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Articles by Maurer Faculty

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Full-Text Articles in Jurisprudence

Federalism And Gender Equality, Susan H. Williams Jan 2018

Federalism And Gender Equality, Susan H. Williams

Articles by Maurer Faculty

Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and ...


Pringle And The Nature Of Legal Reasoning, Paul Craig Jan 2014

Pringle And The Nature Of Legal Reasoning, Paul Craig

Articles by Maurer Faculty

The Pringle judgment generated significant academic comment, concerning all aspects of the case. It raises, as will be seen, broader issues as to the nature of legal reasoning and the role played therein by text and background purpose or teleology.

Gunnar Beck is very critical of the CJEU, castigating it for reasoning that is said to be absurd, and accusing it of crossing the line between legal reasoning and political judgment. He is also critical of much academic analysis of the case, contending that this was too uncritical of the Court's judgment, and contending also that the interpretation of ...


Proportionality, Rationality And Review, Paul Craig Jan 2010

Proportionality, Rationality And Review, Paul Craig

Articles by Maurer Faculty

There is a debate in certain common law jurisdictions as to whether proportionality should be accepted as a general criterion for judicial review in administrative law. This article responds to Mike Taggart’s bifurcation thesis and his argument that proportionality should be reserved for rights-based cases, with low intensity rationality review being used for other types of case. I argue to the contrary that proportionality should be a general principle of judicial review that can be used both in cases concerned with rights and in non-rights based cases, albeit with varying intensity of review. The article begins by addressing the ...


Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle Jan 2009

Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle

Articles by Maurer Faculty

Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.

In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to ...


Global Health Jurisprudence: A Time Of Reckoning, David P. Fidler Jan 2008

Global Health Jurisprudence: A Time Of Reckoning, David P. Fidler

Articles by Maurer Faculty

No abstract provided.


Roscoe Pound And The Future Of The Good Government Movement, Charles G. Geyh Jan 2007

Roscoe Pound And The Future Of The Good Government Movement, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.


Book Review. Vom Volkerrecht Zum Weltrecht By Angelika Emmerich-Fritsche, Jost Delbruck Jan 2007

Book Review. Vom Volkerrecht Zum Weltrecht By Angelika Emmerich-Fritsche, Jost Delbruck

Articles by Maurer Faculty

No abstract provided.


Fact, Value And Action In Nonconceptual Jurisprudence, Gene R. Shreve Jan 2002

Fact, Value And Action In Nonconceptual Jurisprudence, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.


Can Evolutionary Science Contribute To Discussions Of Law?, Jeffrey E. Stake Jan 2001

Can Evolutionary Science Contribute To Discussions Of Law?, Jeffrey E. Stake

Articles by Maurer Faculty

Evolutionary Theory can be helpful in understanding the law and determining what it should be. There are two ways in which the evolutionary perspective differs from an economic perspective on law. Not only does the evolutionary approach shift our attention from the world today to the environment of evolutionary adaptation, it shifts our focus from rational individuals to rational genes and from rational behaviors to rational design of mental architecture. Finally, the law of law's leverage makes predictions about the relative elasticities of demand for all sorts of behaviors, including those that did and did not exist in the ...


Pushing Evolutionary Analysis Of Law Or Evolving Law: Design Without A Designer, Jeffrey E. Stake Jan 2001

Pushing Evolutionary Analysis Of Law Or Evolving Law: Design Without A Designer, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.


Conflicts Empiricism, Gene R. Shreve Jan 2001

Conflicts Empiricism, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.


Rhetoric, Pragmatism And The Interdisciplinary Turn In Legal Criticism -- A Study Of Altruistic Judicial Argument, Gene R. Shreve Jan 1998

Rhetoric, Pragmatism And The Interdisciplinary Turn In Legal Criticism -- A Study Of Altruistic Judicial Argument, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.


Notes From The Eye Of The Storm, Gene R. Shreve Jan 1997

Notes From The Eye Of The Storm, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.


Feminist Jurisprudence And Free Speech Theory, Susan H. Williams Jan 1994

Feminist Jurisprudence And Free Speech Theory, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.


The Federal Rules Of Evidence After Sixteen Years -- The Effect Of "Plain Meaning" Jurisprudence, The Need For An Advisory Committee On The Rules Of Evidence, And Suggestions For Selective Revision Of The Rules, Aviva A. Orenstein, Edward R. Becker Jan 1992

The Federal Rules Of Evidence After Sixteen Years -- The Effect Of "Plain Meaning" Jurisprudence, The Need For An Advisory Committee On The Rules Of Evidence, And Suggestions For Selective Revision Of The Rules, Aviva A. Orenstein, Edward R. Becker

Articles by Maurer Faculty

No abstract provided.


Is There A Natural Law Right To Privacy?, Ralph F. Gaebler Jan 1992

Is There A Natural Law Right To Privacy?, Ralph F. Gaebler

Articles by Maurer Faculty

No abstract provided.


Comment On Fikentscher's Paper -- Modes Of Thought In Law And Justice -- A Preliminary Report On A Study In Legal Anthropology, Jerome Hall Jan 1988

Comment On Fikentscher's Paper -- Modes Of Thought In Law And Justice -- A Preliminary Report On A Study In Legal Anthropology, Jerome Hall

Articles by Maurer Faculty

No abstract provided.


Legality And Empathy, Lynne N. Henderson Jan 1987

Legality And Empathy, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.


Book Review. Virtue, Commerce, And History: Essays On Political Thought And History, Chiefly In The Eighteenth Century By J.G.A. Pocock, Stephen A. Conrad Jan 1987

Book Review. Virtue, Commerce, And History: Essays On Political Thought And History, Chiefly In The Eighteenth Century By J.G.A. Pocock, Stephen A. Conrad

Articles by Maurer Faculty

No abstract provided.


The Use Of Evolution Theory In Law, M. B. W. Sinclair Jan 1987

The Use Of Evolution Theory In Law, M. B. W. Sinclair

Articles by Maurer Faculty

No abstract provided.


Intergenerational Condemnation, Donald H. Gjerdingen Jan 1986

Intergenerational Condemnation, Donald H. Gjerdingen

Articles by Maurer Faculty

Justice between generations is a growing concern in land use, particularly in the areas of environmental and historic preservation. In this Article, Professor Gerdingen addresses the effect of this development on contemporary takings clause doctrine. He argues that conventional takings doctrine is comprised of four different "causes of action" that merely focus on intragenerational conflicts over the use of resources. As a result, part of the reason why the law generates so many hard cases in the area of environmental and historic preservation is that the conventional takings doctrine is unable to accommodate the justice between generations component of preservation ...


The Future Of Legal Scholarship And The Search For A Modern Theory Of Law, Donald H. Gjerdingen Jan 1986

The Future Of Legal Scholarship And The Search For A Modern Theory Of Law, Donald H. Gjerdingen

Articles by Maurer Faculty

In this Article, Professor Gjerdingen argues that the current crisis in legal scholarship can be traced to a change in the dominant concept of American law. He argues that virtually all of the significant schools of American legal thought during the last century, from Langdellian orthodoxy to realism to the legal process school, were dominated by a concept of law that separated law and politics. This concept of law, which he terms "conventionalism," presumed that law was an autonomous, apolitical discipline dominated by the study of adjudication and classical common law categories. In contrast, the new legal scholarship of the ...


Paul, The Lawyer, On Law, Jerome Hall Jan 1985

Paul, The Lawyer, On Law, Jerome Hall

Articles by Maurer Faculty

No abstract provided.


Statutory Interpretation In America: Dipping Into Legislative History, Part Ii, Reed Dickerson Jan 1984

Statutory Interpretation In America: Dipping Into Legislative History, Part Ii, Reed Dickerson

Articles by Maurer Faculty

No abstract provided.


Statutory Interpretation In America: Dipping Into Legislative History, Part I, Reed Dickerson Jan 1984

Statutory Interpretation In America: Dipping Into Legislative History, Part I, Reed Dickerson

Articles by Maurer Faculty

No abstract provided.


Statutory Interpretation: Dipping Into Legislative History, Reed Dickerson Jan 1983

Statutory Interpretation: Dipping Into Legislative History, Reed Dickerson

Articles by Maurer Faculty

No abstract provided.


Questioning Intervention Of Right -- Toward A New Methodology Of Decisionmaking, Gene R. Shreve Jan 1980

Questioning Intervention Of Right -- Toward A New Methodology Of Decisionmaking, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.


Assumption Of Risk In A Comparative Negligence System-- Doctrinal, Practical, And Policy Issues, Daniel O. Conkle Jan 1978

Assumption Of Risk In A Comparative Negligence System-- Doctrinal, Practical, And Policy Issues, Daniel O. Conkle

Articles by Maurer Faculty

The adoption of a new principle of law invariably impinges upon related legal concepts, raising issue that were not considered when the law was changed. The adoption of comparative negligence, a drastic departure from the long-held principle of contributory negligence, has forced courts to consider how the related concept of assumption of risk is affected by the change. Because there are different types of assumption of risk, and various doctrinal, practical, and policy issues, a proper determination of the role for assumption of risk in a comparative negligence system depends upon a thorough examination of many relevant considerations. Unfortunately, two ...


Integrative Jurisprudence, Jerome Hall Jan 1976

Integrative Jurisprudence, Jerome Hall

Articles by Maurer Faculty

Editorial Note: The following paper was originally presented in Mexico City on December 10, 1975, in a symposium honoring Professor Emeritus Luis Recasens Siches of the National University of Mexico.


The Neutrality Of Adherence To Precedent, Robert L. Birmingham Jan 1971

The Neutrality Of Adherence To Precedent, Robert L. Birmingham

Articles by Maurer Faculty

No abstract provided.