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Full-Text Articles in Jurisprudence

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 ...


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 ...


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 ...


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 ...


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 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 ...


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 ...


Shall The Executive Agreement Replace The Treaty, Edwin Borchard Jan 1944

Shall The Executive Agreement Replace The Treaty, Edwin Borchard

Faculty Scholarship Series

In recent years many political leaders and publicists have sought to prove that the treaty-making process, requiring the "undemocratic." valid and desirable preferably without congressional approval or, by a majority of Congress. 1300 executive agreements have been concluded history, as contrasted 900 i8 that up to 1928 only 15 for good reasons; treaties have been amended by have benefited the nation.

BASES OF THE PROPOSALS FOR CHANGE

The recent proposals for a change in the Constitution, either with or without benefit of a constitutional amendment, have their origin in several grievances and are said to derive moral support from several ...


Law And Learning Theory: A Study In Legal Control, Charles C. Callahan, Underhill Moore Jan 1943

Law And Learning Theory: A Study In Legal Control, Charles C. Callahan, Underhill Moore

Faculty Scholarship Series

THIS study lies within the province of jurisprudence. It also lies within
the field of behavioristic psychology. It places the province within the
field and, in doing so, fragments the province into disconnected pieces.
The problems of jurisprudence become psychological problems to be attacked
by the use of the propositions of a psychological theory of behavior
and by quantitative and experimental methods.


State Indemnity For Errors Of Criminal Justice, Edwin Borchard Jan 1941

State Indemnity For Errors Of Criminal Justice, Edwin Borchard

Faculty Scholarship Series

All too frequently the public is shocked by the news that Federal or State authorities have convicted and imprisoned a person subsequently proved to have been innocent of any crime. These accidents in the administration of the criminal law happen either through an unfortunate concurrence of circumstances or perjured testimony or are the result of mistaken identity, the conviction having been obtained by zealous prosecuting attorneys on circumstantial evidence. In an earnest effort to compensate in some measure the victims of these miscarriages of justice, Congress in May 1938 enacted a law "to grant relief to persons erroneously convicted in ...


Relation Between International Law And Municipal Law, Edwin Borchard Jan 1940

Relation Between International Law And Municipal Law, Edwin Borchard

Faculty Scholarship Series

Recent events on this continent make it seem appropriate once more to discuss the much – debated question of the relation between international law and municipal law. For one school, the dualists, municipal law prevails in case of conflict; for the other school, the monists international law prevails. There are two special features about the debate which warrant mention: first, that while the disputants do not widely differ in the ultimate solution of practical problems, they do differ considerably in their major premises and in the resulting theories; and second, that the attempt of various countries on occasion to escape the ...


Declaratory Judgments And Insurance Litigation, Edwin Borchard Jan 1939

Declaratory Judgments And Insurance Litigation, Edwin Borchard

Faculty Scholarship Series

The passage of the Federal Declaratory Judgments Act in 1934 has stimulated throughout the country the employment of the action for declaratory judgment In few branches of commercial activity has it been used more successfully than in insurance litigation. It would be hard to say whether this new device for the construction of written instruments and the clarification and adjudication of all types of legal relations has been more effectively used for the determination of disputed status, the construction of contracts, conflicting claims to property, or administrative law disputes between the Government and the citizen.


Taney's Influence On Constitutional Law, Edwin Borchard Jan 1936

Taney's Influence On Constitutional Law, Edwin Borchard

Faculty Scholarship Series

The hundredth anniversary of the elevation of Roger Brooke Taney to the post of Chief Justice of the Supreme Court affords a fitting occasion to review the significance of his judicial services to the nation and to American constitutional law. A re-examination of his life work in the perspective of history indicates how unwise it often is to form rigid judgments on men and events in the excitement of contemporary emotion, for the harsh opinions which Taney evoked by his decisions on the slavery question have been tempered in the detached light reason. The historical cloud under which his name ...


An Indiana Declaratory Judgment, Edwin Borchard Jan 1936

An Indiana Declaratory Judgment, Edwin Borchard

Faculty Scholarship Series

It is an aphorism that the greatest enemies of law reform, and particularly of procedural reform, are the lawyers. A striking exemplification of the axiom may be found in Brindley v. Meara, decided by the Supreme Court of Indiana, November 18, 1935, 198 N. E. 301. That was the second of two appearances before the Supreme Court of the members of the advisory board of North Township, Lake County. They had already successfully brought an action for a declaratory judgment, construing a statute which determined that they and not the defendant, township trustee, had the power to select the persons ...


Justiciability, Edwin Borchard Jan 1936

Justiciability, Edwin Borchard

Faculty Scholarship Series

It might be supposed that justiciability, the very foundation of the judicial function, would be a matter on which courts could hardly differ. Yet there seems to be the greatest confusion among the courts as to when an issue is and is not susceptible of judicial decision. This is largely due to a devotion to phrases and symbols which make historical investigation and theoretical analysis seem an unnecessary encroachment on the judicial prerogative. The very system of stare decisis invites courts to relieve themselves of the necessity of thinking through again ostensible propositions which seem to have once received the ...


Recent Developments In Declaratory Relief, Edwin Borchard Jan 1936

Recent Developments In Declaratory Relief, Edwin Borchard

Faculty Scholarship Series

The way of the reformer, like that of the transgressor, is hard. It will be recalled that the Pennsylvania Supreme Court, after an excellent start in 1925 in the application of the procedure for a declaratory judgment in Karihey's Petition had fallen into regrettable error in a number of later cases by assuming that a declaratory judgment could· not be sought or granted when any other "established" remedy was available. This was in direct conflict with the express words of the Declaratory Judgments Act to the effect that declaratory judgments may be rendered "whether or not further relief is ...


Federal Declaratory Judgments Act, Edwin Borchard Jan 1934

Federal Declaratory Judgments Act, Edwin Borchard

Faculty Scholarship Series

It is especially appropriate to publish in the Virginia Law Review the first extensive commentary on the Federal Declaratory Judgments Act. The credit for its enactment falls largely to ex-Governor, now Representative, Andrew J. Montague, of Virginia, who piloted the Act through the House of Representatives on four separate occasions. His persistence over a period of many years was finally rewarded when on June 14, 1934, President Roosevelt signed the Act (Pub. 343) giving the Federal Courts power to render such judgments.


Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard Jan 1934

Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard

Faculty Scholarship Series

Precedent and time are the creators and preservers of customary law. So strong is the force of habit in human behavior that man in doubt or distress instinctively turns to past experience to see how his forbears dealt with similar problems. The law, which is the cement holding together the social structure, is, in its evolution as a conservative force, of necessity driven to search for precedents and to profit by them in building certainty and thereby security. Without landmarks there is no system; and for the very reason that international law is deficient in its lack of a legislature ...