Jurisprudence Commons^™

Responsibility And The Boundaries Of The Self, Meir Dan-Cohen

Meir Dan-Cohen

Argues that people must look beyond free will as the sole ground for responsibility. Importance of moral and legal responsibility; Concepts of responsibility and the self that depart from the standard approaches; Relationship between the two concepts; Use of the theory of self and responsibility to analyze some puzzles concerning the attribution and denial of legal responsibility; Forms of responsibility that appear deviant from the voluntarist perspective.

Bureaucratic Organizations And The Theory Of Adjudication, Meir Dan-Cohen

Meir Dan-Cohen

No abstract provided.

¿Sentencia Declarativa O Constitutiva En Los Procesos De Prescripción Adquisitiva De Dominio?, Julio Eduardo Pozo Sánchez, Estefany Juárez Taipe

Julio Eduardo Pozo Sánchez

El presente trabajo busca dar respuesta a una inquietud que a la fecha no obtiene un pronunciamiento uniforme en la judicatura nacional: ¿se requiere sentencia judicial para convertirse en propietario por prescripción adquisitiva? Su respuesta –a través de la muy cambiante y reciente jurisprudencia de la Corte Suprema de Justicia– permite a los autores, hacer una propuesta de modificación del artículo 952 del Código Civil.

Mimesis, Imagination And Law, Marcelo C. Galuppo

Marcelo C Galuppo Phd

This paper assumes that a trial consists of a narrative that encompasses other narratives held in the Lawsuit. As such, the first question that arises is whether it is possible to transpose events into discourse, i.e., if it is possible to represent mimetically the reality in the judicial discourse. In order to this narrative process be legitimate, it needs to present narrative coherence so that it makes possible that other narratives (plaintiff`s, defendant`s, and witnesses` ones) be understood as dialectically overcame in sentence’s narrative. Imagination plays a key role in narratives, and especially in judicial narratives, linking the events, disconnected …

The Supreme Court 1997 Term -- Foreword: The Limits Of Socratic Deliberation, Michael C. Dorf

Michael C. Dorf

No abstract provided.

A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Dicta And Article Iii, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Legal Indeterminacy And Institutional Design, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Foreward: The Most Confusing Branch, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf

Michael C. Dorf

In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …

Prediction And The Rule Of Law, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Michael C. Dorf

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

Fighting With Angry Women: A Response To Lasson, John A. Siliciano

John A. Siliciano

No abstract provided.

Human-Centered Environmental Values Versus Nature-Centric Environmental Values: Is This The Question?, Zygmunt J.B. Plater

Zygmunt J.B. Plater

The challenging background context for much of the discussion and cogitation in the panels and pages of this conference is the unfortunate fact that environmental protection law in virtually all its manifestations is currently faring rather poorly in the public policy arenas of national government. From the public health hazards of residual substances in consumer goods and human breast milk to the mighty troubles of human-caused climate disruption, many of the most significant structures of societal governance are locked in political and financial dysfunctions and impasses. Given the conference’s goal to “explore more deeply the relationship between environmental protection and …

Equal Educational Opportunity By The Numbers: The Warren Court's Empirical Legacy, Michael Heise

Michael Heise

No abstract provided.

Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise

Michael Heise

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take? Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this …

"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker

Eric M. Tucker

The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a …

0n Executing Treatment-Resistant Schizophrenics: Identity And The Construction Of “Synthetic” Competency, Theodore Y. Blumoff

Theodore Y. Blumoff

Since 2003, death penalty jurisdictions have been permitted to use psychotropic drugs to “restore” the competency of schizophrenics so they can execute them. Exactly why it is permissible to execute a “synthetically” or “artificially” competent individual is unclear in light of Ford v. Wainwright, a 1986 decision in which the United States Supreme Court, following ancient custom and common law rule, held that the cruel and unusual prohibition of the Eighth Amendment prohibited execution of the insane. The lack of clarity follows from the inability of the Court to agree on the reason the tradition persists. Nonetheless, health care providers …

Demystifying Legal Reasoning: Part Ii, Larry Alexander, Emily Sherwin

Emily L Sherwin

"Demystifying Legal Reasoning" defends the proposition that there are no special forms of reasoning peculiar to law. Legal decisionmakers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. Part II (abstracted here) addresses common law reasoning, when prior judicial decisions determine the law. Part III addresses interpretation of texts. We conclude that, in both areas, the popular view that legal decisionmakers practice special forms of reasoning are false. In Chapter 2, we propose that there are two plausible models of common law reasoning, …

The Jurisprudence Of Pleading: Rights, Rules, And Conley V. Gibson, Emily Sherwin

Emily L Sherwin

In 1957, in the case of Conley v. Gibson, the Supreme Court announced a minimal standard for the contents of a complaint under the Federal Rules of Civil Procedure and endorsed what has come to be known as 'notice' pleading. This article, prepared for a symposium on Conley, reviews the debate over pleading requirements that preceded the case. Unlike modern discussions of pleading, which focus on the level of factual specificity required in complaints, the pre-Conley debate was about the legal content of complaints - an question largely forgotten in the years following Conley.

The early twentieth century debate over …

An Essay On Private Remedies, Emily Sherwin

Emily L Sherwin

No abstract provided.

Legal Taxonomy, Emily Sherwin

Emily L Sherwin

This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview …

Legal Change, The Eighty-Third Cleveland-Marshall Fund Visiting Scholar Lecture , Gerald Torres

Gerald Torres

This Essay will proceed in the following steps. First, I want to propose a preliminary definition of legal change. As I hope to make clear, there are technical and non-technical dimensions to the definition. Second, I want to offer a preliminary definition of social change and social movements. Third, I want to build on the analysis of the late Professor Thomas Stoddard in which he sketched out a relationship between what he calls "rule shifting" and "culture shifting."' Finally, I want to describe what Professor Lani Guinier and I have come to call "demosprudence." I appreciate that it is not …

It's All Interpretation, All The Way Down, Or, The Reason We Call It The “Practice” Of Law: With Observations From Two Different Legal Systems, John R. Prince Iii

John R. Prince III

This article explores one aspect of the philosophy of law; not what it means to refer to “the law” but what it means to discuss the “practice of law.” That practice is identified as a discursive practice, one where a text is applied to a particular factual context, and thus an interpretive practice. However, the type of interpretation involved in the practice of law is not one of translating one verbal formulation of a rule into another verbal formulation, but the act of bridging the gap between the rule and what that rule means here, and now, in a particular …

The Fixation Thesis: The Role Of Historical Fact In Original Meaning, Lawrence B. Solum

Lawrence B. Solum

The central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice—paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis—the claim that the linguistic …

Developing Countries And Multilateral Trade Agreements: Law And The Promise Of Development, Chantal Thomas

Chantal Thomas

No abstract provided.

Causes Of Inequality In The International Economic Order: Critical Race Theory And Postcolonial Development, Chantal Thomas

Chantal Thomas

No abstract provided.

Critical Race Theory And Postcolonial Development Theory: Observations On Methodology, Chantal Thomas

Chantal Thomas

No abstract provided.

Value Pluralism In Legal Ethics, W. Bradley Wendel

W. Bradley Wendel

My claim in this Article is that the foundational normative values of lawyering are substantively plural and, in many cases, incommensurable. By plural I mean that the ends served by the practice of lawyering are fundamentally diverse, and are therefore valued in different ways. Lawyers promote multiple worthwhile goals, including not only preserving individual liberty, speaking truth to power, showing mercy, and resisting oppression, but also enhancing order and stability in opposition to the “ill-considered passions” of democracy, aligning individual action with the public good, and shaping disputes for resolution by particular institutions such as courts and agencies. The claim …

Impartiality In Judicial Ethics: A Jurisprudential Analysis, W. Bradley Wendel

W. Bradley Wendel

No abstract provided.