Jurisprudence Commons^™

Promise Against Peril: Of Power, Purpose, And Principle In International Law, Robert Hockett

Robert C. Hockett

I take two recent monographs on international law – Mary Ellen O’Connell’s "The Power and Purpose of International Law," and Eric Posner’s "The Perils of Global Legalism," as case studies in a more general inquiry into the role of the "rule of law" ideal in domestic and international law. I argue that international and domestic law alike give varyingly explicit and effective expression to the rule of law ideal, and that the task before us is accordingly steadily to improve their effectiveness in so doing, not to pretend that there is no role for this ideal to play in interpreting …

Shredded Fish,, Robert Sanger

Robert M. Sanger

There are just too many criminal laws and their proliferation has expanded exponentially over the last few decades. This is overcriminalization. In addition, the jurisdiction of federal authorities under general or vague laws has vastly expanded federal criminal prosecution of people and organizations for what otherwise would not be a crime. This is overfederalization and overcriminalization. In this article we will look at the current litigation before the United States Supreme Court that had directly taken on this controversy. The case of Yates v. United States involves briefing by the parties and by amici curae directly invoking and defending the …

Past Consideration Or Unconnected Consideration, Yihan Goh, Man Yip

Man YIP

It is trite law that a valid and enforceable contract must be supported by consideration. The recent Court of Appeal case of Rainforest Trading Ltd v State Bank of India Singapore [2012] 2 SLR 713 is a further addition to the local jurisprudence on consideration, specifically the issue of past consideration. This note considers the specific issue of past consideration and argues that its label should be discarded in favour of a more realistic one that correctly emphasises its underlying concerns.

Legality, Morality, Duality, Joshua Davis

Joshua P. Davis

This Article proposes legal dualism as a novel resolution to one of the central debates in jurisprudence—that between natural law and legal positivism. It holds that the nature of law varies with the purpose for which it is being interpreted. Natural law provides the best account of the law when it serves as a source of moral guidance and legal positivism when it does not. The Article explores dualism by contrasting it with the defense of legal positivism in Scott Shapiro’s justly renowned book, LEGALITY. Shapiro offers arguably the most sophisticated defense of positivism to date. This Article argues that …

American Legal Realism And Practical Guidance, Joshua Davis, Manuel Vargas

Joshua P. Davis

H.L.A. Hart’s well-known rejection of American Legal Realism turned in part on the idea that Realism lacked the resources to provide the sort of guidance that we might reasonably seek from a theory of law. Although Hart's criticisms were widely regarded as devastating, in recent years American Legal Realism has undergone something of a renaissance. The principal architect of that renaissance is Brian Leiter, who has re-established Realism as an important and even indispensable approach to jurisprudence. In this chapter, our aim is to show how, despite its considerable attractions, Leiter’s brand of Legal Realism appears to be in much …

The Limits Of Game Theory On Important Legal Issues, Robert Sanger

Robert M. Sanger

Political strategists often talk in terms of targeting the “persuadable middle.” This term is used regarding volatile issues like same-sex marriage, war, or the death penalty. It is a core feature of undergraduate “game theory” classes taught within Economics departments but it is also a concept that has become a staple of political campaign consultants.

The “persuadable middle” concept is severely flawed in practice. Recent scholarly research has shown that the very fact of utilizing economic “game theory” and concepts like the “persuadable middle” has unintended consequences. By staying away from moral discourse in potentially volatile debates and focusing instead …

Conclusion — The Migration Of Legal Ideas: Legislative Design And The Lawmaking Process, Robert Tsai

Robert L Tsai

This is the conclusion for an edited volume on legislative usage of foreign and international law, N. Lupo & L. Scaffardi, Legal Transplants and Parliaments: A Possible Dialogue Amongst Legislators? (2014). I assess the general turn in comparative law studies towards the behavior of elected officials, as well as the preference for increased formality in the use of foreign law. The essays in this book analyze the legal experiences of Brazil, Namibia, Australia, South Africa, Spain, the European Union, China, Canada, Portugal, the United Kingdom, the United States, and Italy. Many of these countries (but not all, especially the U.S.) …