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Full-Text Articles in Jurisprudence

Theories And Practices Of Islamic Finance And Exchange Laws: Poverty Of Interest, Ahmed E. Souaiaia Oct 2014

Theories And Practices Of Islamic Finance And Exchange Laws: Poverty Of Interest, Ahmed E. Souaiaia

Ahmed E SOUAIAIA

While Islamic scriptures clearly prohibit profiting from the poor, supposedly sharī'ah-compliant Islamic financial and exchange laws circumvent prohibitions and limitations on ribā, monopolism, debt, and risk while failing to address the fundamental purpose behind the prohibitions—mitigating poverty. This work provides a historical survey of the principles that shape Islamic finance and exchange laws, reviews classical and modern interpretations and practices in the banking and exchange sectors, and suggests a normative model rooted in the interpretation of Islamic sources of law reconstructed from paradigmatic cases. Financial systems that overlook the nexus between poverty and usury harm both the economy ...


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 ...


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 ...


The Right To Be Fat, Yofi Tirosh Jan 2012

The Right To Be Fat, Yofi Tirosh

Yofi Tirosh

Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be ...


Collective Choice, Justin Schwartz Jan 2011

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility ...


Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd Jan 2011

Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd

Reid G. Fontaine

Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative, that ...


What Will Our Future Look Like And How Will We Respond?, Michael A. Fitts Jan 2011

What Will Our Future Look Like And How Will We Respond?, Michael A. Fitts

Faculty Scholarship at Penn Law

No abstract provided.


In Self-Defense Regarding Self-Defense: A Rejoinder To Professor Corrado, Reid G. Fontaine Jan 2010

In Self-Defense Regarding Self-Defense: A Rejoinder To Professor Corrado, Reid G. Fontaine

Reid G. Fontaine

This is a rejoinder to Professor Corrado in the upcoming special section of the American Criminal Law Review on the nature, structure, and function of self-defense and defense of others law.


A Name Of One's Own: Gender And Symbolic Legal Personhood In The European Court Of Human Rights, Yofi Tirosh Jan 2010

A Name Of One's Own: Gender And Symbolic Legal Personhood In The European Court Of Human Rights, Yofi Tirosh

Yofi Tirosh

Legal regulation of surnames provides a fascinating venue for examining how women negotiate their interests of autonomy and of stable personhood vis a vis a patriarchal naming structure. This is a study of 25 years of adjudication of surnames and personal status at the European Court of Human Rights. It explores the intricate ways in which legal norms governing surnames (and their judicial interpretation) sustain, shape, and reify social institutions such as gender, family, and citizenship.

As a pan European court, the adjudication of the ECHR operates within the framework of human rights. The universal characteristics of human rights principles ...


Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer Dec 2009

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views ...


On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held Jan 2009

On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held

Reid G. Fontaine

A “cultural defense” to criminal culpability cannot achieve true pluralism without collapsing into a totally subjective, personal standard. Applying an objective cultural standard does not rescue a defendant from the external imposition of values—the purported aim of the cultural defense—because a cultural standard is, at its core, an external standard imposed onto an individual. The pluralist argument for a cultural defense also fails on its own terms—after all, justice systems are themselves cultural institutions. Furthermore, a defendant’s background is already accounted for at sentencing. The closest thing to a cultural defense that a court could adopt ...


Contesting Justice: Women, Islam, Law, And Society, Ahmed Souaiaia Dec 2008

Contesting Justice: Women, Islam, Law, And Society, Ahmed Souaiaia

Ahmed E SOUAIAIA

No abstract provided.


The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick Jan 2007

The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick

Faculty Scholarship at Penn Law

No abstract provided.


Challenges In Law Making In Mass Societies, Geoffrey C. Hazard Jr. Jan 2007

Challenges In Law Making In Mass Societies, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein Oct 2006

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories ...


Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry Jan 2006

Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry

Faculty Scholarship at Penn Law

No abstract provided.


On The Sources Of Islamic Law And Practices, Ahmed Souaiaia Jul 2005

On The Sources Of Islamic Law And Practices, Ahmed Souaiaia

Ahmed E SOUAIAIA

No abstract provided.


Responsibility For Unintended Consequences, Claire Oakes Finkelstein Jan 2005

Responsibility For Unintended Consequences, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as ...


Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer Jan 2005

Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi Jan 2005

Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi

Faculty Scholarship at Penn Law

Functional law and economics, which draws its influence from the public choice school of economic thought, stands in stark contrast to both the Chicago and Yale schools of law and economics. While the Chicago school emphasizes the inherent efficiency of legal rules, and the Yale school views law as a solution to market failure and distributional inequality, functional law and economics recognizes the possibility for both market and legal failure. That is, while there are economic forces that lead to failures in the market, there are also structural forces that limit the law’s ability to remedy those failures on ...


Science, Identity, And The Construction Of The Gay Political Narrative, Nancy J. Knauer Jan 2003

Science, Identity, And The Construction Of The Gay Political Narrative, Nancy J. Knauer

Nancy J. Knauer

This Article contends that the current debate over gay civil rights is, at base, a dispute over the nature of same-sex desire. Pro-gay forces advocate an ethnic or identity model of homosexuality based on the conviction that sexual orientation is an immutable, unchosen, and benign characteristic. The assertion that, in essence, gays are "born that way," has produced a gay political narrative that rests on claims of shared identity (i.e., homosexuals are a blameless minority) and arguments of equivalence (i.e., as a blameless minority, homosexuals deserve equal treatment and protection against discrimination). The pro-family counter-narrative is based on ...


The Roles Of Litigation, Stephen B. Burbank Jan 2002

The Roles Of Litigation, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


A Liberal Theory Of Social Welfare: Fairness, Utility, And The Pareto Principle, Howard F. Chang Jan 2000

A Liberal Theory Of Social Welfare: Fairness, Utility, And The Pareto Principle, Howard F. Chang

Faculty Scholarship at Penn Law

No abstract provided.


The Possibility Of A Fair Paretian, Howard F. Chang Jan 2000

The Possibility Of A Fair Paretian, Howard F. Chang

Faculty Scholarship at Penn Law

No abstract provided.


The Hazards Of Legal Fine Tuning: Confronting The Free Will Problem In Election Law Scholarship, Michael A. Fitts Jun 1999

The Hazards Of Legal Fine Tuning: Confronting The Free Will Problem In Election Law Scholarship, Michael A. Fitts

Faculty Scholarship at Penn Law

No abstract provided.


The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer Jan 1999

The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer Jul 1997

The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Relativism, Reflective Equilibrium, And Justice, Justin Schwartz Jan 1997

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into ...


What's Wrong With Exploitation?, Justin Schwartz Jan 1995

What's Wrong With Exploitation?, Justin Schwartz

Justin Schwartz

Abstract: Marx thinks that capitalism is exploitative, and that is a major basis for his objections to it. But what's wrong with exploitation, as Marx sees it? (The paper is exegetical in character: my object is to understand what Marx believed,) The received view, held by Norman Geras, G.A. Cohen, and others, is that Marx thought that capitalism was unjust, because in the crudest sense, capitalists robbed labor of property that was rightfully the workers' because the workers and not the capitalists produced it. This view depends on a Labor Theory of Property (LTP), that property rights are ...