Jurisprudence Commons^™

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, …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Parents Involved & Meredith: A Prediction Regarding The (Un)Constitutionality Of Race-Conscious Student Assignment Plans, Eboni S. Nelson

ExpressO

During the October 2006 Term, the United States Supreme Court will consider the constitutionality of voluntary race-conscious student assignment plans as employed in Parents Involved in Community Schools v. Seattle School District No.1 and Meredith v. Jefferson County Board of Education. These cases will mark the Court’s first inquiry regarding the use of race to combat de facto segregation in public education. This article examines the constitutionality of such plans and provides a prediction regarding the Court’s decisions.

The article begins with an analysis of the resegregation trend currently plaguing American educational institutions and identifies two causes for the occurrence: …

Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy

ExpressO

Social contract theorists suggest that society at some level is based on the idea that human people surrender freedom for the privilege of participating in society. That participation implicitly requires more than mere minimal compliance with law. Each human person’s contribution to society above the legal baseline, permits humans to create a society that is at least tolerable. Corporations as non-human act without regard for these supra-legal obligations which results in society suffering injustice. Corporate participation in society has become increasingly unjust and has done so to the extent that we may speak of living in a post-ethical world.

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

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No abstract provided.

Law In The Cultivation Of Hope, Kathryn R. Abrams, Hila Keren

ExpressO

In recent years scholars have begun to question the longstanding dichotomization of (legal) reason and the passions, and have offered significant understanding of the connection of law and the emotions. Much of this work, however, has been done within a fairly narrow ambit. This Article seeks to broaden this scholarship in two ways. First, it points to an unexplored relation between law and the emotions: the role of law in cultivating the emergence of emotions. And second, it moves beyond the negative emotions, and directs attention to positive emotions and their interplay with the law outside the criminal context. Following …

Exploring The Source Of Transatlantic Antitrust Divergence, Alan J. Devlin

ExpressO

This paper seeks to explore the sources of substantive divergence between the antitrust regimes of the U.S. and EC and to present a framework upon which harmonization could potentially be achieved. While the rise of the Chicago School and post-Chicago theory have merged to ensure a central role for economics in dictating antitrust enforcement in the United States, no such clear standard has emerged in Europe. The consequences for firms operating on a transatlantic basis are potentially severe, as they have to formulate different business strategies depending on which jurisdiction they operate in. An assessment of EC law demonstrates an …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

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No abstract provided.

How And Understanding Of The Second Personal Standpoint Can Change Our Understanding Of The Law: Hart's Unpublished Response To Exclusive Legal Positivism, Robin B. Kar

ExpressO

This Article describes recent developments in moral philosophy on the “second personal standpoint,” and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement’s “rational actor” model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest, however, …

Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis

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This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

The "No Property" Problem: Understanding Poverty By Understanding Wealth, Jane Baron

ExpressO

No abstract provided.