Jurisprudence Commons^™

How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger

Linda L. Berger

We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing “a sea-change,” family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income. This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, …

Legal Storytelling: The Theory And The Practice - Reflective Writing Across The Curriculum, Nancy Levit

Nancy Levit

This article concentrates on the theory of narrative or storytelling and addresses the reasons it is vital to encourage in law schools in non-clinical or primarily doctrinal courses. Section I traces the advent of storytelling in legal theory and practice: while lawyers have long recognized that part of their job is to tell their clients' stories, the legal academy was, for many years, resistant to narrative methodologies. Section II examines the current applications of Writing Across the Curriculum in law schools. Most exploratory writing tasks in law school come in clinical courses, although a few adventurous professors are adding reflective …

Theorizing And Litigating The Rights Of Sexual Minorities, Nancy Levit

Nancy Levit

One of the best measures of a society is how it treats its vulnerable groups. A central idea in Professor Martha Nussbaum's writings is that all humans "are of equal dignity and worth, no matter where they are situated in society." The strategic challenge in lesbian, gay, bisexual and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. This article focuses on the roles of a positive emotion - love - and a procedural method of proof - science - in the shaping of laws defining the rights …

Obama O Los Contrastes De La Última Gran Estrategia Liberal. Apuntes Sobre Derecho Y Política Internacional, Ignacio De La Rasilla Del Moral

Ignacio de la Rasilla del Moral, Ph.D.

Exceptionally not grounded on the rhetorical penetration of the great theoretical schemes of international relations’ and foreign policy areas of academic knowledge, but relying, instead, on the juxtaposition of the new Obama Administration’s main electoral promises on foreign policy with a series of empirical data on the current state of the world, the aim of these remarks - written in the eve of the Presidential Election of November 2008 - is that of providisng the non-specialist with a down-to-Earth introductory background to the future of US’ foreign policy during Obama's presidency.

Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz

Edsel F Tupaz

This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite …

Child Welfare And Future Persons, Carter Dillard

Carter Dillard

While ethicists have delved deep into the rights and wrongs of procreating, lawyers have had little to say about the matter, stymied by practical concerns, the tendency of the law to ignore prospective children and their interests, and the misperception that a fundamental rights boundary absolutely forbids state intervention. But recently a small door has opened in this wall between law and ethics: as courts faced with having to repeatedly remove abused and neglected children from parents adjudged unfit have issued temporary no-procreation orders. As precedent builds and the possibility of ex ante regulation of procreation and parenthood grows, a …

Robert George’S The Clash Of Orthodoxies: Law, Religion, And Morality In, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.

Justice Without Power Is Inefficient ; Power Without Justice Is Tyranny, Rajesh Deoli

Rajesh Deoli

Power always pretends to be a dangerous thing only when it is exercised; juridically it is a matter of one’s liberty. Liberty begins where duty ends and it is the residue left untouched by Judges & Legislators on a matter. So there are mainly two types of liberties: 1.Which is recognized by law, for e.g. 'Parliamentary privileges’ in debates & ‘judicial privileges’, both connote the absence of a duty not to utter defamatory statements. Secondly: 2.which is not recognized by the law. So the limit over the power is needed i.e. Rule of law restraining such powers. Everyone should exercise …

Medellin And Originalism, D. A. Jeremy Telman

D. A. Jeremy Telman

In Medellín v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who had not been given timely notice of his right of consular notification and consultation in violation of the United States’ obligations under the Vienna Convention on Consular Relations. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellín’s case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. …

What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope Pether

Penelope J Pether

Australian journalist Paul Sheehan's representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in Girls Like You, like his representation of the rape survivors in that text, has much to tell us about the law's production of rape law's speaking and signifying subjects, "real rape" victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including Girls Like You, recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in rape prosecutions, …

The Death Of The American Trial, Robert Burns

Robert P. Burns

This book analyzes and criticizes the loss of one of the great achievements of our public culture, the American trial.

Lagprövningsdebatten 1955-1966. I Skärningsfältet Mellan Juridik Och Politik., Uta Bindreiter

Uta Bindreiter

No abstract provided.

Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay

Richard Kay

In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the "original public meaning" of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of …

The Difference Between Obedience Assumed And Obedience Accepted, Christian Dahlman

Christian Dahlman

The analysis of legal statements that are made from an “internal point of view” must distinguish statements where legal obedience is accepted from statements where legal obedience is only assumed. Statements that are based on accepted obedience supply reasons for action, but statements where obedience is merely assumed can never provide reasons for action. It is argued in this paper that John Searle neglects this distinction. Searle claims that a statement from the internal point of view provides the speaker with reasons for actions that are “self-sufficient” in the sense that they are independent of the speaker's beliefs and desires. …

Paper Till Nordisk Konferens Om Kön Och Rätt, Tromsø 2009, Linnéa Wegerstad

Linnéa Wegerstad

Sexualbrottens sexualitet(er) - om den straffrättsliga konstruktionen av sexualitet

Under de senaste trettio åren har sexualbrottslagstiftningen varit föremål för omfattande kritik, särskilt utifrån feministiska argument. Dessa argument, bestående i att sexuellt våld betraktas som ett uttryck för bristande jämställdhet mellan könen, har tagits upp i flera statliga utredningar. I första hand har utformningen av våldtäktsparagrafen diskuterats och ifrågasatts. Dock har förekomsten av en särskild brottskategori benämnd sexualbrott inte utmanats nämnvärt. Genom att ta avstamp i den enkla frågan ”Vad är ett sexualbrott?” syftar mitt avhandlingsprojekt till att utforska den straffrättsliga konstruktionen av sexualitet.

Fokus för projektet är den straffrättsliga gränsdragningen …

Contesting Justice: Women, Islam, Law, And Society, Ahmed Souaiaia

Ahmed E SOUAIAIA

No abstract provided.

Editor’S Introduction, Symposium On Paul Rabinow’S “Prosperity, Amelioration, Flourishing: From A Logic Of Practical Judgment To Reconstruction: An Account Of His Work With Synberc", Penelope Pether

Penelope J Pether

This is the Editor's Introduction to a special written symposium on Paul Rabinow’s “Prosperity, Amelioration, Flourishing: From a Logic of Practical Judgment to Reconstruction” an account of the “anthropologist of reason’[s]” professional involvement with SynBERC, a critical institution in the field of synthetic biology, which latter, as Rabinow explains, “aims at nothing less than the (eventual) regulation of living organisms in a precise and standardized fashion according to instrumental norms.” Contributors to the symposium are Rabinow himself, Richard Mullender, Ruthann Robson, Ruth Miller, Jose Gabilondo, Pamela Bridgewater, Michael Moreland, David Caudill, and Gary Edmond and David Mercer. The essays collected …

On Realism's Own 'Hangover' Of Natural Law Philosophy: Llewellyn Avec Dooyeweerd, David Caudill

David S Caudill

No abstract provided.

L’Unité De La Justification À L’Épreuve De La Justification Juridique [Justificatory Unification And Legal Justification], Mathilde Cohen

Mathilde Cohen

Law As Palimpsest: Conceptualizing Contingency In Judicial Opinions (Forthcoming 2009), Bret Asbury

Bret Asbury

Metaphors create conceptualizations, and for decades legal academics have employed metaphors to shape understandings of legal problems. But no metaphor in current use successfully conceptualizes the contingency of judicial opinions and the complexity of the relationship between opinions and precedent. This Article seeks to fill this void by introducing a new metaphor, the palimpsest, into the realm of legal analysis. A palimpsest is a writing surface that can be cleared away for reuse, like a personal blackboard. What distinguishes a palimpsest from other writing surfaces is that its removed contents do not disappear, but remain, obscured yet recoverable: A writing …

Le Concept Hartien D’Obligation Juridique, Stephen Utz

Stephen Gerard Utz

Virtual Rule Of Law, Michael Risch

Michael Risch

This article, which follows a presentation at the West Virginia Law Review Digital Entrepreneurship Symposium, is the first to consider whether virtual worlds provide a rule of law that sets expectations for virtual business. Many consider the rule of law a catalyst for economic development, and there is reason to believe that it will be equally important in virtual economies, despite differences from the real world. As more people turn to virtual worlds to earn a livelihood, the rule of law will become prominent in encouraging investments in virtual business. The article finds – unsurprisingly – that virtual worlds now …

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Corinna Lain

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …

Loneliness And The Law: Solitude Action And Power In Law And Literature, Marc L. Roark

Marc L. Roark

How do our thoughts and attitudes impact the law? Is there a correlation between the way the law is decided and the way we as lawyers and scholars approach law? These questions are the ultimate indicators of the direction of law. Traditionally, we assume that law develops artificially--that is, without direct correlation to any particular individual's contribution thereto--with few exceptions. We attribute broader forces to the development of legal movements; social movements and historical moments that ascend to the law. [FN1] In such scenarios, the individual is lost to the broader panoply of thought, rendered as little more than a …

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall

Brian M McCall

This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.

Constituting Vanuatu: Societal, Legal And Local Perspectives,, Benedict Sheehy, Jackson Maogoto

Benedict Sheehy

Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as that system is often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that not only creates a broad challenge for …

The Rights Of Women And Role Of Superior Judiciary In Pakistan With Special Reference To Family Law Case From 2004-2008, Muhammad Munir Dr.

Dr. Muhammad Munir

Granting and protecting the rights of women in the domain of family law remains one of the most important areas of legislation in Pakistan. The role of judiciary is vital to ensure that the rights of women are protected because decisions of the superior judiciary are binding on the lower courts under the doctrine of precedent. This work focuses on cases decided by the superior judiciary in Pakistan over the period of five years to know the various remedies sought by helpless women. This article finds that legislation in the area of family law protects women to a greater degree …

Desejo, Necessidade, Vontade: O Estado Como Garante Das Potencialidades Humans, Haradja L. Torrens

Haradja L Torrens

The author broaches the subject of the social state democratic promise in the scope of each citizen’s equalities and peculiarities. She outlines the conflict between constitutional rights and circumstantial limitations based on the analysis of economic, juridical and philosophical theories inspired in Ralws, Perelman, Härbele, Verdú and Dworkin. She points out its similiarity to the Brazilian Doctrine followed by Paulo Bonavides, stressing, at last, the post-positivist response to the legal principles for addressing political court trials through case law analysis.

The 21st Century Space Arms Race: Curtailing Heavenly Thunderbolts Through The Shield Of The ‘Peaceful Purposes’ Mantra, Jackson N. Maogoto, Steven Freeland

Jackson Nyamuya Maogoto

Because of its uniquely commanding height, outer space has gained even greater military and strategic value in the post-Cold War international strategic environment. This provides for the possibility – some say probability - that outer space will become a platform for warfare. This development can only have negative consequences in the long term. As the United States pursues a policy that incorporates the placing of weapons in outer space, the other major space faring powers have not been idly sitting by. Recent advances in space technologies have put the development of space weapons within the realm of possibility for several …

Politeia And Arete. Archeology Of Senses And Hellenic Legacy, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

The idea of the Republic and its value is again the order of the day, not only due to Neorepublican theorists, but also because of many current debates, such as multiculturalism, the laicity of states and societies, transparency and corruption, etc. Along with Republican constitutional rules, principles and values, some proclaimed during the French Revolution (such as Liberté, Égalité, Fraternité), the debate shows the importance of an even deeper question: the importance of virtues, and the Greek legacy of Republican virtues. In this paper, among other points, we remember Pericles’ funereal speech in Thucydides’ History of Peloponnesian War, and some …