Jurisprudence Commons^™

The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella

Gianluigi Palombella

The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international …

Princípios-Tópicos De Hermenêutica Constitucional, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Houve tempo em que a Constituição servia para poisar ou charuto ou tirar um argumento político, como ironicamente afirmaria o grande escritor oitocentista Eça de Queiroz. Hoje a Constituição é a norma das normas. Daí há consequências hermenêuticas. Ao contrário das teorias que importam interpretação tradicional e, por vezes, em grande medida ultrapassada, para o Direito Constitucional, a tendência actual é a inversa: dada a supremacia da Constituição, deve ser a metodologia constitucional a exportar hermenêutica para o todo do Direito. Para isso, começamos neste artigo com grandes princípios de hermenêutica intra-constitucional. Depois se passará à exportação.

The Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Cornell Law Faculty Publications

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.

Separating Contract And Promise, Aditi Bagchi

All Faculty Scholarship

Contract has been conceptualized as a species of promise. Treating contractual promise as a kind of promise highlights certain important aspects of contracting, but it also obscures essential differences between legally binding and everyday, or what I will call “private,” promises. The moral character of a private promise depends on the fact that it is not only freely made but also freely kept. Most contractual promises are not intended to have and (by definition) do not have this voluntary character. A promisor essentially opts out of the private practice of promising when she assigns to a third party the authority …

Transformation Of Japan’S Civil Society Landscape, Mary Alice Haddad

Mary Alice Haddad

Japan’s civil society is being transformed as more people volunteer for advocacy and professional nonprofit organizations. In the American context, this trend has been accompanied by a decline in participation in traditional organizations. Does the rise in new types of nonprofit groups herald a decline of traditional volunteering in Japan? This article argues that while changes in civil rights, political opportunity structure, and technology have also taken place in Japan, they have contributed to the rise of new groups without causing traditional organizations to decline, because Japanese attitudes about civic responsibility have continued to support traditional volunteering.

Well-Being, Inequality And Time: The Time-Slice Problem And Its Policy Implications, Matthew D. Adler

All Faculty Scholarship

Should equality be viewed from a lifetime or “sublifetime” perspective? In measuring the inequality of income, for example, should we measure the inequality of lifetime income or of annual income? In characterizing a tax as “progressive” or “regressive,” should we look to whether the annual tax burden increases with annual income, or instead to whether the lifetime tax burden increases with lifetime income? Should the overriding aim of anti-poverty programs be to reduce chronic poverty: being badly off for many years, because of low human capital or other long-run factors? Or is the moral claim of the impoverished person a …

La Cesión De Derechos En El Código Civil Peruano, Edward Ivan Cueva

Edward Ivan Cueva

La Cesión de Derechos en el Código Civil Peruano

Algunos Apuntes En Torno A La Prescripción Extintiva Y La Caducidad, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson

All Faculty Scholarship

Desert appears to be in ascendence as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical conception of desert that is or should be promoted. Each offers a distinct advantage over the other. Deontological desert can transcend community, situation, and time to give a conception of justice that can be relied upon to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than can deontological desert because, contrary to common wisdom, there is a good deal of agreement …

Annual Analysis Report Of Supreme People’S Court (2006)【最高人民法院年度分析报告（2006）】, Meng Hou

Hou Meng

No abstract provided.

The Non-Problem Of Free Will In Forensic Psychiatry And Psychology, Stephen J. Morse

All Faculty Scholarship

This article demonstrates that there is no free will problem in forensic psychiatry by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article explains why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product because it is irrelevant and spawns confusion.

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard …

The Hidden Harm Of Law And Economics, Daniel I A Cohen

ExpressO

The paper deals with the adverse psychodynamic consequences to an individual and to society, immediately and in the long run, of dissolving individual responsibility for fault as in the doctrine of Law and economics.

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

ExpressO

This article has two primary goals. The first is descriptive, and seeks to respond to what appears to be an increasing degree of confusion over the word “pragmatism,” especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called “everyday” pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the article is subsequently concerned with exploring this last category, …

Son Of Sam Resurrected: Did Greedy Criminals Unwittingly Give New Life To The “Son Of Sam” Laws?, Arthur M. Ortegon

ExpressO

No abstract provided.

Corégulation Et Responsabilité Sociale Des Entreprises, Gregory Lewkowicz, Ludovic Hennebel

Gregory Lewkowicz

This paper analyses the evolution of corporate social responsibility from an empirical and a theoretical point of view. After having described the framework of a theory of coregulation, the authors scrutinize the main regulatory instruments used in the context of corporate social responsibility. They demonstrate that the evolution of corporate social responsaibility delineates a new regulatory logic peculiar to a globalizing legal world. The paper concludes stating that this logic could be a paradigm for the study of an emerging global law.

From Human Rights To Fundamental Rights: On The Consequences Of A Conceptual Distinction, Gianluigi Palombella

Gianluigi Palombella

This article introduces a peculiar distinction between "human" rights and "fundamental" rights, explaining through diverse areas, the role that the difference can play. Rights are loaded with contrasting properties and burdens, opposing features and values (neutral, pre-political, negotiable, democratic, etc.). On the contrary, we should accept - on one side - human rights as moral visions of what is due to human beings, deontological imperatives, even if abstract. But on the other side we cannot ignore the ethical problems: e.g. those resulting from their blind implementation. We need to enhance the institutional, legal and ethical-political meaning of "fundamental" rights, i.e. …

Rights As Norms And As Ends, Gianluigi Palombella

Gianluigi Palombella

This article considers the narratives of law through the lens of the form-substance devide. Different legal theories have provided for opposite definitions of law, legal rules and individual rights, enhancing their identity as due to some substantive content or, on the contrary, to some formal-functional features. The form-substance antinomy reflects both institutional and theoretical reasons. It bears down on the relations envisaged among rights, norms and ends. Different conceptions of rights are best understood as a special articulation of those three terms, and offer different patterns for rights, depending on their relation-opposition with collective ends, ethical values, legislation. The following …

Reasons For Justice, Rights And Future Generations, Gianluigi Palombella

Gianluigi Palombella

This article focuses on some very "fundamental threats" to future generations' leaving, and considers whether most essential interests of future persons not to be harmed can be construed as rights, and in particular as human rights, as much as present persons'. The framework refers essentially to a conceptual grammar of justice. Moreover, it is suggested to articulate rights through the lens of "disposability" and "non-disposability" principles. Finally, the article shows the reasons for separating what we owe to future persons under the challenge of those threats for humanity, i.e. a matter of justice, from our right to hand down our …

Calling For Stories, Nancy Levit, Allen Rostron

Nancy Levit

Storytelling is a fundamental part of legal practice, teaching, and thought. Telling stories as a method of practicing law reaches back to the days of the classical Greek orators. Before legal education became an academic matter, the apprenticeship system for training lawyers consisted of mentoring and telling war stories. As the law and literature movement evolved, it sorted itself into three strands: law in literature, law as literature, and storytelling. The storytelling branch blossomed.

Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. Law review articles appeared in the …

Suppose The Schindlers Had Won The Schiavo Case, Alan Meisel

Articles

In this Article, I will identify and discuss the harms that would have occurred had the Schindlers won the Schiavo Case - the harms both to Terri Schiavo in the private case and the larger set of harms to public policy in the public case. The Schindlers fought Michael Schiavo on a variety of battlegrounds - the Florida courts, the Florida legislative and executive branches, the federal courts, and eventually Congress. Had they definitively prevailed in any of these forums, the consequences for end-of-life decisionmaking would have been largely the same. Had they prevailed in Congress or even in the …

Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr.

Articles

The Thirteenth Amendment has relatively recently been rediscovered by scholars and litigants as a source of civil rights protections. Most of the scholarship focuses on judicial enforcement of the Amendment in lawsuits brought by individuals. However, scholars have paid relatively little attention as of late to the proper scope of congressional action enforcing the Amendment. The reason, presumably, is that it is fairly well settled that Congress enjoys very broad authority to determine what constitutes either literal slavery or, to use the language of Jones v. Alfred H. Mayer Co., a "badge or incident of slavery" falling within the Amendment's …

Can There Be A Theory Of Law?, Joseph Raz

Faculty Scholarship

The paper deals with the possibility of a theory of the nature of law as such, a theory which will be necessarily true of all law. It explores the relations between explanations of concepts and of the things they are concepts of, the possibility that the law has essential properties, and the possibility that the law changes its nature over time, and that what is law at a given place and time depends on the culture and concepts of that place and time. It also considers the possibility of understanding the institutions, such as the law, of cultures whose concepts …

Direito À Informação Ou Deveres De Protecção Informativa Do Estado?,, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

A Liberdade de Informação poderá ser simultaneamente defendida pelo dever de abstenção do Estado na esfera de exercício privado (não perigoso) de cada cidadão ou grupo “ordeiro” de cidadãos, e pelo dever de protecção dos cidadãos e das suas pessoas morais (incluindo obviamente associações e empresas) nos casos em que a ordem natural da rede social equitativa seja rompida, designadamente por fenómenos de massificação arregimentadora, trusts anti-concorrência, violação de direitos fundamentais, etc., e, no limite, crime. Mas o discernimento e ponderação terão que ser muito grandes.

Les Limites Du Pouvoir De Révision Constitutionnelle Entre Le Pouvoir Constituant Et La Constitution Matérielle. Une Illustration Dans Le Contexte Lusophone, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

May we relate with intellectual profit some 'abstract' constitutional concepts such as "pouvoir constituant", "constitution matérielle" and "limites matériels de révision constitutionnelle"?

Do Constitucionalismo Brasileiro: Uma Introdução Histórica (1824-1988), Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

It is not usual to write a constitutional history from the view point of a foreigner. This is a essai of a glimpse of Brazilian constitutional history from the perspective of a Portuguese, descending from Bazilians, descending from Portuguese. In spite of those circunstances, of course the aim was always the possible objectivity in History and in Constitutional Law History.

Economics Of Plea Bargaining, Richard Adelstein

Richard Adelstein

A short summary of earlier work for a sociological audience.