Jurisprudence Commons^™

Tribe's Judicious Feminism, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Lochner Era Jurisprudence And The American Constitutional Tradition, Stephen Siegel

Stephen Siegel

No abstract provided.

Paradox And Pandora's Box: The Tragedy Of Current Right-To-Die Jurisprudence, Cathaleen A. Roach

University of Michigan Journal of Law Reform

Part I of this Article examines the trilogy of recent right-to-die cases and contrasts the results of those cases with recent national opinion polls and statistical surveys of the issue. Part II examines federal and state legislative responses to the debate. It suggests that both the courts and legislatures are out of sync with an emerging national consensus on the death-with- dignity debate. In fact, the federal legislative response may only exacerbate the problem. Instead of creating new rights, it feeds individuals into the existing state network, which is a quagmire of confusing and inequitable statutory provisions. Part III examines …

What's Left?, Guyora Binder

Journal Articles

Addressing the future of radical politics at the end of the cold war, this article offers a reconstruction of radical theory around the goal of enabling collaborative self-realization through participatory democratic politics. It offers an interpretation of the radical tradition as defined by a view of human nature as a cultural artifact, and a conception of liberation as the self-conscious transformation of human nature. It proceeds to critique radical theory’s traditional focus on revolution as the means of radical transformation. Distinguishing instrumental and self-expressive conceptions of transformation it critiques revolutionary processes as tending to reproduce instrumental culture. It offers democratic …

"The Right To Bear Arms": Two Views, Lee Fisher, David C. Tryon

Law Faculty Articles and Essays

The authors provide varying opinions on the Second Amendment.

Therapeutic Jurisprudence As A New Approach To Mental Health Law Policy Analysis And Research, David B. Wexler, Bruce J. Winick

University of Miami Law Review

No abstract provided.

The World In Our Courts, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Approaching Aliens: A Plea For Jurisprudential Recovery As A Theoretical Introduction To (Ex)Socialist Legal Systems, Ivan L. Padjen

Dalhousie Law Journal

It might be wise to stop here. Even a reader who is sympathetic to jurisprudential imagination must regard the communicable part of my title with considerable misgiving. For he or she can hardly be unaware of the double jeopardy in which the general theorist of law places himself when dealing with socialist legal systems. The first has been aptly described by Alasdair MacIntyre in his parable of a man who aspired to be the author of the general theory of holes.' The moral of the story, that the concept of a hole is a poor foundation for a general theory …

Judge Richard Posner's Jurisprudence, Robert S. Summers

Michigan Law Review

A Review of The Problems of Jurisprudence by Richard A. Posner

Not So Cold An Eye: Richard Posner's Pragmatism, Jason S. Johnston

Vanderbilt Law Review

Over the past twenty odd years, Judge Richard Posner has established himself as one of the most creative and influential thinkers in the history of American law. His work divides into two parts: the prejudicial corpus, which is devoted almost entirely to the comprehensive economic analysis of law,' and the postjudicial corpus, which treats issues involving what may be called the theory of judging and courts--that is, the normative theory of how judges should decide cases and how courts should be organized. This division is rough and wavering, for Posner's work prior to his appointment to the federal bench often …

The Concept Of Offensiveness In Establishment And Free Exercise Jurisprudence, William P. Marshall

Indiana Law Journal

No abstract provided.

Authoritarianism And The Rule Of Law, Lynne Henderson

Indiana Law Journal

No abstract provided.

Harnessing The Power Of The Bet: Wagering With The Government As A Mechanism For Social And Individual Change, Bruce J. Winick

University of Miami Law Review

No abstract provided.

Towards A Communitarian Theory Of Responsibility: Bearing The Burden For The Unintended, Rosa Eckstein

University of Miami Law Review

No abstract provided.

Inconsistent Judgments, John C. Mccoid, Ii

Washington and Lee Law Review

No abstract provided.

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

Scholarly Works

No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …

Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel

Scholarly Works

The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …

Eroding The Myth Of Discretionary Justice In Family Law: The Child Support Experiment, Jane C. Murphy

All Faculty Scholarship

Reliance on judicial discretion to resolve disputes is one of the most fundamental characteristics of the American legal system. Nowhere have judges exercised more unfettered discretion than in family law. Judicial discretion in this area, however, is not without its critics. In this Article Professor Jane Murphy recommends limiting the use of judicial discretion in family law matters. Professor Murphy argues that the lack of predictability which flows from discretionary decisions undermines our confidence in the equity of decisions and encourages protracted litigation.

Professor Murphy reviews the developing consensus that fixed rules are necessary to guide judges' discretion in divorce …

After Mallard V. United States: The Federal Courts' Inherent Power To Appoint Representation For Indigent Civil Litigants, Laura B. Hardwicke

Loyola University Chicago Law Journal

No abstract provided.

The Vagaries Of Illinois Supreme Court Rule 103(B) Revisited, Robert G. Johnston, Iain D. Johnston

Loyola University Chicago Law Journal

No abstract provided.

On Trial: Explorations, George Anastaplo

Loyola University Chicago Law Journal

No abstract provided.

Feminist Jurisprudence: The 1990 Myra Bradwell Day Panel, Elizabeth M. Schneider, Lucinda M. Finley, Carin Clauss, Joan Bertin

Journal Articles

No abstract provided.

Will There Be A Science Of Law In The Twenty-First Century?, Richard Stith

Law Faculty Publications

The skepticism of the American Legal Realists and their heirs threatens to make a politically neutral science of law impossible and thus to undermine the liberal polity which needs such a science. Ronald Dworkin attempts to refute the skeptics and defend both legal theory and liberalism. However, the author points out, Dworkin and liberalism are themselves skeptics when it comes to moral principles, and, therefore, they cannot wholly escape from similar skepticism with regard to legal principles. Both Anglo-American and Continental legal history are examined in the course of these arguments.

Generosity: A Duty Without A Right, Richard Stith

Law Faculty Publications

The rhetoric of rights permeates and dominates the American legal thought today. Even ethics is often considered to involve fundamentally a mutual respect for "moral rights." Understanding human rights is taken to be a sufficient condition for knowing how we do and should order our life together.

Bats And Owls And The Insane Moon: The Search For The Republic's Unwritten Constitution, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.

People V. Moore: Can There Be Collateral Estoppel In The Traffic Court? , Daniel T. Gillespie Honorable

Loyola University Chicago Law Journal

No abstract provided.

Sex, Lies And Videotape: The Pornographer As Censor, Marianne Wesson

Publications

The legal branch of the women's movement, although of one mind on some subjects, is divided on the proper approach to pornography. Some feminists oppose the imposition of any legal burdens on pornography because they fear that feminist speech will be caught in the general suppression, and others believe that any such burdens must violate the first amendment. Professor Wesson suggests that pornography should be defined to include only those materials that equate sexual pleasure with the infliction of violence or pain, and imply approval of conduct that generates the actor's arousal or satisfaction through this infliction. So defined, pornography …

Equal Protection

Touro Law Review

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.

Structuring The Ethics Of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, Fred C. Zacharias

Vanderbilt Law Review

Codes of professional responsibility take a very different approach to civil and criminal trials. In civil litigation, the codes presume that good outcomes result when lawyers represent clients aggressively. In criminal cases, the codes do not rely as fully on competitive lawyering. They treat prosecutors as advocates, but also as "ministers" having an ethical duty to "do justice."

Although the special prosecutorial duty is worded so vaguely that it obviously requires further explanation, the codes provide remarkably little guidance on its meaning. In effect, code drafters have delegated to prosecutors the task of resolving the special ethical issues prosecutors face …