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Jurisprudence Commons

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1985

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Articles 1 - 30 of 42

Full-Text Articles in Jurisprudence

Why Professor Redish Is Wrong About Abstention, Michael Wells Jul 1985

Why Professor Redish Is Wrong About Abstention, Michael Wells

Scholarly Works

Most critics of the Supreme Court's abstention doctrines have attacked the substantive merits of rules that channel constitutional litigation away from federal courts and into state courts instead. In a recent article, Martin Redish raises an interesting objection to abstention from a different perspective. He addresses the institutional legitimacy of the rules and contends that whatever their merits, rules like these should be made only by Congress and not the Supreme Court, for they contravene Congress' intent to grant federal courts jurisdiction over constitutional claims against state actors. Part I of this article describes the context in which the ...


Penumbras And Privacy: A Study Of The Use Of Fictions In Constitutional Decision-Making, James B. Stoneking Jun 1985

Penumbras And Privacy: A Study Of The Use Of Fictions In Constitutional Decision-Making, James B. Stoneking

West Virginia Law Review

No abstract provided.


Trials And The Federal Rules Of Evidence, Roger J. Miner '56 May 1985

Trials And The Federal Rules Of Evidence, Roger J. Miner '56

Bar Associations

No abstract provided.


Two Models Of The Fourth Amendment, Craig M. Bradley May 1985

Two Models Of The Fourth Amendment, Craig M. Bradley

Michigan Law Review

Fourth amendment critics rank in rows, and it has been repeatedly pointed out that individual cases are inconsistent with each other or that whole chunks of doctrine, such as the automobile exception or the plain view exception, are either misconceived, too broad, or too narrow. But these critics all play the Court on its own field, simply arguing as tenth Justices that the doctrines should be tinkered with in different ways than the Court has done. This Article, in contrast, suggests that current fourth amendment law, complete with the constant tinkering which it necessarily entails, should be abandoned altogether. Instead ...


The Reluctant Witness For The Prosecution: Grand Jury Subpoenas To Defense Counsel, Stacy Caplow Apr 1985

The Reluctant Witness For The Prosecution: Grand Jury Subpoenas To Defense Counsel, Stacy Caplow

Faculty Scholarship

No abstract provided.


Law In A Reign Of Terror, Alan Watson Apr 1985

Law In A Reign Of Terror, Alan Watson

Scholarly Works

A few years ago I published a book, The Nature of Law, which was activated primarily by three long held beliefs. First, law is a means, not an end in itself; and legal rules, principles, decisions do not come into being without some purpose. The end envisaged for a legal rule or decision may be immediate -- to give financial compensation to a particular victim of negligence, for instance -- or more remote -- to promote general happiness or bolster the economic dominance of the ruling class, for example -- but that does not concern us here. What, in my opinion, does matter is ...


Static History And Brittle Jurisprudence: Raoul Berger And The Problem Of Constitutional Methodology, Robert J. Cottrol Mar 1985

Static History And Brittle Jurisprudence: Raoul Berger And The Problem Of Constitutional Methodology, Robert J. Cottrol

Boston College Law Review

No abstract provided.


Whither Jurisprudence?, Anthony D'Amato Jan 1985

Whither Jurisprudence?, Anthony D'Amato

Faculty Working Papers

After considering the side road of critical legal studies, I shall try to indicate the major signposts to a more complete jurisprudence. These signposts take the form of questions or anomalies in our present understanding of law. I will conclude that only by following these signposts, by exploring these questions and anomalies, will we begin to uncover the nature of law and justice.


Institutionalized Conflicts Between Law And Policy, Joseph P. Tomain Jan 1985

Institutionalized Conflicts Between Law And Policy, Joseph P. Tomain

Faculty Articles and Other Publications

Law and policy do not mix well. The legal system is a significant force which contributes to the splintering of substantive policies. While this argument is made with specific reference to energy law and policy, it also has a general application to other classes of complex cases.

The "signs" that law and policy do not interact neatly manifest themselves in the form of conflicts of two different categories. In the first category are conflicts between the ends and purposes of law and policy. These are addressed in Section 11 of this article. In the second category are conflicts within the ...


Practical Reasoning And Judicial Justification: Toward An Adequate Theory, Vincent A. Wellman Jan 1985

Practical Reasoning And Judicial Justification: Toward An Adequate Theory, Vincent A. Wellman

Law Faculty Research Publications

No abstract provided.


Everyman's Jurisprudence: In Search Of A Common Sense Theory Of Legal Justification, Brian V. Faller Jan 1985

Everyman's Jurisprudence: In Search Of A Common Sense Theory Of Legal Justification, Brian V. Faller

Washington University Law Review

Judges and lawyers daily confront one of the most vexing problems of modern jurisprudence: they must determine whether a given legal rule or an interpretation of it is legally correct. To make this determination they consider a variety of factors such as the literal meaning of the rule, the intent of the rule's creator, the consequences that one rule or interpretation would have as opposed to another, and the interpretations that courts have given to the rule or to a similar rule. Yet, even with this guidance, they are often hard put to justify their assertion that a given ...


The Mythic Difficulty In Proving A Negative, Kevin W. Saunders Jan 1985

The Mythic Difficulty In Proving A Negative, Kevin W. Saunders

Faculty Publications

No abstract provided.


Complicity, Cause And Blame: A Study In The Interpretation Of Doctrine, Sanford H. Kadish Jan 1985

Complicity, Cause And Blame: A Study In The Interpretation Of Doctrine, Sanford H. Kadish

Faculty Scholarship

Examines a body of doctrine, the doctrine of complicity, that determines when one person is liable for a crime committed by another. Concept of blame; Theory of complicity; Theory of the intention requirement.


Beyond Promissory Estoppel: Contract Law And The Invisible Handshake, Daniel A. Farber, John H. Matheson Jan 1985

Beyond Promissory Estoppel: Contract Law And The Invisible Handshake, Daniel A. Farber, John H. Matheson

Faculty Scholarship

No abstract provided.


The Case Against Brilliance, Daniel A. Farber Jan 1985

The Case Against Brilliance, Daniel A. Farber

Faculty Scholarship

No abstract provided.


Bureaucratic Organizations And The Theory Of Adjudication, Meir Dan-Cohen Jan 1985

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

Faculty Scholarship

No abstract provided.


The Competition Of Technologies In Markets For Ideas: Copyright And Fair Use In Evolutionary Perspective (With Steven Peretz), Richard Adelstein Jan 1985

The Competition Of Technologies In Markets For Ideas: Copyright And Fair Use In Evolutionary Perspective (With Steven Peretz), Richard Adelstein

Division II Faculty Publications

A theory of intellectual goods as distinct from public or private goods, and the rationale for copyright that flows from it.


An Alternative Analysis Of Law Of The Case - Rethinking Loveday V. State Jan 1985

An Alternative Analysis Of Law Of The Case - Rethinking Loveday V. State

Maryland Law Review

No abstract provided.


Uncertainty In Law And Its Negation: Reflections, Gordon A. Christenson Jan 1985

Uncertainty In Law And Its Negation: Reflections, Gordon A. Christenson

Faculty Articles and Other Publications

For this issue of the Review, the editors invited me to reflection. In response, I wish to consider some aspects of a problem that has bothered me over the past quarter-century. This problem arises from radical subjectivism and its effect on the legal order. I believe that something is radically subjective in law when one norm is considered as valid as any other, or when one perception of facts is thought as valid as any other, for the reason that any objective principles for determining validity are either inadequate or considered meaningless tautologies, masking the subjective preference of those with ...


Legal Theory And The Pivotal Role Of The Concept Of Coercion, Dale A. Nance Jan 1985

Legal Theory And The Pivotal Role Of The Concept Of Coercion, Dale A. Nance

Faculty Publications

This paper addresses an important problem in modem legal philosophy: the problem of identifying the proper role of the concept of coercion in a general theory of the nature of law. The present state of philosophical art on this topic is the legacy of difficulties arising from a naive positivism - generally thought to have over-emphasized the role of coercive power. The resulting reaction in modem jurisprudence against the focus upon coercion reflects a failure to come to grips fully with the underlying methodological issues of descriptive legal theory.


The Jurisprudence Of The Burger Court: A Reading Of Michigan V. Long, Jan Ginter Deutsch Jan 1985

The Jurisprudence Of The Burger Court: A Reading Of Michigan V. Long, Jan Ginter Deutsch

Faculty Scholarship Series

Law is currently perceived by many as a set of technicalities used to keep criminals out of jail. Even those lawyers opposed to the Warren Court expansion of constitutional rights see such a view as an oversimplification, a shibboleth - a shibboleth, how­ ever, to which the facts in Michigan v. Long 1 seem tailor-made.

One night, in a rural area, a car was travelling erratically and at excessive speed. It swerved into a ditch. Police officers stopped to investigate. The car's occupant, who was at the rear of the car, and "appeared to be under the influence of something ...


Crisis And Proposed Solution: Half A Century Of Corporate Law, Jan Ginter Deutsch Jan 1985

Crisis And Proposed Solution: Half A Century Of Corporate Law, Jan Ginter Deutsch

Faculty Scholarship Series

"Greenmail" refers to purchases, at a premium over the market price, of shares of a corporation's stock from persons making a takeover bid. Greenmail can be seen as an aspect of the self- regulatory process, the combination of business practices and legal formalities, which defines United States capitalism. The reality of the system characterized by greenmail, however, involves a good deal more than self-regulation.


Book Review, Pierre Schlag Jan 1985

Book Review, Pierre Schlag

Articles

No abstract provided.


Legal Opinions On Incorporation, Good Standing, And Qualification To Do Business, Scott T. Fitzgibbon, Donald W. Glazer Jan 1985

Legal Opinions On Incorporation, Good Standing, And Qualification To Do Business, Scott T. Fitzgibbon, Donald W. Glazer

Boston College Law School Faculty Papers

[Also appears in Washington and Lee University Law Review 43 (Summer 1986): 240-275, and in Opinion Letters of Counsel 1987, 313-334, New York: Practising Law Institute, 1987, and in Business Opinions, 237-275, New York: Practising Law Institute, 1988.]


On "The Critical Legal Studies Movement", John M. Finnis Jan 1985

On "The Critical Legal Studies Movement", John M. Finnis

Journal Articles

"The present study critically examines the account of legal thought developed in Roberto Unger's very long article, ""The Critical Legal Studies Movement"" (1983), and tests it against Unger's own account of certain ""exemplary"" difficulties in the Anglo-American law of Contract. These scrutinies reveal that Unger's account fundamentally misunderstands the ways of legal thought, and disguises its misunderstanding behind equivocations on ""(in)determinate"" and ""(un)justified."""


Evolutionary Models In Jurisprudence, Herbert J. Hovenkamp Jan 1985

Evolutionary Models In Jurisprudence, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Few ideas in intellectual history have been so captivating that they have overflowed the discipline from which they came and spilled over into everything else. The theory of evolution is unquestionably one of these. Evolution was an idea so powerful that it seemed obvious when Charles Darwin offered it. After all, there were prominent evolutionists a century before Darwin. Charles Darwin merely presented a model that made the theory plausible. It was a model, though, that infected everything, and one that appeared to answer every question worth asking, no matter what the subject. The model had the potential to lead ...


On Preferences And Promises: A Response To Harsanyi, Donald H. Regan Jan 1985

On Preferences And Promises: A Response To Harsanyi, Donald H. Regan

Articles

John C. Harsanyi sketches an entire normative and metaethical theory in under twenty pages. Combining breadth and brevity, his essay is useful and interesting. It reveals the interrelations between Harsanyi's positions on various issues as no longer work or series of articles could do. But by virtue of its programmatic nature, the essay creates a dilemma for a commentator, at least for one who finds many things to disagree with. If I responded to Harsanyi in the same sweeping terms in which he argues, we would end up with little more than opposing assertions. At the other extreme, I ...


"Of Law And The River," And Of Nihilism And Academic Freedom, Peter W. Martin Jan 1985

"Of Law And The River," And Of Nihilism And Academic Freedom, Peter W. Martin

Cornell Law Faculty Publications

Correspondence provoked by the publication of Dean Paul D. Carrington's article, "Of Law and the River," 34 J. Legal Educ. 222 (1984).


The Evolving Doctrine Of Implication: The Export Administration Act And Private Rights Of Action, Lauren B. Bonfield Jan 1985

The Evolving Doctrine Of Implication: The Export Administration Act And Private Rights Of Action, Lauren B. Bonfield

Northwestern Journal of International Law & Business

Two recent United States District Court opinions examine the question of when a federal court may invoke the "implication" doctrine which permits them "to create a private right of action from a federal statute that does not expressly provide for [a] private remed[y]. . . ." Both of the cases raise the issue of implication as it applies to the antiboycott provision of the Export Administration Act (EAA). Plaintiffs in both Bulk Oil (Zug) A.G. v. Sun Co., and Abrams v. Baylor College of Medicine, claimed an implied private right to bring an action for damages and in addition, alleged substantive ...


Rules And Standards, Pierre Schlag Jan 1985

Rules And Standards, Pierre Schlag

Articles

No abstract provided.