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Jurisprudence Commons

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Selected Works

2015

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Institution
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Articles 31 - 60 of 204

Full-Text Articles in Jurisprudence

Access To Justice For A New Century: The Way Forward, Julia H. Bass, W. A. Bogart, Frederick H. Zemans Oct 2015

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 Oct 2015

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 Oct 2015

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 Oct 2015

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 Oct 2015

The Last Emperor?, Allan C. Hutchinson

Allan C. Hutchinson

No abstract provided.


In The Park: A Jurisprudential Primer, Allan C. Hutchinson Oct 2015

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 Oct 2015

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 ...


Are Jurisprudential Debates Conceptual?: Some Lessons From Democratic Theory, Dan Priel Oct 2015

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 ...


Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun Oct 2015

Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun

Dan Priel

It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes. But surface appearances can deceive. Unlike some other areas of philosophy, the subject matter of jurisprudence is ...


The Place Of Legitimacy In Legal Theory, Dan Priel Oct 2015

The Place Of Legitimacy In Legal Theory, Dan Priel

Dan Priel

In this essay I argue that in order to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. I show that this distinction helps us, first, make sense of fundamental debates in jurisprudence between legal positivists and Dworkin: these should not be understood, as they often are, as debates on the conditions of validity, but rather as debates on the right way of understanding the relationship between these four concepts. I then use this distinction between the four concepts to criticize legal positivism. The positivist account begins with an attempt to explain ...


Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel Oct 2015

Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel

Dan Priel

Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a ...


Para Corte Suprema Propietario No Puede Desalojar A La Conviviente De Su Hijo, Julio Eduardo Pozo Sánchez Oct 2015

Para Corte Suprema Propietario No Puede Desalojar A La Conviviente De Su Hijo, Julio Eduardo Pozo Sánchez

Julio Eduardo Pozo Sánchez

No abstract provided.


The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson Sep 2015

The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson

J.S. Nelson

The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result of this absence of accountability, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.
This vacuum at the center of American conspiracy law has now warped the doctrines around it. Especially in ...


The Jurisprudence Of Nature: The Importance Of Defining What Is "Natural", Jill M. Fraley Sep 2015

The Jurisprudence Of Nature: The Importance Of Defining What Is "Natural", Jill M. Fraley

Jill M. Fraley

Informal regulations defining nature, natural, and organic have proliferated across diverse fields of law from patents to agriculture, from taxation to gemstones. The unwritten jurisprudence of defining nature is primarily a story of the struggle to isolate mankind’s manipulations and interventions, creating a man-nature dichotomy that frustrates more than it explicates. This failure to define nature continues with the Supreme Court’s recent Myriad decision, which struggles to define the law of nature exception to patentability, highlighting the challenge of measuring levels of human intervention and manipulation. Our dichotomous definitions do not generate neat, binary answers, but rather complicated ...


Theater, Law & Democracy As Living Speech: Reflections On The Work Of James Boyd White, Frank Garcia Sep 2015

Theater, Law & Democracy As Living Speech: Reflections On The Work Of James Boyd White, Frank Garcia

Frank J. Garcia

Presentation at a colloquium sponsored by the Boston College Clough Center for the Study of Constitutional Democracy.


Institutional Rules, Strategic Behavior And The Legacy Of Chief Justice William Rehnquist: Setting The Record Straight On Dickerson V. United States, Daniel Katz Sep 2015

Institutional Rules, Strategic Behavior And The Legacy Of Chief Justice William Rehnquist: Setting The Record Straight On Dickerson V. United States, Daniel Katz

Daniel M Katz

Why did Justice Rehnquist behave the way he did in Dickerson v. United States? As written, many prevailing accounts accept Justice Rehnquist's opinion in Dickerson v. United States at face value and disavow the potential of a strategic explanation. The difficulty with the non-strategic accounts is their failure to outline explicitly the evidence supporting the uniqueness of their theory. Specifically, these explanations largely ignore the alternative set of preferences which could have produced the Chief's decision. This is troubling because prior scholarship demonstrates that a chief justice possesses a unique set of institutional powers which provides significant incentive ...


Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley Sep 2015

Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley

Christian J Bromley

The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on ...


Precedent And Legal Authority: A Critical History, Charles W. Collier Aug 2015

Precedent And Legal Authority: A Critical History, Charles W. Collier

Charles W. Collier

In this Article, Professor Charles Collier traces out a general theory of precedential authority through historical sources. The Article focuses on three particularly influential views of precedent: Wambaugh's concept of dictum, Oliphant's concept of stare decisis, and Goodhart's concept of ratio decidendi. These views illustrate an underlying tension between two distinct doctrines of precedential authority. The first doctrine, derived from humanistic thought, restricts-legal authority as narrowly as possible to the express terms of an original text. The second doctrine draws on the broad, generalizing tendencies of the empirical sciences and their corresponding conceptions of scientific authority. The ...


The Constitutional Rhetoric Of White Innocence Aug 2015

The Constitutional Rhetoric Of White Innocence

Cecil J. Hunt II

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of ...


Obergefell V. Hodges: How The Supreme Court Should Have Ruled, Adam Lamparello Aug 2015

Obergefell V. Hodges: How The Supreme Court Should Have Ruled, Adam Lamparello

Adam Lamparello

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based ...


The Constitution And Informational Privacy, Or How So-Called Conservatives Countenance Governmental Intrustion Into A Person's Private Affairs, 18 J. Marshall L. Rev. 871 (1985), Michael P. Seng Aug 2015

The Constitution And Informational Privacy, Or How So-Called Conservatives Countenance Governmental Intrustion Into A Person's Private Affairs, 18 J. Marshall L. Rev. 871 (1985), Michael P. Seng

Michael P. Seng

No abstract provided.


"Should I Stay Or Should I Go Now": Analyzing The Federal Prosecution Of Aliens Who Attempt To Stop Living Unlawfully In The United States, Sergio Garcia Aug 2015

"Should I Stay Or Should I Go Now": Analyzing The Federal Prosecution Of Aliens Who Attempt To Stop Living Unlawfully In The United States, Sergio Garcia

Sergio Garcia

Abstract: Title 8 U.S.C. § 1326(a) makes it a crime for a previously deported alien to be “found in” the United States without the Attorney General’s consent. There is, however, a conflict among the circuits over whether an illegal alien is “found in” the United States for purposes of § 1326 when he voluntarily travels to a port of entry and is detained there by immigration authorities while he is seeking to leave the country. The circuit courts bordering Mexico and Canada disagree on this issue as a matter of law, as well as a matter of Congressional ...


Dangerous Tongues: Storytelling In Congressional Testimony, Clare Keefe Coleman Aug 2015

Dangerous Tongues: Storytelling In Congressional Testimony, Clare Keefe Coleman

Clare Keefe Coleman

The important and dangerous use of storytelling in making legislation has been largely ignored by legal academics. Although notable scholars, including Justice Scalia and Cass Sunstein, have written extensively about the use of legislative history in statutory interpretation, and much has been written about the use of storytelling in advocacy, the important role that stories play in making legislation has been overlooked by the legal academy, outside of a few articles relating to criminal statutes. The Congressional Record on a recent farm bill is full of stories told by special interests that draw on metaphors, archetypes, and myths. Snow White ...


Conflicted Counselors: Retaliation Protections For Attorney-Whistleblowers In An Inconsistent Regulatory Regime, Jennifer M. Pacella Aug 2015

Conflicted Counselors: Retaliation Protections For Attorney-Whistleblowers In An Inconsistent Regulatory Regime, Jennifer M. Pacella

Jennifer M. Pacella, Esq.

Attorneys, especially in-house counsel, are subject to retaliation by employers in much the same way as traditional whistleblowers, often experiencing retaliation and loss of livelihood for reporting instances of wrongdoing about their clients. Although attorney-whistleblowing undoubtedly invokes ethical concerns, attorneys who “appear and practice” before the Securities and Exchange Commission (“SEC”) are required by federal law to act as internal whistleblowers under the Sarbanes-Oxley Act (“SOX”) and report evidence of material violations of the law within the organizations that they represent. An attorney’s failure to comply with these obligations will result in SEC-imposed civil penalties and disciplinary action. Recent ...


Freedom, Legality, And The Rule Of Law, John A. Bruegger Aug 2015

Freedom, Legality, And The Rule Of Law, John A. Bruegger

John A Bruegger

There are numerous interactions between the rule of law and the concept of freedom, looking at Fuller’s eight principles of legality, the positive and negative theories of liberty, coercive and empowering laws, and the formal and substantive rules of law. Adherence to the rules of formal legality promote freedom by creating stability and predictability in the law, on which the people can then rely to plan their behaviors around the law – this is freedom under the law. Coercive laws can actually promote negative liberty up to pulling people out of a Hobbesian state of nature, and then thereafter can ...


Patent Claim Construction: A Modern Synthesis And Structured Framework, Peter S. Menell, Matthew D. Powers, Steven C. Carlson Aug 2015

Patent Claim Construction: A Modern Synthesis And Structured Framework, Peter S. Menell, Matthew D. Powers, Steven C. Carlson

Peter Menell

No abstract provided.


Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv Aug 2015

Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv

Charles E. A. Lincoln IV

This Article uses the dialectical ideas of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) in application to the progression of United States voting laws since the founding. This analysis can be used to interpret past progression of voting rights in the US as well as a provoking way to predict the future trends in US voting rights. First, Hegel’s dialectical method is established as a major premise. Second, the general accepted history of United States voting laws from the 1770s to the current day is laid out as a minor premise. Third, the major premise of Hegel’s dialectical ...


El Título En La Posesión Precaria A La Luz Del Iv Pleno Casatorio, Julio Eduardo Pozo Sánchez Aug 2015

El Título En La Posesión Precaria A La Luz Del Iv Pleno Casatorio, Julio Eduardo Pozo Sánchez

Julio Eduardo Pozo Sánchez

Una correcta definición de poseedor precario pasa por establecer una noción, lo más exacta posible, del ‘título’ a que se refiere el artículo 911 del Código Civil. Determinar qué es el título en la posesión precaria permite establecer meridianamente cuándo nos encontramos frente a un supuesto de precariedad.


Algunas Razones Por Las Que Debe Prevalecer La Posición Del Acreedor Embargante. A Propósito De La Decisión Pendiente En El Vii Pleno Casatorio Civil, Jimmy J. Ronquillo Pascual Aug 2015

Algunas Razones Por Las Que Debe Prevalecer La Posición Del Acreedor Embargante. A Propósito De La Decisión Pendiente En El Vii Pleno Casatorio Civil, Jimmy J. Ronquillo Pascual

Jimmy J. Ronquillo Pascual

No abstract provided.


Facing The Unborn, Richard Stith Jul 2015

Facing The Unborn, Richard Stith

Richard Stith

 Modern science tells us of the identity of each individual human being from conception to adulthood, but our imagination does not fully cooperate. It is difficult to look at a photograph of a zygote and see a fellow human being. There are, however, two strong ways to better align our knowledge and our intuition. One is to look backward in the developmental process. It is easy to grasp that our fellow human beings all used to be zygotes. A second method is now becoming available. DNA can be used to reveal the future face and even the eyes of each ...