Jurisprudence Commons^™

Filosofía De La Responsabilidad Extracontractual: Un Llamado Al Debate, Jorge Luis Fabra

Jorge Luis Fabra Zamora

Recientemente se ha comenzado a hablar con fuerza de la “filosofía de la responsabilidad extracontractual” en Latinoamérica. La publicación de varias compilaciones de artículos, la traducción de uno de los textos fundacionales del área, y la publicación del primer libro con una contribución original al debate en español han hecho que este estudio filosófico se consolide un cuerpo académico por mérito propio. Sin embargo, a pesar de estos logros, la idea de una “filosofía de la responsabilidad extracontractual” puede sonar extraña al jurista práctico. Como señala Zipursky, desde la perspectiva de los jueces o abogados, la responsabilidad extracontractual –que se …

Is The Law Hopeful?, Annelise Riles

Annelise Riles

This essay asks what legal studies can contribute to the now vigorous debates in economics, sociology, psychology, philosophy, literary studies and anthropology about the nature and sources of hope in personal and social life. What does the law contribute to hope? Is there anything hopeful about law? Rather than focus on the ends of law (social justice, economic efficiency, etc.) this essay focuses instead on the means (or techniques of the law). Through a critical engagement with the work of Hans Vaihinger, Morris Cohen and Pierre Schlag on legal fictions and legal technicalities, the essay argues that what is “hopeful” …

Misunderstanding Ability, Misallocating Responsibility, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

In the Anglo-American legal tradition, people are responsible for damage caused by their failure to conform their conduct with that of the "reasonable person." With few exceptions, so long as one's conduct conforms to that of the reasonable person, then even if the conduct harms others, it does not create liability. Courts understand that the "reasonable person" is an idealized legal fiction but believe the construct to be a useful way to identify culpable conduct. For the reasonable-person test to be useful, courts must identify the characteristics of this reasonable person. As to cognitive and perceptual abilities, courts endow this …

The One Or The Many, Jens David Ohlin

Jens David Ohlin

The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions. Part II then analyzes, with cautious support, Isaacs’ two-level solution, which entails both individual and collective moral …

Judicial (Self-)Portraits: Judicial Discourse In The French Legal System, Mitchel De S.-O.-L'E. Lasser

Mitchel Lasser

The French legal system, according to its official pronouncements, functions on a rigid conception of the interpretive and creative role of the civil, private law judge. This conception may be thought of as an "official portrait": It is an image or representation of the judge and of the nature of the judicial role. The official portrait, which represents an interpretive ideology that posits a perfectly grammatical mode of reading the legal code, has been the source of much confusion, especially to common lawyers. This portrait's predominance in the French legal system, and its effect on French judicial practice, has never …

Comparative Readings Of Roscoe Pound's Jurisprudence, Mitchel De S.-O.-L'E. Lasser

Mitchel Lasser

No abstract provided.

"Lit. Theory" Put To The Test: A Comparative Literary Analysis Of American Judicial Tests And French Judicial Discourse, Mitchel De S.-O.-L'E. Lasser

Mitchel Lasser

The formalism/policy dichotomy has structured American jurisprudential analyses of judicial decisionmaking for most of the twentieth century. In this Article, Professor Lasser analyzes and compares American multi-part judicial tests and French civil judicial discourse to demonstrate that the dichotomy reflects and informs the ways in which judicial decisions are written. Drawing on the works of Roman Jakobson, Roland Barthes, and Paul de Man, he constructs a literary methodology to analyze American and French judicial discourse. Professor Lasser contends that the formalism/policy dichotomy is part of a larger process by which the American and French judicial systems justify how they produce …

Comparative Law And Comparative Literature: A Project In Progress, Mitchel De S.-O.-L'E. Lasser

Mitchel Lasser

No abstract provided.

Justice In Time, Robert C. Hockett

Robert C. Hockett

Challenges raised by the subject of intergenerational justice seem often to be thought almost uniquely intractable. In particular, apparent conflicts between the core values of impartiality and efficiency raised by a large and still growing number of intertemporal impossibility results derived by Koopmans, Diamond, Basu & Mitra, and others have been taken to foreclose fruitful policy assessment done with a view to the distant future. This Essay aims to dispel the sense of bewilderment, pessimism and attendant paralysis that afflicts intertemporal justice assessment. It works toward that end by demonstrating that the most vexing puzzles raised by questions of intergenerational …

Why Paretians Can’T Prescribe: Preferences, Principles, And Imperatives In Law And Policy, Robert C. Hockett

Robert C. Hockett

Recent years have witnessed two linked revivals in the legal academy. The first is renewed interest in articulating a normative “master principle” by which legal rules might be evaluated. The second is renewed interest in the prospect that a variant of Benthamite “utility” might serve as the requisite touchstone. One influential such variant now in circulation is what the Article calls “Paretian welfarism.” This Article rejects Paretian welfarism and advocates an alternative it calls “fair welfare.” It does so because Paretian welfarism is inconsistent with ethical, social, and legal prescription, while fair welfare is what we have been groping for …

Noncomparabilities & Non Standard Logics, Robert C. Hockett

Robert C. Hockett

Many normative theories set forth in the welfare economics, distributive justice and cognate literatures posit noncomparabilities or incommensurabilities between magnitudes of various kinds. In some cases these gaps are predicated on metaphysical claims, in others upon epistemic claims, and in still others upon political-moral claims. I show that in all such cases they are best given formal expression in nonstandard logics that reject bivalence, excluded middle, or both. I do so by reference to an illustrative case study: a contradiction known to beset John Rawls's selection and characterization of primary goods as the proper distribuendum in any distributively just society. …

Promise Against Peril: Of Power, Purpose, And Principle In International Law, Robert Hockett

Robert C. Hockett

I take two recent monographs on international law – Mary Ellen O’Connell’s "The Power and Purpose of International Law," and Eric Posner’s "The Perils of Global Legalism," as case studies in a more general inquiry into the role of the "rule of law" ideal in domestic and international law. I argue that international and domestic law alike give varyingly explicit and effective expression to the rule of law ideal, and that the task before us is accordingly steadily to improve their effectiveness in so doing, not to pretend that there is no role for this ideal to play in interpreting …

The Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Robert C. Hockett

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.

Cafa Judicata: A Tale Of Waste And Politics, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

The Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005. CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions …

The Dance Of Death Or (Almost) "No One Here Gets Out Alive": The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume

John H. Blume

No abstract provided.

The Legacy Of Anthony M. Kennedy, Adam Lamparello

Adam Lamparello

The defining moments in Justice Kennedy’s tenure on the Court came in Planned Parenthood, Lawrence, and United States v. Windsor, where the Court did to the Constitution—in the name of liberty—what it also did—in the name of democracy—to Florida’s citizens in Bush v. Gore. In all three cases, Justice Kennedy’s reliance on a broad conception of liberty, rather than equal protection principles, shifted the balance too heavily in favor of judicial, rather democratic, creation of unenumerated fundamental rights.

Justice Kennedy will rightly be celebrated for safeguarding reproductive freedom and championing sexual autonomy for same-sex couples, but underneath the black …

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

Mark Fenster

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Eric J. Segall

No abstract provided.

Una Vez Más Sobre La Tercería De Propiedad Contra Embargo. A Propósito De Un Reciente Pronunciamiento De La Corte Suprema, Jimmy J. Ronquillo Pascual

Jimmy J. Ronquillo Pascual

En una reciente sentencia casatoria, la Sala Civil Permanente de la Corte Suprema ha hecho prevalecer el embargo inscrito frente a la propiedad no registrada. En opinión del autor, esta sentencia, a diferencia de anteriores pronunciamientos, invoca argumentos distintos a los tradicionales, por lo que marca un punto de referencia imprescindible para cualquier análisis de la tendencia jurisprudencial sobre la materia. Por ello, en este trabajo, se efectúan diversas precisiones sobre esta decisión judicial, lo cual es especialmente relevante en la medida que se estima que en el próximo Pleno Casatorio Civil nuestra Corte Suprema unifi cará criterios sobre la …

The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman

Steven J. Heyman

Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …

Yes, Thankfully, Euclid Lives, Charles M. Haara, Michael Allan Wolf

Michael A Wolf

Professors Haar and Wolf reiterate their endorsement of Progressive jurisprudence, as embodied in the Supreme Court's opinion in Village of Euclid v. Ambler Realty Co., despite Professor Eric Claeys's effort to expose the political theory underlying Progressive legal thought. They highlight problems with Professor Claeys's portrayal of the actual practice of zoning and with his use of history, problems that seriously undercut Professor Claeys's findings regarding the political beliefs of early zoning and planning advocates, the evolution of zoning law in the courts, and the role natural law played in American legal history.

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to …

Treating Religion As Speech: Justice Stevens's Religion Clause Jurisprudence, Eduardo M. Peñalver

Eduardo M. Peñalver

Justice Stevens has sometimes been caricatured as the U.S. Supreme Court Justice who hates religion. Whether considering questions under the Establishment Clause or the Free Exercise Clause, questions about the funding or regulation of religious groups, or the permissibility of religious speech in public places, in case after case he has voted against religion. Like most caricatures, this view of Justice Stevens is based on a kernel of truth. He does appear to be more likely to vote against religious groups than any other Justice. But an exploration of the cases in which Justice Stevens has voted in favor of …

Anti-Constitutional Moments, F.E. Guerra-Pujol

F.E. Guerra-Pujol

My previous paper “Gödel’s Loophole,” 41 Cap. U. L. Rev. 637 (2013) -- which has been downloaded over 3000 times on SSRN and has been featured on such websites as io9 and Hacker News -- has generated extensive commentary from academics and laypersons alike. Because of the interest in the subject matter of my previous paper on “Gödel’s Loophole,” I have written a new paper titled “Anti-Constitutional Moments” in which I combine legal history and constitutional theory in order to explore in detail an intriguing idea I first put forth in my previous work. In summary, previously I retold the …

El Sexto Pleno Casatorio Civil Y Un Acierto A Medias, Jimmy J. Ronquillo Pascual

Jimmy J. Ronquillo Pascual

No abstract provided.

Theories And Practices Of Islamic Finance And Exchange Laws: Poverty Of Interest, Ahmed E. Souaiaia

Ahmed E SOUAIAIA

The Place Of Jurisprudence In The Law Academy:An Appraisal, Kevin Ndoho Macharia

Kevin Ndoho Macharia

The thesis statement given is that; in essence jurisprudence is a serious legal discourse. It should be accepted universally as a co-unit in the training of lawyers. Its importance is based on the fact that it forms the basis of studying all other units of law. I set out in this paper to explore the place of jurisprudence in the law school curriculum. I also give reasons supporting the thesis statement: why jurisprudence has become generally accepted as the basis of studying all other units of law. I also tackle some criticisms of it being so accepted; and in conclusion …

Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Benjamin Tennille, Lee Applebaum, Anne Tucker

Anne Tucker

No abstract provided.

Why Rick Santorum Is A Menace And A Libertarian's Worst Nightmare, Eric J. Segall

Eric J. Segall

No abstract provided.

"Sufficient" Capacity: The Contrasting Capacity Requirements For Different Documents, Mary F. Radford, Lawrence A. Frolik

Mary F. Radford

In Anglo-American law, the concept of mental "capacity" is used to measure the degree to which an individual has the "mental ability to understand the nature and effects of one's acts" as determined by a medical or cognitive assessment of an individual's mental ability. Based on an individual's mental capacity, the law decides whether the individual had sufficient capacity to engage in the action in question. The legal concept of mental capacity, therefore, is the basis for "when a state legitimately may take action to limit an individual's rights to make decisions about his or her own person or property." …