Jurisprudence Commons^™

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 choice …

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

Bar Associations

No abstract provided.

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

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 …

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 …

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 …

Holmes On Peerless: Raffles V. Wichelhaus And The Objective Theory Of Contract, Robert Birmingham

Faculty Articles and Papers

No abstract provided.

Book Review, Pierre Schlag

Publications

No abstract provided.

The History Of Statutory Interpretation: A Study In Form And Substance, William S. Blatt

Articles

No abstract provided.

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

Law Faculty Research Publications

No abstract provided.

Evolutionary Models In Jurisprudence, Herbert J. Hovenkamp

All Faculty Scholarship

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 …

"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).

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.

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

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.

Paul, The Lawyer, On Law, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

Rules And Standards, Pierre Schlag

Publications

No abstract provided.

Framers Intent: The Illegitimate Uses Of History, Pierre Schlag

Publications

No abstract provided.

Interjurisdictional Preclusion And Federal Common Law: Toward A General Approach, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Manners, Metaprinciples, Metapolitics And Kennedy's Form And Substance, William W. Bratton

All Faculty Scholarship

No abstract provided.

The Most Sacred Text: The Supreme Court's Use Of The Federalist Papers, James G. Wilson

Law Faculty Articles and Essays

In interpreting the Constitution the Supreme Court has increasingly referred to The Federalist papers, a series of essays written by Alexander Hamilton, James Madison, and John Jay during the struggle to ratify the Constitution. This article describes in narrative form how the Court has incorporated The Federalist into its opinions, and summarizes how constitutional historians and political scientists have evaluated The Federalist and the Constitution. This format highlights the limited nature of the Court's historical inquiry by demonstrating that the Court and constitutional scholars have been traveling in parallel universes. Either the Court has ignored or been unaware of the …

Causing The Conditions Of One's Own Defense: A Study In The Limits Of Theory In Criminal Law Doctrine, Paul H. Robinson

All Faculty Scholarship

One widely-stated goal of criminal law theory is to create the set of rules that best implements our collective sense of justice. To reach this goal, the theorist continuously adjusts his theory so that it generates rules that better reflect our fundamental notions of justice. These rules, moreover, must function as workable doctrine, which in the context of criminal law means precise statutory provisions. It is this process of theoretical refinement and translation that is the topic of this article. Can good theory generate results that approximate our collective sense of justice? Can the theoretical refinements be translated into workable …

Why We Need Legal Philosophy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Do we need legal philosophy? Legal philosophy or jurisprudence, like many other areas of philosophy, is of intrinsic interest to many people. But this does not tell us whether or why we need it. The answer suggested by Lon Fuller is that legal philosophy has - or should have - implications for lawyers, judges, legislators and law professors. And yet in 1952 Fuller concluded that: "Judged by this standard I don't think we can claim that the last quarter of a century has been a fruitful one for legal philosophy in this country - certainly not in terms of immediate …

From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski

Faculty Scholarship

On February 19, 1985, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, overruled its 1976 decision in National League of Cities v. Usery. Although the continued vitality of National League of Cities had been in question in recent years, the Court's abrupt repudiation of the very principle announced in that case is an event of considerable significance, beyond showing, one more time, that the rule of stare decisis has a limited application in the Court's modern constitutional adjudication. Garcia's importance lies, above all, in revealing the absence of anything approaching a well elaborated theory of federalism that …

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 could …

Explaining Habeas Corpus, Larry Yackle

Faculty Scholarship

The conventional rationale underlying postconviction habeas corpus in the Federal forum is that the individual's interest in freedom from unlawful detention warrants a second look at Federal claims already rejected by the State courts. The subject-matter jurisdiction of the habeas courts is explicitly limited to petitions from applicants who allege they are in 'custody' in violation of Federal Law. The courts, however, circumvent the 'custody' requirement if it threatens to obstruct effective Federal postconviction review to protect persons from recalcitrant State authorities. The proposed alternative explanation of habeas corpus is that it makes available a Federal forum in which to …

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."""