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Articles 1 - 30 of 148
Full-Text Articles in Jurisprudence
From Coitus To Commerce: Legal And Social Consequences Of Noncoital Reproduction, Joan Hollinger
From Coitus To Commerce: Legal And Social Consequences Of Noncoital Reproduction, Joan Hollinger
Joan Hollinger
No abstract provided.
What Is Positive Law, Philippe Nonet
How Much Fuel To Add To The Fire Of Genius? Some Questions About The Repair/Reconstruction Distinction In Patent Law , Arthur Gajarsa, Evelyn Aswad, Joseph Cianfrani
How Much Fuel To Add To The Fire Of Genius? Some Questions About The Repair/Reconstruction Distinction In Patent Law , Arthur Gajarsa, Evelyn Aswad, Joseph Cianfrani
Evelyn Aswad
No abstract provided.
Nature And Human Equality, John Coons, Patrick Brennan
Nature And Human Equality, John Coons, Patrick Brennan
John Coons
No abstract provided.
Anti-Inquisitorialism, David Sklansky
Anti-Inquisitorialism, David Sklansky
David A Sklansky
A broad and enduring theme of Atherican jurisprudence treats the Continental, inquisitorial system of criminal procedure as epitomizing what our system is not; avoiding inquisitorialism has long been thought a core commitment of our legal heritage. This Article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American law. The Article begins by describing four particularly striking examples of anti-inquisitorialism at work: the Supreme Court's recent reinterpretation of the Confrontation Clause; the Court's invalidation of mandatory sentencing schemes that …
Convocatoria A Junta General: Resolución Nº 018-1999-Orlc/Tr, Abelardo D. Chalán
Convocatoria A Junta General: Resolución Nº 018-1999-Orlc/Tr, Abelardo D. Chalán
Abelardo D. Chalán
No abstract provided.
The Antinomy Of Coherence And Determinacy, William A. Edmundson
The Antinomy Of Coherence And Determinacy, William A. Edmundson
William A. Edmundson
Coherence and determinacy are both apparent desiderata for bodies of law and legal systems. Unfortunately, in legal systems of any complexity, increasing the degree of one invariably brings about a lessening of the other. For theories of law - such as Ronald Dworkin's - that emphasize the importance of coherence in judicial reasoning, while requiring as a condition of legitimacy that legal rights pre-exist judicial decisions, this must be an unwelcome fact.
The Easy Case Against Tax Simplification, Samuel A. Donaldson
The Easy Case Against Tax Simplification, Samuel A. Donaldson
Samuel A. Donaldson
There is growing political momentum to simplify the Internal Revenue Code. While the federal tax laws should be no more complex than necessary, this Article demonstrates that tax complexity is not as bad as political rhetoric leads us to believe. The Article makes four arguments in support of this thesis. First, the forces comprising tax complexity are either inevitable or net beneficial, so calls for simplification are ultimately pointless. Second, the alleged harms of tax complexity are either unproven or overstated, so the need for simplification is questionable. Third, significant proposals for simplification are flawed because they either overcorrect for …
A Linguistic Analysis Of The Meanings Of "Search" In The Fourth Amendment: A Search For Common Sense, Clark D. Cunningham
A Linguistic Analysis Of The Meanings Of "Search" In The Fourth Amendment: A Search For Common Sense, Clark D. Cunningham
Clark D. Cunningham
This article offers a new technique for analyzing and evaluating competing interpretations of a legal text and applies that technique to one of the most debated questions of modern constitutional interpretation: the meaning of "searches" in the first clause of the fourth amendment. This Technique is called the "common sense" approach because it begins with a semantic analysis of the text in terms of the sense that the key words have in everyday speech. Such analysis reveals a complex of interlocked concepts that underlies the ability of speakers to recognize meaningful uses of these words. The common sense approach then …
Taking It To The Streets: Putting Discourse Analysis To The Service Of A Public Defender's Office, Clark D. Cunningham, Bonnie S. Mcelhinny
Taking It To The Streets: Putting Discourse Analysis To The Service Of A Public Defender's Office, Clark D. Cunningham, Bonnie S. Mcelhinny
Clark D. Cunningham
No abstract provided.
Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore
Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore
Clark D. Cunningham
No abstract provided.
Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey
Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey
Russell D. Covey
The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more …
Rules, Standards, Sentencing, And The Nature Of Law, Russell D. Covey
Rules, Standards, Sentencing, And The Nature Of Law, Russell D. Covey
Russell D. Covey
Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the …
Euclid Lives: The Survival Of Progressive Jurisprudence, Charles M. Haara, Michael Allan Wolf
Euclid Lives: The Survival Of Progressive Jurisprudence, Charles M. Haara, Michael Allan Wolf
Michael A Wolf
The Supreme Court's expanded use of regulatory takings is making a highly controversial and confusing concept more difficult to apply and defend. The Court and commentators are invited to explore a different approach-- Progressive jurisprudence, as represented by the Court's enduring opinion in Village of Euclid v. Ambler Realty Co . This Commentary examines the reinvigoration of the Takings Clause and, in historical and ideological terms, discusses the Progressiveness of Euclid and of the regulatory scheme the Euclid Court approved. Professors Haar and Wolf identify and explore five inquiries concerning the character of regulations affecting the use, ownership, and value …
Dividing Crime, Multiplying Punishments, John F. Stinneford
Dividing Crime, Multiplying Punishments, John F. Stinneford
John F. Stinneford
When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will. This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a …
Course Materials On The Law Of Socialist Countries, Julian Juergensmeyer
Course Materials On The Law Of Socialist Countries, Julian Juergensmeyer
Julian C. Juergensmeyer
No abstract provided.
Embodying The Population: Five Decades Of Immigrant/Integration Policy In Sweden, Leila Brännström
Embodying The Population: Five Decades Of Immigrant/Integration Policy In Sweden, Leila Brännström
Leila Brännström
The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi
The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi
Yuvraj Joshi
In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times—to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect for a woman’s freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas, which similarly respected the freedom of choice of homosexual persons. Yet, starting in United States v. Windsor and continuing in Obergefell, the narrative began to change. Dignity veered …
Dealing With Dirty Deeds: Matching Nemo Dat Preferences With Property Law Pragmatism, Donald J. Kochan
Dealing With Dirty Deeds: Matching Nemo Dat Preferences With Property Law Pragmatism, Donald J. Kochan
Donald J. Kochan
European Court Of Justice Rules In Favour Of Greater Transparency In Accessing Efsa Data, Luis González Vaqué
European Court Of Justice Rules In Favour Of Greater Transparency In Accessing Efsa Data, Luis González Vaqué
Luis González Vaqué
This commentary looks at an interesting judgment by the European Court of Justice (ECJ) on 16 July. The judgment relates to plant protection products, but as it seeks to achieve levels of transparency capable of overcoming the lack of trust towards the European Food Safety Authority (EFSA) - often accused of being biased for using experts with vested interests because of their industry associations - it may also be relevant to the food sector, given that the EFSA deals with many authorization procedures, opinions, etc. related to food products.
Resumen de la conferencia pronunciada el 10.11.2015 en San Cugat del …
El Tjue Confirma Y Precisa Su Jurisprudencia Sobre La Eficacia Informativa De La Lista De Ingredientes: La Sentencia “Teekanne” De 4 De Junio De 2015, Luis González Vaqué
El Tjue Confirma Y Precisa Su Jurisprudencia Sobre La Eficacia Informativa De La Lista De Ingredientes: La Sentencia “Teekanne” De 4 De Junio De 2015, Luis González Vaqué
Luis González Vaqué
The ECJ Chamber) ruled that articles 2(1)(a)(i) and 3(1)(2) of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, as amended by Regulation (EC) No 596/2009 of the European Parliament and of the Council of 18 June 2009, must be interpreted as precluding the labelling of a foodstuff and methods used for the labelling from giving the impression, by means of the appearance, description or pictorial representation of a particular ingredient, that that ingredient is present, …
"La Buena Fe Registral" ... ¿A Favor De La Propiedad No Inscrita?, Julio Eduardo Pozo Sánchez
"La Buena Fe Registral" ... ¿A Favor De La Propiedad No Inscrita?, Julio Eduardo Pozo Sánchez
Julio Eduardo Pozo Sánchez
El autor comenta la contradicción entre dos (2) ejecutorias de la Corte Suprema, expedidas por la misma Sala Civil Permanente casi inmediatamente. Además, critica que se utilice un mismo criterio ("la buena fe registral") para favorecer una u otra posición en el conflicto: propiedad no inscrita vs. embargo inscrito.
Access To Justice For A New Century: The Way Forward, Julia H. Bass, W. A. Bogart, Frederick H. Zemans
Access To Justice For A New Century: The Way Forward, Julia H. Bass, W. A. Bogart, Frederick H. Zemans
Frederick H. Zemans
This book is a timely addition to the literature on access to justice. The book's essays address all aspects of the topic, including differing views on the meaning of access to justice; ways to improve access to legal services; litigation and its role in achieving social justice; and the roles of lawyers, citizens, and legal insitutions.
Access to Justice for a New Century is based on papers given at an international symposium presented by the Law Society of Upper Canada, sponsored by the Law Foundation of Ontario.
The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud
The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud
François Tanguay-Renaud
Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.
Not A System But An Order: Explaining The Legality Of The European Union, Michael Giudice, Keith Culver, Wil Waluchow, François Tanguay-Renaud
Not A System But An Order: Explaining The Legality Of The European Union, Michael Giudice, Keith Culver, Wil Waluchow, François Tanguay-Renaud
François Tanguay-Renaud
Keith Culver, Professor, UniverSud, and Micheal Guidice, Associate Professor of Philosophy, York University, explore the foundations of the legal system of the European Union.
Respondent: Wil Waluchow, McMaster University.
The Amazing Three-Headed Limited Partner: Reflections On Old Loopholes And New Jurisprudence, Lisa Philipps
The Amazing Three-Headed Limited Partner: Reflections On Old Loopholes And New Jurisprudence, Lisa Philipps
Lisa Philipps
No abstract provided.
The Last Emperor?, Allan C. Hutchinson
In The Park: A Jurisprudential Primer, Allan C. Hutchinson
In The Park: A Jurisprudential Primer, Allan C. Hutchinson
Allan C. Hutchinson
No abstract provided.
Governance And Anarchy In The S.2(B) Jurisprudence: A Comment On Vancouver Sun And Harper V. Canada, Jamie Cameron
Governance And Anarchy In The S.2(B) Jurisprudence: A Comment On Vancouver Sun And Harper V. Canada, Jamie Cameron
Jamie Cameron
The article identifies and explains a double standard in the Supreme Court of Canada jurisprudence. The contrast is between the open court jurisprudence, which is a model of good constitutional governance – or principled decision making – and the Court’s s.2(b) methodology, which is “anarchistic” or capricious and undisciplined, in the sense of this article. Two landmark cases decided in 2004 illustrate the double standard: the first is Re Vancouver Sun, [2004] 2 S.C.R. 332, which dealt with the open court principle under Parliament’s anti-terrorism provision for investigative hearings, it represents a high water mark for open court and s.2(b) …
Are Jurisprudential Debates Conceptual?: Some Lessons From Democratic Theory, Dan Priel
Are Jurisprudential Debates Conceptual?: Some Lessons From Democratic Theory, Dan Priel
Dan Priel
The dominant view among legal philosophers is that jurisprudential debates about the nature of law are conceptual. In this article I challenge this view. I do so by comparing these debates to debates about the justification of democracy and showing that the arguments found in both are often very similar. I demonstrate that in both domains, there are arguments on one side that explain an institution (either law or democracy) in terms of its ability to help people lead a better life, and there are arguments on the other side that highlight the value of these institutions in promoting political …