paradox, David Gray Carlson Jan 2013

Legal Positivism And Russell’S Paradox, David Gray Carlson

Washington University Jurisprudence Review

No abstract provided.


Bioethical Considerations Of Preimplantation Genetic Diagnosis For Sex Selection, M. Shelby Deeney Jan 2013

Bioethical Considerations Of Preimplantation Genetic Diagnosis For Sex Selection, M. Shelby Deeney

Washington University Jurisprudence Review

Since ancient times, people have tried to control the sex of their offspring. Today, technology allows individuals to choose the sex of a child with near-perfect accuracy. The combined technologies of in vitro fertilization (IVF) and preimplantation embryo genetic testing enable prospective parents to choose the sex of the embryos that will be implanted for gestation and develop into children. Currently, no United States law governs the use of preimplantation genetic diagnosis (PGD) for the use of sex selection. This Note explores the consequences of this unregulated technology and why natural law calls for regulation of PGD for sex selection ...


Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram Jan 2013

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 ...


For Better And For Better: The Case For Abolishing Civil Marriage, Aníbal Rosario-Lebrón Jan 2013

For Better And For Better: The Case For Abolishing Civil Marriage, Aníbal Rosario-Lebrón

Washington University Jurisprudence Review

Non-traditional family arrangements are currently denied legal and social recognition as families. This lack of recognition comes from their failure to meet the standard of the prevailing matrimonial-family model. As a result, these families face a very inequitable society that discriminates toward them in every turn. Furthermore, the legal fixation to promote a specific model of the family has produced a very incoherent legal scheme. This article explores whether a more egalitarian society and a more sound legal system may be achieved by extending the protections and benefits of marriage to more groups or, alternatively, whether it would be better ...


Cynical Realism And Judicial Fantasy, Daniel Hinkle Jan 2013

Cynical Realism And Judicial Fantasy, Daniel Hinkle

Washington University Jurisprudence Review

Recent scholarship on the workings of the court system has cast doubt on the ability of judges to make neutral, unbiased decisions. Statistical analyses of judicial decisions have identified a sizable minority of decisions that appear to be influenced by a judge’s ideology. These findings have fueled a “neutrality crisis” regarding the courts system’s ability to live up to its role as a neutral arbiter. Naïve realism accounts for this ideological bias by suggesting that judges, as humans, are subject to the same sort of perception biases as anyone else and that these unconscious biases can affect their ...


Introduction, Angelica Nuzzo, David Gray Carlson Jan 2013

Introduction, Angelica Nuzzo, David Gray Carlson

Washington University Jurisprudence Review

No abstract provided.


Kant On Art And Truth After Plato, Tom Rockmore Jan 2013

Kant On Art And Truth After Plato, Tom Rockmore

Washington University Jurisprudence Review

No abstract provided.


The Problem Of Purposiveness And The Objective Validity Of Judgments In Kant's Theoretical Philosophy, Rolf-Peter Horstmann Jan 2013

The Problem Of Purposiveness And The Objective Validity Of Judgments In Kant's Theoretical Philosophy, Rolf-Peter Horstmann

Washington University Jurisprudence Review

No abstract provided.


Is A Determinant Judgment Really A Judgment?, Rodolphe Gasché Jan 2013

Is A Determinant Judgment Really A Judgment?, Rodolphe Gasché

Washington University Jurisprudence Review

No abstract provided.


Relating Kant's Theory Of Reflective Judgment To The Law, Rudolf A. Makkreel Jan 2013

Relating Kant's Theory Of Reflective Judgment To The Law, Rudolf A. Makkreel

Washington University Jurisprudence Review

No abstract provided.


Effect Precedes Cause: Kant And The Self-In-Itself, David Gray Carlson Jan 2013

Effect Precedes Cause: Kant And The Self-In-Itself, David Gray Carlson

Washington University Jurisprudence Review

No abstract provided.


Privacy Law: Positive Theory And Normative Practice, Anita L. Allen Jan 2013

Privacy Law: Positive Theory And Normative Practice, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Concepts Of Law, Mathew D. Mccubbins, Mark Turner Jan 2013

Concepts Of Law, Mathew D. Mccubbins, Mark Turner

Faculty Scholarship

No abstract provided.


On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman Jan 2013

On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.