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Full-Text Articles in Jurisprudence

Index Theory: The Law, Promise, And Failure Of Financial Indices, Andrew Verstein Jan 2013

Index Theory: The Law, Promise, And Failure Of Financial Indices, Andrew Verstein

Lecturer and Other Affiliate Scholarship Series

Financial indices, like the S&P 500 or the Consumer Price Index, have become a ubiquitous feature of our financial markets. One index, the London InterBank Offered Rate ("Libor"), may be the world’s most important number, an interest rate benchmark upon which hundreds of trillions of dollars depend. Yet, almost every day new revelations emerge that Libor was tampered with during the height of the financial crisis by one or many of the world's most prominent banks, with billions of dollars potentially misappropriated. This index disruption has attracted tremendous interest from regulators, private litigants, and market observers. Despite ...


Wasting The Planet: What A Storied Doctrine Of Property Brings To Bear On Environmental Law And Climate Change, Anthony L.I. Moffa Apr 2012

Wasting The Planet: What A Storied Doctrine Of Property Brings To Bear On Environmental Law And Climate Change, Anthony L.I. Moffa

Student Scholarship Papers

To many, sustainability is nothing more than another legally ineffectual buzz word manufactured by the modern environmental movement. However, such a narrow view of the concept ignores a tremendous amount of historical precedent and jurisprudence underlying it. Specifically, the doctrine of waste in Anglo-American property law has long been a vehicle for those with an interest in the future to restrict resource-depleting activities in the present, rendering it the manifestation of sustainability as a concrete legal obligation. It is through this doctrine, then, that the rich concept of sustainability as it applies to climate change policymaking can be best understood ...


Standing In Barack Obama's Shoes: Evaluating The President's Jurisprudence Of Empathy In Light Of James Wilson's Jurisprudence Of “Common Sense”, John Rollert Aug 2010

Standing In Barack Obama's Shoes: Evaluating The President's Jurisprudence Of Empathy In Light Of James Wilson's Jurisprudence Of “Common Sense”, John Rollert

Student Scholarship Papers

This article explains what President Barack Obama meant when he called empathy an “essential ingredient” in judicial decision making and, thus, the outstanding quality he would look for in his Supreme Court nominees. It also provides a comparative study between Obama’s jurisprudence of empathy and Justice James Wilson’s jurisprudence of common sense in order to illustrate the dangers of deciding difficult Supreme Court cases with recourse to unconventional, extra-legal tools.


Adverse Reactions: Structure, Philosophy, And Outcomes Of The Patient Protection And Affordable Care Act, Michael A. Lee Jr Jul 2010

Adverse Reactions: Structure, Philosophy, And Outcomes Of The Patient Protection And Affordable Care Act, Michael A. Lee Jr

Student Scholarship Papers

On March 24th, 2010, President Obama signed the Patient Protection and Affordable Care Act, declaring “everybody should have some basic security when it comes to their health care.” This Note provides legal scholarship’s first comprehensive examination of this complex legislation. Second, it reframes the bill by proposing that its miscellaneous-seeming provisions are designed to protect a single, central provision: the ban on health discrimination. Finally, it argues that underlying economic forces will likely cause PPACA to do more harm than good. While health reform may ultimately prove successful, America has good reason to be concerned.


Relational Formalism, Linguistic Theory And Legal Construction, Jonathan Yovel Apr 2010

Relational Formalism, Linguistic Theory And Legal Construction, Jonathan Yovel

Faculty Scholarship Series

Legal formalism and legal relationalism are traditionally thought of as defining opposite poles of jurisprudential analysis. This study develops the notion of “relational formalism” as it emerges from practices of commercial law and from linguistic theory. As an interpretation of practice, relational formalism—although maintaining the precedence of formalist construction over functional analysis—does so while responding to practical concerns and interests entailed by relations. It argues that legal formalism needs not be an expression of positivistic commitments, and can be approached on relational grounds, and must respond to those. The study empirically analyzes a well-known problem of negotiable instruments ...


Language And Power In A Place Of Contingencies: Law And The Polyphony Of Lay Argumentation, Jonathan Yovel Apr 2010

Language And Power In A Place Of Contingencies: Law And The Polyphony Of Lay Argumentation, Jonathan Yovel

Faculty Scholarship Series

This article analyzes legal language through the rhetorical, argumentative and narrative structures employed by non-represented litigants, whose linguistic interaction with the court is not mediated by professional counsel. It identifies two distinct concerns that lay litigants express when approaching justice: rhetorical effectiveness in terms of persuading the court of their case; and authentic expression of their justice-related concerns, moral standing, and other extra-legal parameters. Existing research correlates these concerns, roughly, with rule-oriented and relational linguistic approaches, respectively, and acknowledges tradeoffs that lay litigants perform between them. In this research, however, litigants were observed to resist such tradeoffs, requiring that their ...


Leveraging International Economic Tools To Confront Child Soldiering, Diane Desierto Feb 2010

Leveraging International Economic Tools To Confront Child Soldiering, Diane Desierto

Student Scholarship Papers

Child soldiers in theatres of armed conflict represent the worst and most abusive forms of child labour. States parties to the conflict, as well as third party States, bear differentiated and continuing international legal obligations in relation to child soldiering. Not only are States parties to the conflict barred under international humanitarian law from drafting this class of protected persons into child soldiering, but it may also be argued that other States in the multilateral economic system can independently take measures pursuant to the General Exceptions (Article XX) and Security Exceptions (Article XXI) clauses of the GATT 1994 to ensure ...


The Dual Foundation Of Universal Jurisdiction: Towards A Jurisprudence For The ‘Court Of Critique’, Itamar Mann Jan 2010

The Dual Foundation Of Universal Jurisdiction: Towards A Jurisprudence For The ‘Court Of Critique’, Itamar Mann

Student Scholarship Papers

This article revisits the case of The State of Israel v Adolph Eichmann and calls for renewed attention to the analysis of universal jurisdiction in this early example of it. Precisely because the Israeli court’s notion of universal jurisdiction is foreign to contemporary readers, it provides fresh guidance on a doctrine that has recently gained enormous importance in global politics. The Eichmann Opinion suggests a two-tiered test: among the cases satisfying the traditional conditions for universal jurisdiction, only those cases in which there is a political interest in pressing charges should be selected. As a world court with universal ...


The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum May 2009

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Faculty Scholarship Series

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...


Proportionality Balancing And Global Constitutionalism, Alec Stone Sweet, Jud Mathews Mar 2008

Proportionality Balancing And Global Constitutionalism, Alec Stone Sweet, Jud Mathews

Faculty Scholarship Series

Over the past fifty years, proportionality balancing – an analytical procedure akin to “strict scrutiny” in the United States – has become the dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part I proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts II and III provide a genealogy of proportionality, trace ...


Bush V. Gore As Precedent, Chad W. Flanders Mar 2007

Bush V. Gore As Precedent, Chad W. Flanders

Student Scholarship Papers

My essay treats the thorny question of the precedential value of Bush v. Gore from three angles. In the first part, I look at the history of the Supreme Court limiting its decisions to the facts of present case. The venture into history is designed to test the argument made by some that the language limiting the reach of Bush v. Gore is an innocuous example of narrowing the scope of the principle propounded in Bush, rather than an objectionable restriction of the ruling to only one unique set of circumstances ­ the circumstances of Bush v. Gore. The second part ...


“For The Murder Of His Own Female Slave, A Woman Named Mira...” : Law, Slavery And Incoherence In Antebellum North Carolina, Anthony V. Baker Mar 2006

“For The Murder Of His Own Female Slave, A Woman Named Mira...” : Law, Slavery And Incoherence In Antebellum North Carolina, Anthony V. Baker

Student Scholarship Papers

“for the murder of his own female slave, a woman named Mira...” : Law, Slavery and Incoherence in Antebellum North Carolina

__________________________________________________________

“The death of culture begins when its normative institutions fail to communicate ideals in ways that remain inwardly compelling...”

Phillip Rieff

In the spring of 1839 a ‘slave owner,’ ­ Mr. John Hoover ­ was arrested for the brutal murder of his own ‘property,’ a young woman named Mira. Convicted of the capital charge by a jury of his peers ­ 12 fellow ‘slave owners,’ as the relevant law then required ­ his appeal to the North Carolina Supreme Court was rejected in ...


The Case For The Legislative Override, Nicholas Stephanopoulos Mar 2005

The Case For The Legislative Override, Nicholas Stephanopoulos

Student Scholarship Papers

Abstract: What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This Article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the Article explains which institutional and political contexts are hospitable to the override ...


The Origins Of "Reasonable Doubt", James Q. Whitman Mar 2005

The Origins Of "Reasonable Doubt", James Q. Whitman

Faculty Scholarship Series

The "reasonable doubt" rule is notoriously difficult to define, and many judges and scholars have deplored the confusion it creates in the minds of jurors. Yet "reasonable doubt" is regarded as a fundamental part of our law. How can a rule of such fundamental importance be so difficult to define and understand?

The answer, this paper tries to show, lies in history. The "reasonable doubt" rule was not originally designed to serve the purpose it is asked to serve today: It was not originally designed to protect the accused. Instead, it was designed to protect the souls of the jurors ...


Strict Criminal Liability Limiting The State's Power To Condemn, Andrew Verstein Jan 2003

Strict Criminal Liability Limiting The State's Power To Condemn, Andrew Verstein

Lecturer and Other Affiliate Scholarship Series

H. L. A. Hart argues that strict criminal liability often undermines the moral condemnation associated with punishment and therefore its capacity for deterrence. Hart explains that insofar as legal punishment expresses the "odium, if not the hostility" of a community towards those who break its laws strict liability forces us to either condemn those who are not deserving of condemnation or to negate the moral condemnation of the law in general. One choice is immoral and the other reduces the effectiveness of a significant deterrent and is therefore counterproductive. Either way, the consequences of strict liability are undesirable. In this ...


Multiple Ironies: Brown At 50, Ronald S. Sullivan Jr. Jan 2003

Multiple Ironies: Brown At 50, Ronald S. Sullivan Jr.

Faculty Scholarship Series

Brown v. Board of Education occupies a vaunted space in American
jurisprudence. One commentator writes that Brown is the most
celebrated case in the Court's history. Equally laudatory, another
commentator remarks: "In the half century since the Supreme Court's
decision, Brown has become a beloved legal and political icon." A
third proclaims that, "Brown forever changed the role of the United States Supreme Court in American politics and society." To the lay
public, Brown sits among a small pantheon of cases that is widely recognizable
to the average American.' Miranda and Roe v. Wade
likely are the only ...


Legal Education: “Cofradia” Or “Archicofradia”?, Alfredo Bullard, Ana Cecilia Maclean Jan 2002

Legal Education: “Cofradia” Or “Archicofradia”?, Alfredo Bullard, Ana Cecilia Maclean

SELA (Seminario en Latinoamérica de Teoría Constitucional y Política) Papers

On many occasions, law school makes students—and practicing lawyers—experience the same feeling produced by this anecdote (which, by the way, is real). There are questions and concepts taught at law schools, that don’t have any relationship with the real world or any practical use.

But, additionally, these questions—irrespective of their lack of connection to the topic that was supposed to be the object of the exam—reflect the capacity of conceptualism to lead us to questions with no answer. It was evident that, after her answer to the first question, the student would be completely unable ...


The Jurisprudence Of The Burger Court: A Reading Of Michigan V. Long, Jan Ginter Deutsch Jan 1985

The Jurisprudence Of The Burger Court: A Reading Of Michigan V. Long, Jan Ginter Deutsch

Faculty Scholarship Series

Law is currently perceived by many as a set of technicalities used to keep criminals out of jail. Even those lawyers opposed to the Warren Court expansion of constitutional rights see such a view as an oversimplification, a shibboleth - a shibboleth, how­ ever, to which the facts in Michigan v. Long 1 seem tailor-made.

One night, in a rural area, a car was travelling erratically and at excessive speed. It swerved into a ditch. Police officers stopped to investigate. The car's occupant, who was at the rear of the car, and "appeared to be under the influence of something ...


Crisis And Proposed Solution: Half A Century Of Corporate Law, Jan Ginter Deutsch Jan 1985

Crisis And Proposed Solution: Half A Century Of Corporate Law, Jan Ginter Deutsch

Faculty Scholarship Series

"Greenmail" refers to purchases, at a premium over the market price, of shares of a corporation's stock from persons making a takeover bid. Greenmail can be seen as an aspect of the self- regulatory process, the combination of business practices and legal formalities, which defines United States capitalism. The reality of the system characterized by greenmail, however, involves a good deal more than self-regulation.


The New Police Corps., Jan Ginter Deutsch Jan 1983

The New Police Corps., Jan Ginter Deutsch

Faculty Scholarship Series

With each passing year a dwindling number of New Yorkers can recall the time when the cities of this State were considered safe places to live. New York City in particular has always been notable for excitement, noise, corruption and rackets. Violence, crime and discontent are not strangers to our streets; the New York City riots of 1963, 1943, 1963 and 1977 are proof. We have always had street thieves, prostitutes and pimps, hijackers and hustlers. Nevertheless even New York was a city where the ordinary citizen felt safe and was. As late as 1948, the City had the lowest ...


Zapata Corporation V Maldonado, Jan Ginter Deutsch Jan 1982

Zapata Corporation V Maldonado, Jan Ginter Deutsch

Faculty Scholarship Series

This article examines the Delaware Supreme Court decision of Zapata Corporation v. Maldonado and attempts to determine whether the opinion is good law. The author contends that the decision will lead to more litigation as there is no clear indication as to what makes a corporation's business judgment not to pursue a court action justifiable. However, only time will tell if it is a good precedent.


The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson Jan 1978

The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson

Faculty Scholarship Series

Between John Marshall's appointment to the Supreme Court in
1801 and Andrew Jackson's inauguration as President in 1829, the
Marshall Court declared one congressional act unconstitutional and
invalidated state statutes in fourteen cases. Among these cases were
many of Marshall's major judicial opinions, including Marbury v.
Madison Fletcher v. Peck, McCulloch v. Maryland,s Trustees of
Dartmouth College v. Woodward, and Gibbons v. Ogden.
Marshall's constitutional cases have been of enduring significance
and have generated widespread scholarly debate. Perhaps the
single issue that has most divided scholars is whether the great Chief
Justice should be understood ...


Practical View Of The Eleventh Amendment: Lower Court Interpretations And The Supreme Courts Reaction, Jan Ginter Deutsch Jan 1973

Practical View Of The Eleventh Amendment: Lower Court Interpretations And The Supreme Courts Reaction, Jan Ginter Deutsch

Faculty Scholarship Series

The eleventh amendment1 recently has emerged from the obscurity which surrounded its first 170 years of existence. Several aspects of con­ temporary political life have combined to cause heavier reliance on the amendment by state governments.2 The scope of government activity has widened to include areas previously under private control.3 In addition, due process and equal protection concepts have been expanded to include previously unrecognized claims against government defendants.4

Coupled with the broader interpretation of these constitutional protections is the heightened public interest in litigation against governmental organizations, evidenced by the increasing number of pro se ...


The Shareholders's Appraisal Remedy: An Essay For Frank Coker, Bayless Manning Jan 1962

The Shareholders's Appraisal Remedy: An Essay For Frank Coker, Bayless Manning

Faculty Scholarship Series

A DEAN of my acquaintance is fond of saying that every law school course
should be a course in jurisprudence. No one ever put this precept into practice
more fully than Frank Coker.
Somehow, as our mutual colleague Leon Lipson once observed, Frank's
jurisprudence rode unusually close to the surface. Between his most specific
statement and the most general philosophic premises underlying the statement
there was a minimum of intermediate steps. And the few connecting links
required were made to seem simple, even apparent. Frank's mind was elegant,
in the sense that a great mathematical proof is elegant.


Petrazycki's Psychological Jurisprudence: Its Originality And Importance, F. S. C. Northrop Jan 1956

Petrazycki's Psychological Jurisprudence: Its Originality And Importance, F. S. C. Northrop

Faculty Scholarship Series

Professor Babb's abridgment into one volume and his English translation of Petraiycki's mature legal works and Professor Tima- sheff's concise Introduction give the essentials of the context and con- tent of Petraiycki's legal science.' The context is important for un- derstanding the theory. The contents demonstrate Petraiycki's originality and establish him as a legal thinker of first rate importance


Contemporary Jurisprudence And International Law, F. S. C. Northrop Jan 1952

Contemporary Jurisprudence And International Law, F. S. C. Northrop

Faculty Scholarship Series

WORLD survival and progress in an atomic epoch depends on an effective
international law. Yet several recent students of the subject conclude that any
further attempt to improve international relations by legal means is not merely
unrealistic and impractical, but also likely to result in more harm than good.
Is this to be the final verdict? The purpose of this inquiry is to answer this
question by analyzing the major contemporary theories of jurisprudence and
their bearing on international law.


Underhill Moore's Legal Science: Its Nature And Significance, F. S. C. Northrop Jan 1950

Underhill Moore's Legal Science: Its Nature And Significance, F. S. C. Northrop

Faculty Scholarship Series

THE legal science of Underhill Moore was the product of the two
major movements of moder legal thought: legal realism and sociological
jurisprudence. It demonstrates both the strength and the limitations
of these two legal theories. His work had this somewhat paradoxical
character because he substituted scientifically exact methods and
deeds for the vivid but unverifiable, pseudo-descriptive prose in which
these two movements had all too often been previously expressed.
When this was done the actual capability of a legal science grounded in
a realistic application of scientific methods to social and legal facts was
revealed to be quite different ...


Book Review: The Province And Function Of Law, Felix S. Cohen Jan 1949

Book Review: The Province And Function Of Law, Felix S. Cohen

Faculty Scholarship Series

IN the maze of currents and cross-currents that characterize contemporary
writing on jurisprudence and legal philosophy there are not many points on
which common agreement can be found. But one point on which representatives
of the most widely disparate views might agree is that Julius Stone has
provided us with the best general introduction to jurisprudence that has yet
appeared in the English language. This is not to say that Stone has a keener
mind or a more fertile imagination or a more felicitous style or a broader
scholarship than Austin, Maine, Holmes or Pound. But jurisprudence, despite
all the ...


When Did The War Begin?, Edwin Borchard Jan 1947

When Did The War Begin?, Edwin Borchard

Faculty Scholarship Series

The Circuit Court of Appeals, Tenth Circuit, recently had occasion to decide a life insurance case, New York Life Insurance Co. v. Bennionl the determination of which involved the interesting question, "When did the war begin for the United States ?" Mrs. Louise Bennion sued the New York Life Insurance Company for the double indemnity of $10,000 due her in the event of the death of her husband by "accident." Her husband, Captain Bennion, was killed when his ship was sunk at Pearl Harbor in the Japanese attack December 7, 1941. The company duly paid the principal sum due under ...


Pennsylvania's Clarifying Amendment For Declaratory Judgments, Edwin Borchard Jan 1944

Pennsylvania's Clarifying Amendment For Declaratory Judgments, Edwin Borchard

Faculty Scholarship Series

On May 26 1943, the Pennsylvania legislature adopted the following amendment to Section 6 of the Uniform Declaratory Judgments Act, originally enacted in 1923:1 Sec. 6: Relief by declaratory judgment or decree may be granted in all civil cases where an actual controversy exists between contending parties, or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied' that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there ...