Open Access. Powered by Scholars. Published by Universities.®

Jurisprudence Commons

Open Access. Powered by Scholars. Published by Universities.®

None

Discipline
Keyword
Publication Year
Publication

Articles 1 - 30 of 95

Full-Text Articles in Jurisprudence

Law’S Religion: Religious Difference And The Claims Of Constitutionalism, Benjamin Berger Oct 2016

Law’S Religion: Religious Difference And The Claims Of Constitutionalism, Benjamin Berger

Benjamin L. Berger

Prevailing stories about law and religion place great faith in the capacity of legal multiculturalism, rights-based toleration, and conceptions of the secular to manage issues raised by religious difference. Yet the relationship between law and religion consistently proves more fraught than such accounts suggest. In Law’s Religion, Benjamin L. Berger knocks law from its perch above culture, arguing that liberal constitutionalism is an aspect of, not an answer to, the challenges of cultural pluralism. Berger urges an approach to the study of law and religion that focuses on the experience of law as a potent cultural force. Based on ...


Where Have You Gone, Karl Llewellyn - Should Congress Turn Its Lonely Eyes To You, Stephen Ross Jan 2016

Where Have You Gone, Karl Llewellyn - Should Congress Turn Its Lonely Eyes To You, Stephen Ross

Stephen F Ross

The purpose of this paper is to explore what, if anything, Congress should do about the canons of statutory construction to prevent judges who are more conservative (or perhaps, in a future era, more progressive) than the majority of the legislature from employing those canons to distort or frustrate legislative policy preferences.


Targeted Killing: A Legal And Political History, Markus Gunneflo Dec 2015

Targeted Killing: A Legal And Political History, Markus Gunneflo

Markus Gunneflo

Looking beyond the current debate’s preoccupation with the situations of insecurity of the second intifada and 9/11, this book reveals how targeted killing is intimately embedded in both Israeli and US statecraft and in the problematic relation of sovereign authority and lawful violence underpinning the modern state system. The book details the legal and political issues raised in targeted killing as it has emerged in practice including questions of domestic constitutional authority, the norms on the use of force in international law, the law of targeting and human rights. The distinctiveness of Israeli and US targeted killing is ...


The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow Dec 2015

The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow

Kevin Crow

This paper argues that there is a new neoliberal penality emerging in the United States that exhibits four primary characteristics: (1) the death of rehabilitation, (2) the de-individualization of the criminal, (3) the emergence of a market for deviance, and (4) the managerialistic approach. The prison-industrial complex in the United States illustrates these characteristics, but the characteristics are not limited to the prison-industrial complex.

The paper draws on Foucault's concept of the prison as an institution primarily of individual normalization, but notes that it presupposes rehabilitation as the primary goal of the institution. Using Foucault's work in Discipline ...


Course Materials On The Law Of Socialist Countries, Julian Juergensmeyer Nov 2015

Course Materials On The Law Of Socialist Countries, Julian Juergensmeyer

Julian C. Juergensmeyer

No abstract provided.


The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson Sep 2015

The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson

J.S. Nelson

The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result of this absence of accountability, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.
This vacuum at the center of American conspiracy law has now warped the doctrines around it. Especially in ...


Structuring Subsidiarity, Grounding Solidarity, Thomas Kohler Dec 2014

Structuring Subsidiarity, Grounding Solidarity, Thomas Kohler

Thomas C. Kohler

No abstract provided.


Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Benjamin Tennille, Lee Applebaum, Anne Tucker Oct 2014

Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Benjamin Tennille, Lee Applebaum, Anne Tucker

Anne Tucker

No abstract provided.


Forum Over Substance: Order From Chaos In Regulatory Takings Jurisprudence, Basil Mattingly Oct 2014

Forum Over Substance: Order From Chaos In Regulatory Takings Jurisprudence, Basil Mattingly

Basil H. Mattingly

No abstract provided.


Disparate Treatment As A Theory Of Discrimination: The Need For A Restatement Not A Revolution, Steven Kaminshine Oct 2014

Disparate Treatment As A Theory Of Discrimination: The Need For A Restatement Not A Revolution, Steven Kaminshine

Steven J. Kaminshine

Disparate treatment, a seemingly straightforward basis for identifying discrimination and establishing liability under federal antidiscrimination laws, has become mired in controversy and debate. The debate, triggered by the Supreme Court's 2003 decision in Desert Palace v. Costa, has seen several prominent scholars argue that the case has revolutionary implications, and warrants an overhaul of thirty years of disparate treatment jurisprudence and the methodologies courts employ in assessing proof of discrimination. This article takes a contrary position, rejecting the rush to discard these methods of proof, while seeking to recast them on a sounder conceptual basis. The article accomplishes this ...


Theory Of Case, Evangeline Sarda Jul 2014

Theory Of Case, Evangeline Sarda

Evangeline Sarda

No abstract provided.


Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas Jun 2014

Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas

Jude A Thomas

Customer segmentation is a powerful analytical marketing practice that is employed by a wide range of businesses to segregate customers with similar characteristics into subgroups in order to inform operational business processes. Such practices allow firms to better allocate their resources in order to form more profitable customer relationships, but they also have the capacity to lead to unfair discriminatory impact upon customer groups. Current legislation is largely unprotective of customers so positioned, but recent trends in the insurance and lending industries suggest that a broader application of anti-discrimination laws could foretell a future of greater restrictions on the implementation ...


Altruism. Lights, Camera, Action!, Kim Weinert May 2014

Altruism. Lights, Camera, Action!, Kim Weinert

Kim Weinert

The libertine character Douglas Reynholm in the UK television show the IT Crowd truthfully remarks, ‘I am sad to say that the only secure route to a Knighthood, in this sorry age, is via charity work’ (The IT Crowd, ‘Calendar Geeks’ Episode 6, Series 3). If self-interest is the motive to become involved in charity work, does that make Douglas Reynholm and other people like him, good or bad? Intuitively the answer to this question is in the negative. However, under the ethical egoism theory a positive answer is justifiable. The starting point of this paper is to first define ...


Theorizing Injustice, Catharine Wells Apr 2014

Theorizing Injustice, Catharine Wells

Catharine P. Wells

No abstract provided.


Introducing The ‘Reconciliatory Approach’ – Harmonizing International Environmental Law With Other Specialised Areas Of International Law, Britta Sjöstedt Nov 2013

Introducing The ‘Reconciliatory Approach’ – Harmonizing International Environmental Law With Other Specialised Areas Of International Law, Britta Sjöstedt

Britta Sjöstedt

In this paper, I argue that international environmental treaties can interact with other specialised areas of law applicable to the same subject matter in the same context by using the ‘reconciliatory approach’ (RA). This approach entails that the institutions established under the environmental treaties are empowered to develop the treaty provisions in a manner that may also take other legal areas into account and thereby be able to reconcile obligations of other specialised legal areas. The RA functions on the premise that international law is one system with the inherent ambition to coherently systematize its norms. By looking at the ...


The Realist Hans Kelsen, Uta Bindreiter Sep 2013

The Realist Hans Kelsen, Uta Bindreiter

Uta Bindreiter

No abstract provided.


Co-Organizer: Symposium On The Jurisprudence Of Family Relations: Privacy, Autonomy, And Should States Regulate Family Relations?, Scott Fitzgibbon Jun 2013

Co-Organizer: Symposium On The Jurisprudence Of Family Relations: Privacy, Autonomy, And Should States Regulate Family Relations?, Scott Fitzgibbon

Scott T. FitzGibbon

Professor FitzGibbon served as a co-organizer for the Symposium on the Jurisprudence of Family Relations: Privacy, Autonomy, and Should States Regulate Family Relations? at the Cardozo Law School of Yeshiva University.


Harmonious Discourse And The Good Of Family Law, Scott Fitzgibbon Jun 2013

Harmonious Discourse And The Good Of Family Law, Scott Fitzgibbon

Scott T. FitzGibbon

On June 6, 2013, Professor FitzGibbon presented at the North American Regional Conference for the International Society of Family Law.


Presenter, Render Unto Rawls: Law, Gospel, And The Evangelical Fallacy, Wayne Barnes Apr 2013

Presenter, Render Unto Rawls: Law, Gospel, And The Evangelical Fallacy, Wayne Barnes

Wayne R. Barnes

No abstract provided.


Moderator & Speaker, Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium, Catharine Wells Mar 2013

Moderator & Speaker, Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium, Catharine Wells

Catharine P. Wells

Professor Wells participated in a symposium that examined the obstacles that female faculty of color encounter on the road to tenure and beyond, and proposed creative and empowering strategies to survive and thrive in the academic workplace. She served as the moderator on The First Generation and a speaker on Theorizing the Presumption of Incompetence.


Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock Feb 2013

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension ...


Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock Feb 2013

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension ...


Presenter: Render Unto Rawls: Law, Gospel, And The Evangelical Fallacy, Wayne Barnes Jan 2013

Presenter: Render Unto Rawls: Law, Gospel, And The Evangelical Fallacy, Wayne Barnes

Wayne R. Barnes

No abstract provided.


Member, International Chair On Natural Law And Human Personhood, Scott Fitzgibbon Dec 2012

Member, International Chair On Natural Law And Human Personhood, Scott Fitzgibbon

Scott T. FitzGibbon

No abstract provided.


Rethinking Economic Governance: A Naturalistic Cosmopolitan Jurisprudence Dec 2012

Rethinking Economic Governance: A Naturalistic Cosmopolitan Jurisprudence

kjackson@fordham.edu

No abstract provided.


“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan Dec 2012

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Susan Rexford

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is ...


Re-Emerging Equality. Traditions Of Justice In The Cultural Roots Of The Arab Revolutions, Giancarlo Anello, Khaled Qatam Dec 2012

Re-Emerging Equality. Traditions Of Justice In The Cultural Roots Of The Arab Revolutions, Giancarlo Anello, Khaled Qatam

giancarlo anello

For years, modern Egyptian Islamic thinkers have been attempting to define Islamic ideals of social justice and the way in which they had been betrayed in the post-colonial period. This paper will discuss and critique the mid-20th century works of theorists of the Muslim Revolution like Mahmud Abbas ‘Aqqad (author of al-dymuqratyah fy al-islam, Democracy in Islam) and Sayyid Qutb (author of al-‘adalah al-ijtima‘iyya fy al-islam, Social Justice in Islam) in order to shape the discourse about the relevance of their theories of democracy, justice and equality for today’s political movements.


The Biological Basis For The Recognition Of The Family, Scott Fitzgibbon May 2012

The Biological Basis For The Recognition Of The Family, Scott Fitzgibbon

Scott T. FitzGibbon

No abstract provided.


Die Mediation Der Geschichte: Von Der Wiedergutmachung Bis Zur Bürgerlichen Identität, Kenneth Ian Macduff Apr 2012

Die Mediation Der Geschichte: Von Der Wiedergutmachung Bis Zur Bürgerlichen Identität, Kenneth Ian Macduff

Ian Macduff

In states experiencing post-colonial processes of reconciliation and compensation for historical wrongs, mediators can find that their work with indigenous peoples and the states involves the mediation of history and memory. Such mediations have a further dimension: historical claims by indigenous peoples can also involve claims to a distinctive and identity-based citizenship. Mediations about the memory of past relations thus also deal with the prospects for a political future, including forms of sovereignty. Mediatoren werden bei ihrer Arbeit in Staaten, die sich in von Wiedergutmachung und Kompensation geprägten post-kolonialen Prozessen befinden, feststellen, dass ihre Arbeit mit den Eingeborenen und dem ...


Teacher’S Manual To Accompany Jurisprudence: Classical And Contemporary: From Natural Law To Postmodernism, Robert Hayman, Nancy Levit, Richard Delgado Mar 2012

Teacher’S Manual To Accompany Jurisprudence: Classical And Contemporary: From Natural Law To Postmodernism, Robert Hayman, Nancy Levit, Richard Delgado

Richard Delgado

No abstract provided.