Open Access. Powered by Scholars. Published by Universities.®

Jurisprudence Commons

Open Access. Powered by Scholars. Published by Universities.®

Washington University Jurisprudence Review

United States

Publication Year

Articles 1 - 8 of 8

Full-Text Articles in Jurisprudence

The Truth About Property Rules: Some Obstacles To The Economic Analysis Of Remedies, Emily Sherwin Jan 2010

The Truth About Property Rules: Some Obstacles To The Economic Analysis Of Remedies, Emily Sherwin

Washington University Jurisprudence Review

Property Rules, as famously described by Calabresi and Melamed, are remedial rules that place a prohibitively high penalty on violations of rights. This Article examines two aspects of property rules. In each case, the form of the rule is critically important. The first question addressed is the capacity of property rules to affect behavior that takes place outside the context of litigation. Most economic analysis assumes that when a right is protected by a property rule, the property rule will guide private decisionmaking at the time of a contemplated violation, and possibly before that time. Yet, to have this effect ...


Morality, Law And The Duty To Act: Creating A Common Law Duty To Act Modeled After The Responsibility To Protect Doctrine, Mccall C. Carter Jan 2010

Morality, Law And The Duty To Act: Creating A Common Law Duty To Act Modeled After The Responsibility To Protect Doctrine, Mccall C. Carter

Washington University Jurisprudence Review

Part I will examine the history and philosophy of the American common law “no duty to act rule.” Part II will cover the history and the development of the Responsibility to Protect doctrine in international law, arguments for and against the doctrine, and its underlying philosophy. This Article will argue that even though the underlying philosophies of American and international law differ, there is no reason why the American system cannot join the rest of the world in creating a legal duty to act.


Before The Jurisprudential Turn: Corbin And The Mid-Century Opposition To Erie, Steven Walt Jan 2010

Before The Jurisprudential Turn: Corbin And The Mid-Century Opposition To Erie, Steven Walt

Washington University Jurisprudence Review

This Article is structured as follows. Part I documents the jurisprudential turn in understanding Erie by analyzing some of Holmes’s famous dissents invoked in the opinion. It argues that Holmes’s epigrams about the nature of law in these dissents are deceptive: they either wrongly attribute to the majority jurisprudential views it need not hold or take a jurisprudential position unnecessary to the dissent’s view. Either way, Holmes’s legal positivism is irrelevant to his own dissents. Parts II-V together make the historical case for viewing Corbin as a legal positivist who objected to Erie’s result constitutional ...


Totem, Taboo And The Concept Of Law: Myth In Hart And Freud, Jeanne L. Schroeder Jan 2009

Totem, Taboo And The Concept Of Law: Myth In Hart And Freud, Jeanne L. Schroeder

Washington University Jurisprudence Review

This Article proceeds as follows. First, I recount Hart’s myth of Rex as he presents it in The Concept of Law. I then visit Freud’s Totem and Taboo, both in its original form and as reinterpreted by Lacan and Žižek, and show the striking similarities. I then consider both why Hart feels that his tale helps to elucidate the concept of law, and why Lacan believes that we are drawn to tell such stories about the birth of law. Finally, I will review Hart’s other myth—the myth of a primitive society governed by unruly recognition of ...


Legal Realism Explains Nothing, Anthony D'Amato Jan 2009

Legal Realism Explains Nothing, Anthony D'Amato

Washington University Jurisprudence Review

This Article presents the argument that American legal realism as derived from Oliver Wendell Holmes’s prediction theory of law was misinterpreted, and that a deeper examination of law as prediction might help to reduce the pathology of judicial lawmaking that has been the unfortunate consequence of legal realism.


Hart Avec Kant: On The Inseparability Of Law And Morality, David Gray Carlson Jan 2009

Hart Avec Kant: On The Inseparability Of Law And Morality, David Gray Carlson

Washington University Jurisprudence Review

Part I discusses what morality is, according to Kant, for whom the notion is strictly procedural. Kant seeks to isolate the form of morality from its substantive content. Part II explains the role of the internal point of view in Hart's system. It shows that, properly construed, the internal point of view plays precisely the role that autonomy plays in Kantian moral theory. Part III shows that there can be no rule of recognition. Rather, legal recognition is the official's spontaneous act. Any reduction of the internal point of view to social rules renders it into a positive ...


Theories Of Legislation And Statutory Interpretation: Natural Law And The Intention Of The Legislature, Patrick J. Kelley Jan 2009

Theories Of Legislation And Statutory Interpretation: Natural Law And The Intention Of The Legislature, Patrick J. Kelley

Washington University Jurisprudence Review

In the first section of this Article, I survey a number of modern theories of legislation and test them by considering their adequacy as an explanation of a federal statute, the Family and Medical Leave Act of 1993 (“FMLA), which provides an instructive example of a modern social welfare statute. In explaining and critiquing some of the modern theories, I do not try to reinvent the wheel, but follow the explanations and critiques in the teaching materials of Eskridge and Frickey, and the excellent book by Daniel Farber and Philip Frickey, Law and Public Choice: A Critical Introduction. The contribution ...


Does The Social Contract Justify Felony Disenfranchisement?, Eli L. Levine Jan 2009

Does The Social Contract Justify Felony Disenfranchisement?, Eli L. Levine

Washington University Jurisprudence Review

The right to vote is the foundation of a democratic society and essential to active citizenship in the United States. The 2000 Presidential Election, decided by a mere 537 votes in Florida, epitomized the principle that every vote matters. However, nearly every state has adopted laws restricting the right to vote. By virtue of having broken the law, felons lose their right to vote and the ability to participate in selecting a politician to represent them, and are muted from most forcefully voicing their opinion of the policies and laws to which they will be subjected. Philosophers have long debated ...