Jurisprudence Commons^™

Embracing Segregation: The Jurisprudence Of Choice And Diversity In Race And Sex Separatism In Schools, Nancy Levit

Nancy Levit

Fifty years after Brown v. Board of Education, segregation based on race and sex is sweeping the nation's educational systems. Courts are rapidly dismantling desegregation orders, and when those desegregation orders end, school districts racially resegregate. At precisely the same time this end to racial desegregation is occurring, the government is beginning to sponsor sex segregation in schools as well. The No Child Left Behind Act provides over $400 million in federal funds for experiments in education, such as single-sex schools and classes. Embracing Segregation draws connections between the end of racial desegregation and the beginning of government-sponsored sex segregation …

Judicial Knowledge System’S Reproduction Of Supreme Court：To The Judicial Process Of Economic Regulation,For Example（最高法院司法知识体制再生产──以最高法院规制经济的司法过程为例）, Meng Hou

Hou Meng

No abstract provided.

The Seller's Right To Cure A Failure To Perform In International Sales, Jonathan Yovel

Jonathan Yovel

The right of a defaulting party to cure a non-performance under the condition that such cure does not create any – or at least any excessive – hardship for the aggrieved party, correlated by the aggrieved party’s obligation to receive such curative performance, has emerged as the single most innovative contribution of the Uniform Commercial Code to sales law in general. However, in comparative perspective the cure doctrine is by no means universal nor uniform. This study offers a construction of the meaning of contractual cure and in particular its relation to the aggrieved party’s power to terminate the contract …

The Function Of The Supreme People’S Court Of Regulating Economy——Re-Evaluation Of The Zhongfu Industry Guarantee Case(最高法院规制经济的功能──再评“中福实业公司担保案”), Meng Hou

Hou Meng

No abstract provided.

How The Supreme Court Regulates Economy: Review On Exterior Coordination Cost（最高人民法院如何规制经济──外部协调成本的考察）, Meng Hou

Hou Meng

No abstract provided.

Knowledge Constnlction And Academic Transformation On Sociology Of Law Studies In China(中国法律社会学的知识建构和学术转型), Meng Hou

Hou Meng

No abstract provided.

Isn't That Unconstitutional? Religion And Professional Life, Amelia J. Uelmen

Amelia J Uelmen

No abstract provided.

What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger

Linda L. Berger

No abstract provided.

Running Backs, Wolves, And Other Fatalities: How Manipulations Of Coherence In Legal Opinions Marginalize Violent Death, Jonathan Yovel

Jonathan Yovel

By examining legal cases that involve violent death and its marginalization by the courts, this essay looks into the relations between narrative coherence and narrative absurd in judicial opinions. Coherence, rather than a static, unequivocal characteristic of legal narratives, is studied here as a highly manipulable narrative and rhetorical performance. Giving a performative twist to reader-response approaches I do not really ask what is the meaning of this text (as construed by its reading)? but rather, working from the position of the text's discursive community, what does this text do? The reading of these cases explores how judicial narration and …

Political And Legal Governance Under The Judicial Reform: A Case Study On Basic-Level Political And Legal Committee（司法改革背景下的政法治理方式——基层政法委员会制度个案研究）, Meng Hou

Hou Meng

No abstract provided.

Manual De Derecho Procesal Civil, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Two Conceptions Of Relevance, Jonathan Yovel

Jonathan Yovel

Courts use complex modes of relevance judgments in regulating the introduction of information and construction of factual narratives; likewise, common law works both through and around relevance presuppositions in determining doctrine. This study examines different functions of relevance - conceived as different conceptions, at times competing, at times interdependent. The distinctions between these conceptions are arranged on three levels: 1) a normative/"causal" level, arguing for the status of relevance as a requirement for a "meaning-based" conception of entailment and drawing on discussions from relevance logic (RL) and modal logic; 2) a pragmatic/metapragmatic level that explores the ways in which law's …

Law As Largess: Shifting Paradigms Of Law For The Poor, Deborah M. Weissman

Deborah M. Weissman

The article examines the tension between the principles of the Rule of Law and cultural norms of self-sufficiency. It begins by reviewing the principles of the Rule of Law as an ideal, the pursuit of which has led to historical efforts to meet the legal needs of the poor. It then examines recent legal events including federal statutory changes, three Supreme Court cases, and a federal circuit court case which have limited legal resources for those who cannot pay. The article then examines these developments in the context of a sea-change in the political environment of the nation, coinciding with …

Linguistics In Law, Alani Golanski

Alani Golanski

The "new textualism" is amenable to the use of linguists in legal cases. New textualists seek to interpret statutes "objectively," according to the "plain meaning" of the statutory terms; these jurists and scholars see plain-meaning analysis as linguistics, and linguistics as science. Law and linguistics pursue different ends, however, and linguists construing statutes will miss legally decisive issues. Modern linguistics theory is an area of central concern to cognitive psychologists as well as philosophers of mind and language. While not hegemonic, Chomsky's psychological program influences modern linguistics, and the linguist's approach often leads in a different direction from that taken …

Theorizing The Connections Among Systems Of Subordination, Nancy Levit

Nancy Levit

Theorizing the Connections Among Systems of Subordination introduces a symposium that addresses issues on the leading edge of identity theory, race theory, and critical social theory. It explains the concepts of anti-essentialism, intersectionality, multiple consciousness, multi-dimensionality, and post-intersectionality. It investigates the ways specific types of oppression - such as racism, sexism, classism, and homophobia - support and feed off of one another. It explores the dynamics of subordination that make different forms of subordination connected to each other - the mechanisms by which subordinating systems buttress each other. Where one sees sexism, one frequently can find racism; where classism exists, …

Teoría General De La Prueba Judicial, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

China's Post-Modern Legal Research And Its Prospects（中国的后现代法学研究及其前景）, Meng Hou

Hou Meng

No abstract provided.

Why Legal Scholars Get Daubert Wrong: A Contextualist Explanation Of Law's Epistemology, Alani Golanski

Alani Golanski

Daubert requires the court to make judgments about scientific evidence. But judges, like jurors, are lay persons in relation to such evidence. So Daubert has been criticized as requiring too much of the court, and such alternatives as blue ribbon panels have been proposed. This article shows that, notwithstanding any problems that Daubert itself might have, the Daubert scholarship is significantly hampered by the way legal scholars categorize knowledge. A "contextualist" (as opposed to "invariantist") theory of knowledge is both philosophically best, and makes sense of law's relation to science.

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 …

Arguments In Favour Of A Functional Theory Of Fundamental Rights, Gianluigi Palombella

Gianluigi Palombella

The article suggests a relational concept of fundamental rights. This concept

enhances the «functional» rôle played by some of the rights in the system of a state

governed by the rule of law, rather than an ethical universality or a substantial content

coinciding with any list of «human» rights. Fundamental rights belong to the fundamental

(ideal, substantice and normative) criteria of recognition/selection of actions and norms in

the institutional/normative practice of a legal order. Given this premise, the work analyses

some relevant issues: universal-fundamental nexus, property rights, liberty rights, social

rights. Fundamental rights refuse any rigid classification which identifies and …

A Different Kind Of Sameness: Beyond Formal Equality And Antisubordination Principles In Gay Legal Theory And Constitutional Doctrine, Nancy Levit

Nancy Levit

Gay legal theory is at a crossroads reminiscent of the sameness/difference debate in feminist circles and the integrationist debate in critical race theory. Formal equality theorists take the heterosexual model as the norm and then seek to show that gays, lesbians, bisexuals, and transsexuals - except for their choice of partners - are just like heterosexuals. Antisubordination theorists attack the heterosexual model itself and seek to show that a society that insists on such a model is unjust. Neither of these strategies is wholly satisfactory. The formal equality model will fail to bring about fundamental reforms as long as sexual …

Analogical Reasoning As Translation: The Pragmatics Of Transitivity, Jonathan Yovel

Jonathan Yovel

This paper attempts to examine the underlying structure of analogical reasoning in decision making. The immediate (but not exclusive) context is the form of reasoning commonly seen as prevalent in common-law judicial decision making. Following Wittgenstein and Strawson the paper identifies the problem of the contingency of transitivity of analogical relations as a serious impediment to analogical reasoning. It then proceeds to offer a method of translation that delineates the borders of contingency and analyticity of transitivity in such cases, as well as proposes how these borders may be manipulated. The theoretical insight is to treat analogical relations anaphorically, as …

What Is Contract Law 'About'? Speech Act Theory And A Critique Of 'Skeletal Promises', Jonathan Yovel

Jonathan Yovel

What is contract law about? One way of looking at it is to conceive of the subject-matter of contract law in terms of promises - just as tort law arguably revolves around the concepts of accident or harm. Much like accidents - first-year law students are taught - promises are out there in the world, to be classified and distinguished so as to privilege some with legal enforceability. There is a language/world of promises, this approach seems to indicate, and a language/world of contracts. It is a main function of contract law to perform translations from the one to the …

Critical Of Race Theory: Race, Reason, Merit And Civility, Nancy Levit

Nancy Levit

A hazard lurks in any but the most careful representation of another's viewpoint. Call it "slippage" or the "essentialist error," the point is that communication rarely does complete justice to its object. The problem is compounded when the communication is mediated. We all know that between a story and its retelling, something will get lost in translation. Consider feminism, gay legal theory, and critical race theory, and their depictions in academic journals and the popular media. Newspapers and news magazines have recently published a spate of academic trash talk accusing critical race theorists of "playing the race card" and indulging …

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 …

If It Can't Be Lake Woebegone...A Nationwide Survey Of Law School Grading And Grade Normalization Practices, Nancy Levit, Robert Downs

Nancy Levit

This article explores various methods of grade normalization used by law schools. Based on a survey of 116 responding ABA accredited law schools, 84% have some form of grade normalization policy, and the trend is toward adoption of grade normalization. The survey assessed the types of normalization plans (distributional requirements, required means, required medians, set standard deviations, and informal policies), as well as the reasons schools have adopted such plans. It also inquired about methods for ensuring faculty compliance as well as justifications for departures from grade norms.

The article considers and responds to the arguments against grade normalization and …

Feminism For Men: Legal Ideology And The Construction Of Maleness, Nancy Levit

Nancy Levit

It may seem a little odd to suggest that feminist theory has overlooked men. Yet, in several important respects, apart from the role of culprit, men have been largely omitted from feminism. Feminist legal theorists have paid mild attention to the "Can men be feminists?" question but this issue is usually relegated to footnotes. The negative effect gender role stereotypes have on men is typically subsidiary to the main focus of feminist legal literature, which has concentrated on documenting the patterns of subordination of women and on questions of feminist ideology.

The primary purpose of this article is to suggest …

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 …