Jurisprudence Commons^™

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.

Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv

Charles E. A. Lincoln IV

This Article uses the dialectical ideas of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) in application to the progression of United States voting laws since the founding. This analysis can be used to interpret past progression of voting rights in the US as well as a provoking way to predict the future trends in US voting rights. First, Hegel’s dialectical method is established as a major premise. Second, the general accepted history of United States voting laws from the 1770s to the current day is laid out as a minor premise. Third, the major premise of Hegel’s dialectical method weaves …

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …

The Rise And Rise Of The One Percent: Getting To Thomas Piketty's Wealth Dystopia, Shi-Ling Hsu

Shi-Ling Hsu

Thomas Piketty's Capital in the Twenty-first Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty's core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class – who are the predominant owners of capital – will grow their wealth faster than economies grow, which …

An Other History Of Knowledge And Decision In Precautionary Approaches To Sustainability, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

In this paper, I offer an alternative reading of precaution with the hope of recovering the capacity of this ethic to facilitate legal and political decisions. Despite being a popular instrument of international environmental governance, decision-makers continue to understand this principle as reflecting an immemorial and natural instinct for preserving the environment in cases of scientific uncertainty. Such a reading, however, ignores the history and moral basis underlying this principle and thereby renders it obvious, and automatically adaptable to the politics of Sustainable Development. By offering a thicker history of precautionary governance at exemplary moments of ecological crisis I trace …

Adam Smith's Lectures On Jurisprudence-Justice, Law, And The Moral Economy, Walter J. Kendall Lll

Walter J. Kendall lll

Adam Smith, a leading thinker of the British Enlightenment, is universally known as the author of the Wealth of Nations and an economic theorist. He is less well known as the author of a Theory of Moral Sentiments and an ethicist. And known almost not at all for his Lectures on Jurisprudence or as a legal theorist. This essay looks at Smith’s thought through the lens of his Lectures on Jurisprudence. It highlights the almost paradoxical positions Smith had on self-interest, markets, government, and economic expansion. Obscured by his reputation and these paradoxes are his views on justice, equality, and …

Nigger Manifesto: Ideological And Intellectual Discrimination Inside The Academy, Ellis Washington

Ellis Washington

Draft – 22 March 2014

Nigger Manifesto

Ideological Racism inside the American Academy

By Ellis Washington, J.D.

Abstract

I was born for War. For over 30 years I have worked indefatigably, I have labored assiduously to build a relevant resume; a unique curriculum vitae as an iconoclastic law scholar zealous for natural law, natural rights, and the original intent of the constitutional Framers—a Black conservative intellectual born in the ghettos of Detroit, abandoned by his father at 18 months, who came of age during the Detroit Race Riots of 1967… an American original. My task, to expressly transcend the ubiquitous …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer

Nancy J. Knauer

The Global Recession of 2008 and ensuing austerity measures have renewed the urgency surrounding the call for fundamental tax reform. Before embarking on fundamental tax reform, this Article proposes adding a critical lens to existing US tax policy to ensure that any proposals for change are informed, transparent, and responsive to the needs (and abilities) of individual taxpayers. This Article makes the case for a specific method of inquiry – Critical Tax Policy – that is built on the articulation of difference rather than false assumptions of sameness. Critical Tax Policy incorporates the insights of a growing international tax equity …

“Nixon’S Sabotage”: How Politics Pushed The “Discriminatory Purpose” Requirement Into Equal Protection Law, Danieli Evans

Danieli Evans

This article describes the way that politics—resistance from the elected branches coupled with President Nixon appointing Chief Justice Burger—shaped the Court’s unanimous decision in Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971), a school desegregation case that played a crucial role in limiting the forms of state action considered unconstitutional discrimination. Chief Justice Burger defied longstanding Supreme Court procedure to assign himself the majority opinion even though he disagreed with the majority outcome. Justice Douglas alleged that he did this “in order to write Nixon’s view of freedom of choice into the law.” Justice Burger’s opinion laid the foundation for limiting …

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

Wayne Barnes

There are many voices in American politics claiming that various candidates, laws and policies are necessitated by a “Christian” worldview. Many of these voices use explicit public rhetoric that their position is the one compelled by “Christian” principles. Although religious voices have been present in the United States since its founding, the volume and urgency of the voices seems to have increased dramatically in the last several decades, during the so-called “culture wars.” These voices famously come from the Christian Religious Right, advocating socially conservative laws on issues such as abortion and same-sex marriage. But there are also voices from …

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz

Justin Schwartz

Is the family subject to principles of justice? In A Theory of Justice, John Rawls includes the (monogamous) family along with the market and the government as among the "basic institutions of society" to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes to the family, and in particular its impact on fair equal opportunity (the first part of the the Difference …

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

What's Wrong With Exploitation?, Justin Schwartz

Justin Schwartz

Abstract: Marx thinks that capitalism is exploitative, and that is a major basis for his objections to it. But what's wrong with exploitation, as Marx sees it? (The paper is exegetical in character: my object is to understand what Marx believed,) The received view, held by Norman Geras, G.A. Cohen, and others, is that Marx thought that capitalism was unjust, because in the crudest sense, capitalists robbed labor of property that was rightfully the workers' because the workers and not the capitalists produced it. This view depends on a Labor Theory of Property (LTP), that property rights are based ultimately …

In Defence Of Exploitation, Justin Schwartz

Justin Schwartz

The concept of exploitation is thought to be central to Marx's Critique of capitalism. John Roemer, an analytical (then-) Marxist economist now at Yale, attacked this idea in a series of papers and books in the 1970s-1990s, arguing that Marxists should be concerned with inequality rather than exploitation -- with distribution rather than production, precisely the opposite of what Marx urged in The Critique of the Gotha Progam.

This paper expounds and criticizes Roemer's objections and his alternative inequality based theory of exploitation, while accepting some of his criticisms. It may be viewed as a companion paper to my What's …

The Paradox Of Ideology, Justin Schwartz

Justin Schwartz

A standard problem with the objectivity of social scientific theory in particular is that it is either self-referential, in which case it seems to undermine itself as ideology, or self-excepting, which seem pragmatically self-refuting. Using the example of Marx and his theory of ideology, I show how self-referential theories that include themselves in their scope of explanation can be objective. Ideology may be roughly defined as belief distorted by class interest. I show how Marx thought that natural science was informed by class interest but not therefore necessarily ideology. Capitalists have an interest in understanding the natural world (to a …

Functional Explanation And Metaphysical Individualism, Justin Schwartz

Justin Schwartz

A number of (present or former) analytical Marxists, such as Jon Elster, have argued that functional explanation has almost no place in the social sciences. (Although the discussion is framed in terms of a debate among analytical Marxists, the point is quite general, and Marxism is used for illustrative purposes.) Functional explanation accounts for what is to be explained by reference to its function; thus, sighted organism have eyes because eyes enable them to see. Elster and other critics of functional explanation argue that this pattern of explanation is inconsistent with "methodological individualism," the idea, as they understand it, that …