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Articles 61 - 90 of 102
Full-Text Articles in Jurisprudence
The Decreasing Ontological Density Of The State In Catholic Social Doctrine, Patrick Mckinley Brennan
The Decreasing Ontological Density Of The State In Catholic Social Doctrine, Patrick Mckinley Brennan
Working Paper Series
Over the last century-plus, Catholic social thought has gradually reduced the ontological density of the state, to the point that the state now appears to have only a tentative grasp on the natural law basis of its legitimacy. During the first part of the twentieth century, Catholic social doctrine tended to view the legitimate state as a participant in the divine rule; although draped in a sacred mantle, the state was subject to the limits imposed by the divine and natural law. In response to the totalitarian states’ transgressing of those limits at mid-century, Catholic thinkers reduced the scope and …
The Reemergence Of Restitution: Theory And Practice In The Restatement (Third) Of Restitution, Chaim Saiman
The Reemergence Of Restitution: Theory And Practice In The Restatement (Third) Of Restitution, Chaim Saiman
Working Paper Series
The ALI’s Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism, and shows that the Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels in fact make a difference, and assesses which recoveries are more (and less) likely under …
The Pragmatic Populism Of Justice Stevens' Free Speech Jurisprudence, Gregory P. Magarian
The Pragmatic Populism Of Justice Stevens' Free Speech Jurisprudence, Gregory P. Magarian
Working Paper Series
In his three decades on the Supreme Court, Justice John Paul Stevens has developed a distinctive approach to the First Amendment. During his tenure, the Court’s majority has crystallized a theory of First Amendment speech protection as an abstract, negative protection of individual autonomy against government interference. In contrast, Justice Stevens’ pragmatic judicial methodology has caused him to place greater emphasis on free speech decisions’ practical consequences, particularly their effectiveness in making democratic debate inclusive as to both participants and subject matter in order to ensure robust, well-informed public discourse. Alone on the present Court, Justice Stevens manifests a deep …
Parades Of Horribles, Circles Of Hell: Ethical Dimensions Of The Publication Controversy, David S. Caudill
Parades Of Horribles, Circles Of Hell: Ethical Dimensions Of The Publication Controversy, David S. Caudill
Working Paper Series
This article examines the ethical dimensions of the controversy over no-citation rules and current publication practices. In the literature concerning that controversy, ethical concerns are often mentioned, but usually in tandem with other concerns. Professor Caudill isolates and categorizes the different types of ethical dilemmas, and demonstrates that at different levels of the controversy, the ethical concerns are different. He identifies three levels--the controversy over no-citation rules, the broader controversy over publication practices, and the even broader controversy over privatization of law (the so-called disappearing trial, ADR, and the end of law as we know it).
Substantive Due Process As A Source Of Constitutional Protection For Nonpolitical Speech, Gregory P. Magarian
Substantive Due Process As A Source Of Constitutional Protection For Nonpolitical Speech, Gregory P. Magarian
Working Paper Series
Present First Amendment doctrine presumptively protects anything within the descriptive category “expression” from government regulation, subject to balancing against countervailing government interests. As government actions during the present war on terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent – the expressive activity most integral to our constitutional design. At the same time, present doctrine fails to give a clear account of why the Constitution protects expressive autonomy and when that protection properly should yield to government interests, leading to an inconsistent and unsatisfying free speech regime. In this article, Professor Magarian advocates …
Law And Who We Are Becoming, Patrick Mckinley Brennan
Law And Who We Are Becoming, Patrick Mckinley Brennan
Villanova Law Review
No abstract provided.
Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady
Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady
Working Paper Series
Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded—at least in theory—significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of …
Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll
Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll
Working Paper Series
Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle …
Holmes On Natural Law, Robert P. George
The Stages Of Legal Reasoning: Formalism, Analogy, And Realism, Wilson Huhn
The Stages Of Legal Reasoning: Formalism, Analogy, And Realism, Wilson Huhn
Villanova Law Review
No abstract provided.
Natural Law And Public Reasons, Kent Greenawalt
Natural Law And Public Reasons, Kent Greenawalt
Villanova Law Review
No abstract provided.
Does It Take A Village - Privatization, Patterns Of Restrictiveness And The Demise Of Community, Paula A. Franzese
Does It Take A Village - Privatization, Patterns Of Restrictiveness And The Demise Of Community, Paula A. Franzese
Villanova Law Review
No abstract provided.
What Is Morality Anyway, Michael J. Perry
Corporate Decisionmaking And The Moral Rights Of Employees: Participatory Management And Natural Law, Stephen M. Bainbridge
Corporate Decisionmaking And The Moral Rights Of Employees: Participatory Management And Natural Law, Stephen M. Bainbridge
Villanova Law Review
No abstract provided.
The Illusion And Allure Of Textualism, Stephen A. Plass
The Illusion And Allure Of Textualism, Stephen A. Plass
Villanova Law Review
No abstract provided.
Zen And The Art Of Lawyering, James L. Mchugh
Zen And The Art Of Lawyering, James L. Mchugh
Villanova Law Review
No abstract provided.
Bats And Owls And The Insane Moon: The Search For The Republic's Unwritten Constitution, E.F. Roberts
Bats And Owls And The Insane Moon: The Search For The Republic's Unwritten Constitution, E.F. Roberts
Villanova Law Review
No abstract provided.
The Justice Conundrum, Marshall J. Breger
Interpretation In Law - Toward A Reconstruction Of The Current Debate, Dennis M. Patterson
Interpretation In Law - Toward A Reconstruction Of The Current Debate, Dennis M. Patterson
Villanova Law Review
No abstract provided.
Death Of Conflicts, Mary Jane Morrison
Crime, Punishment And Responsibility, T. Brian Hogan
Crime, Punishment And Responsibility, T. Brian Hogan
Villanova Law Review
No abstract provided.
The Fission And Fusion Of Is-Ought In Legal Philosophy, S. Prakash Sinha
The Fission And Fusion Of Is-Ought In Legal Philosophy, S. Prakash Sinha
Villanova Law Review
No abstract provided.
Toward A Phenomenological Approach To Law: A Treatment For The Schizophrenia Of Contemporary Legal Regimes, George S. Robinson
Toward A Phenomenological Approach To Law: A Treatment For The Schizophrenia Of Contemporary Legal Regimes, George S. Robinson
Villanova Law Review
No abstract provided.
Preventable Law And Family Law: Pre-Marital Phases And Purposes, James F. Falco
Preventable Law And Family Law: Pre-Marital Phases And Purposes, James F. Falco
Villanova Law Review
No abstract provided.
Edmond Cahn And The Search For Empirical Justice, Jay A. Sigler
Edmond Cahn And The Search For Empirical Justice, Jay A. Sigler
Villanova Law Review
No abstract provided.
The American Legal Realists And An Empirical Science Of Law, David H. Moskowitz
The American Legal Realists And An Empirical Science Of Law, David H. Moskowitz
Villanova Law Review
No abstract provided.
Old Kontract Principles And Karl's New Kode: An Essay On The Jurisprudence Of Our New Commercial Law, Eugene F. Mooney
Old Kontract Principles And Karl's New Kode: An Essay On The Jurisprudence Of Our New Commercial Law, Eugene F. Mooney
Villanova Law Review
No abstract provided.
Law, Morality And Purpose, Marshall Cohen
Thoughts On The Symposium: The Moraliy Of Law, Donald A. Giannella
Thoughts On The Symposium: The Moraliy Of Law, Donald A. Giannella
Villanova Law Review
No abstract provided.
Observations On The Morality Of Law, John E. Murray Jr.
Observations On The Morality Of Law, John E. Murray Jr.
Villanova Law Review
No abstract provided.