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Articles 31 - 60 of 147
Full-Text Articles in Jurisprudence
Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun
Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun
Dan Priel
It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes. But surface appearances can deceive. Unlike some other areas of philosophy, the subject matter of jurisprudence is …
The Place Of Legitimacy In Legal Theory, Dan Priel
The Place Of Legitimacy In Legal Theory, Dan Priel
Dan Priel
In this essay I argue that in order to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. I show that this distinction helps us, first, make sense of fundamental debates in jurisprudence between legal positivists and Dworkin: these should not be understood, as they often are, as debates on the conditions of validity, but rather as debates on the right way of understanding the relationship between these four concepts. I then use this distinction between the four concepts to criticize legal positivism. The positivist account begins with an attempt to explain …
Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel
Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel
Dan Priel
Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a measured assessment of …
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 Jurisprudence Of Nature: The Importance Of Defining What Is "Natural", Jill M. Fraley
The Jurisprudence Of Nature: The Importance Of Defining What Is "Natural", Jill M. Fraley
Jill M. Fraley
Informal regulations defining nature, natural, and organic have proliferated across diverse fields of law from patents to agriculture, from taxation to gemstones. The unwritten jurisprudence of defining nature is primarily a story of the struggle to isolate mankind’s manipulations and interventions, creating a man-nature dichotomy that frustrates more than it explicates. This failure to define nature continues with the Supreme Court’s recent Myriad decision, which struggles to define the law of nature exception to patentability, highlighting the challenge of measuring levels of human intervention and manipulation. Our dichotomous definitions do not generate neat, binary answers, but rather complicated scales of …
Theater, Law & Democracy As Living Speech: Reflections On The Work Of James Boyd White, Frank Garcia
Theater, Law & Democracy As Living Speech: Reflections On The Work Of James Boyd White, Frank Garcia
Frank J. Garcia
Institutional Rules, Strategic Behavior And The Legacy Of Chief Justice William Rehnquist: Setting The Record Straight On Dickerson V. United States, Daniel Katz
Daniel M Katz
Why did Justice Rehnquist behave the way he did in Dickerson v. United States? As written, many prevailing accounts accept Justice Rehnquist's opinion in Dickerson v. United States at face value and disavow the potential of a strategic explanation. The difficulty with the non-strategic accounts is their failure to outline explicitly the evidence supporting the uniqueness of their theory. Specifically, these explanations largely ignore the alternative set of preferences which could have produced the Chief's decision. This is troubling because prior scholarship demonstrates that a chief justice possesses a unique set of institutional powers which provides significant incentive for him …
Precedent And Legal Authority: A Critical History, Charles W. Collier
Precedent And Legal Authority: A Critical History, Charles W. Collier
Charles W. Collier
In this Article, Professor Charles Collier traces out a general theory of precedential authority through historical sources. The Article focuses on three particularly influential views of precedent: Wambaugh's concept of dictum, Oliphant's concept of stare decisis, and Goodhart's concept of ratio decidendi. These views illustrate an underlying tension between two distinct doctrines of precedential authority. The first doctrine, derived from humanistic thought, restricts-legal authority as narrowly as possible to the express terms of an original text. The second doctrine draws on the broad, generalizing tendencies of the empirical sciences and their corresponding conceptions of scientific authority. The two doctrines coexist …
The Constitutional Rhetoric Of White Innocence
The Constitutional Rhetoric Of White Innocence
Cecil J. Hunt II
This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …
The Constitution And Informational Privacy, Or How So-Called Conservatives Countenance Governmental Intrustion Into A Person's Private Affairs, 18 J. Marshall L. Rev. 871 (1985), Michael P. Seng
Michael P. Seng
No abstract provided.
Patent Claim Construction: A Modern Synthesis And Structured Framework, Peter S. Menell, Matthew D. Powers, Steven C. Carlson
Patent Claim Construction: A Modern Synthesis And Structured Framework, Peter S. Menell, Matthew D. Powers, Steven C. Carlson
Peter Menell
No abstract provided.
El Tribunal De Justicia De La Ue Se Pronuncia A Favor De Una Mayor Transparencia En El Acceso A Los Datos De La Aesa (Efsa), Luis González Vaqué
El Tribunal De Justicia De La Ue Se Pronuncia A Favor De Una Mayor Transparencia En El Acceso A Los Datos De La Aesa (Efsa), Luis González Vaqué
Luis González Vaqué
El TJUE anuló la sentencia del Tribunal General de la Unión Europea ‘ClientEarth y PAN Europe/AESA’ (T 214/11, EU:T:2013:483), así como la decisión de la Autoridad Europea de Seguridad Alimentaria (AESA) de 12 de diciembre de 2011.
Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, 28 U. Mich. J.L. Reform 305 (1995), Matthew R. Kipp, Paul B. Lewis
Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, 28 U. Mich. J.L. Reform 305 (1995), Matthew R. Kipp, Paul B. Lewis
Paul Lewis
With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the …
203 N. Lasalle Five Years Later: Answers To The Open Questions, 38 J. Marshall L. Rev. 61 (2004), Paul B. Lewis
203 N. Lasalle Five Years Later: Answers To The Open Questions, 38 J. Marshall L. Rev. 61 (2004), Paul B. Lewis
Paul Lewis
No abstract provided.
Ruth Bader Ginsburg's Jurisprudence Of Opportunity And Equality, Deborah Jones Merritt, David M. Lieberman
Ruth Bader Ginsburg's Jurisprudence Of Opportunity And Equality, Deborah Jones Merritt, David M. Lieberman
David Lieberman
No abstract provided.
Judging Expertise In Copyright Law, 14 J. Intell. Prop. L. 1 (2006), William K. Ford
Judging Expertise In Copyright Law, 14 J. Intell. Prop. L. 1 (2006), William K. Ford
William K. Ford
No abstract provided.
The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, 65 Md. L. Rev. 841 (2006), Jason J. Czarnezki, William K. Ford
The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, 65 Md. L. Rev. 841 (2006), Jason J. Czarnezki, William K. Ford
William K. Ford
This Article tests a model of judicial decision making that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of …
E-Obviousness, Glynn S. Lunney Jr.
E-Obviousness, Glynn S. Lunney Jr.
Glynn Lunney
As patents expand into e-commerce and methods of doing business more generally, both the uncertainty and the risk of unjustified market power that the present approach generates suggest a need to rethink our approach to nonobviousness. If courts fail to enforce the nonobviousness requirement and allow an individual to obtain a patent for simply implementing existing methods of doing business through a computer, even where only trivial technical difficulties are presented, entire e-markets might be handed over to patent holders with no concomitant public benefit. If courts attempt to enforce the nonobviousness requirement, but leave undefined the extent of the …
Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres
Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres
Susan Ayres
In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."
This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …
The New Ex Parte Communications Rule In Illinois: A Step Forward?, Ann Lousin
The New Ex Parte Communications Rule In Illinois: A Step Forward?, Ann Lousin
Ann M. Lousin
No abstract provided.
The Pluralistic Foundations Of The Religion Clauses, Steven Shiffrin
The Pluralistic Foundations Of The Religion Clauses, Steven Shiffrin
Steven H. Shiffrin
Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …
The Framers' Federalism And The Affordable Care Act, 44 Conn. L. Rev. 1071 (2012), Steven D. Schwinn
The Framers' Federalism And The Affordable Care Act, 44 Conn. L. Rev. 1071 (2012), Steven D. Schwinn
Steven D. Schwinn
Federalism challenges to the Affordable Care Act ("ACA") are inspired by the relatively recent resurgence in federalism concerns in the Supreme Court's jurisprudence. Thus, ACA opponents seek to leverage the Court-created distinction between encouragement and compulsion (in opposition to Medicaid expansion), and the Court-created federalism concern when Congress regulates in a way that could destroy the distinction between what is national and what is local (in opposition to universal coverage). But outside the jurisprudence, the text and history of constitutional federalism tell another story. The text and history suggest that the Constitution created a powerful federal government, of the people …
Foreword: The Impact Of Citizens United, 44 J. Marshall L. Rev. Xxiii (2011), Steven D. Schwinn
Foreword: The Impact Of Citizens United, 44 J. Marshall L. Rev. Xxiii (2011), Steven D. Schwinn
Steven D. Schwinn
No abstract provided.
Cognitive Dissonance Revisited: Roper V. Simmons And The Issue Of Adolescent Decision-Making Competence, 52 Wayne L. Rev. 1 (2006), Donald L. Beschle
Cognitive Dissonance Revisited: Roper V. Simmons And The Issue Of Adolescent Decision-Making Competence, 52 Wayne L. Rev. 1 (2006), Donald L. Beschle
Donald L. Beschle
No abstract provided.
Schools Of Jurisprudence, Robert Rodes
Schools Of Jurisprudence, Robert Rodes
Robert Rodes
Professor Rodes defines Jurisprudence as ''the legal profession's account of what it is about.'' Since they lawyers, judges, and legislators doing their work are all looking at the same phenomenon, writers on Jurisprudence must all draw from the same limited body of material in constructing their theories. In this book, Rodes examines these materials and then classifies the various schools of Jurisprudence according to which of the materials they use and how they use them. In describing the available materials, Rodes looks first at what he calls the ''internal account'': legal work considered in itself, the definition and scope of …
Foreword, 37 J. Marshall L. Rev. 317 (2004), Samuel R. Olken
Foreword, 37 J. Marshall L. Rev. 317 (2004), Samuel R. Olken
Samuel R. Olken
No abstract provided.
Justice Sutherland Reconsidered, 62 Vand. L. Rev. 639 (2009), Samuel R. Olken
Justice Sutherland Reconsidered, 62 Vand. L. Rev. 639 (2009), Samuel R. Olken
Samuel R. Olken
No abstract provided.
“Stop Me Before I Get Reversed Again”: The Failure Of Illinois Appellate Courts To Protect Their Criminal Decisions From United States Supreme Court Review, 36 Loy. U. Chi. L.J. 893 (2005), Timothy P. O'Neill
Timothy P. O'Neill
No abstract provided.
The Clear Initiative And Mental States: 1½ Problems Solved, 41 J. Marshall L. Rev. 701 (2008), Timothy P. O'Neill
The Clear Initiative And Mental States: 1½ Problems Solved, 41 J. Marshall L. Rev. 701 (2008), Timothy P. O'Neill
Timothy P. O'Neill
No abstract provided.