Jurisprudence Commons^™

The Egyptian Legal System Over Twenty Years: Overview And Assesment, Ziad Bahaa-Eldin

Faculty Book Chapters

The second of two issues, this volume covers aspects of Egyptian society. Contributors include: Donald Cole, Soraya Altorki, Asef Bayat, Eric Denis, Enid Hill, Ziad Bahaeddin, Malak Rouchdy, Linda Herrera, Jim Napoli, Hussein Amin, Mahmoud al-Lozy, Cynthia Nelson, and Shahnaz Rouse.

Sentenced For A Crime The Government Did Not Prove: Jones V. United States And The Constitutional Limitations On Factfinding By Sentencing Factors Rather Than Elements Of The Offense, Benjamin Priester

Journal Publications

The tension between the two principles set out above is an unresolved dilemma for the United States Supreme Court. On the one hand, not every fact relevant to sentencing a criminal defendant warrants the Constitution's full criminal procedure protections. On the other hand, if those protections apply only to the facts selected by the legislature to determine guilt or innocence, the sentencing proceeding may overwhelm the trial in importance because the sentencing facts will determine the defendant's fate to a far greater extent. Justice Scalia described this tension bluntly: Suppose that a State repealed all of the violent crimes in …

"Lit. Theory" Put To The Test: A Comparative Literary Analysis Of American Judicial Tests And French Judicial Discourse, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

The formalism/policy dichotomy has structured American jurisprudential analyses of judicial decisionmaking for most of the twentieth century. In this Article, Professor Lasser analyzes and compares American multi-part judicial tests and French civil judicial discourse to demonstrate that the dichotomy reflects and informs the ways in which judicial decisions are written. Drawing on the works of Roman Jakobson, Roland Barthes, and Paul de Man, he constructs a literary methodology to analyze American and French judicial discourse. Professor Lasser contends that the formalism/policy dichotomy is part of a larger process by which the American and French judicial systems justify how they produce …

Victims' Rights, Rule Of Law, And The Threat To Liberal Jurisprudence, Ahmed A. White

Kentucky Law Journal

No abstract provided.

Crime Or Punishment: The Parental Corporal Punishment Defense - Reasonable And Necessary, Or Excused Abuse, Kandice Johnson

Faculty Publications

The parental right to use physical force to discipline and restrain children is a privilege firmly rooted in the American system of jurisprudence. This privilege is often asserted as a defense when parents are charged with a crime of aggression against their child. While the privilege to use disciplinary force is universally recognized as a defense in criminal actions, it is equally acknowledged that child abuse is a pervasive reality of American life. This article postulates that current laws, addressing assertion of the parental privilege defense in criminal actions, fail either to provide adequate guidance to parents or to sufficiently …

Reproductive Liberty Under The Threat Of Care: Deputizing Private Agents And Deconstructing State Action, Linda Kelly

Michigan Journal of Gender & Law

This Article uncovers the unsettling parallels between feminism and the recent restrictions on reproductive liberty in order to reveal the threat posed by the feminist ethic of care. By critically reexamining feminism's foundation and direction, the need for greater emphasis on female individuality becomes apparent. Kelly’s contention is that such a perspective, aggressively supported by the state, will ensure feminism's progress and encourage the achievement of gender equality.

The Role Of Variances In Determing Ripeness In Takings Claims Under Zoning Ordinances And Subdivision Regulations Of Texas Municipalities., John Mixon, Justin Waggoner

St. Mary's Law Journal

Texas zoning law follows the national standards in creating boards of adjustment. Unlike most states, Texas does not allow its boards of adjustment to grant so-called “use” variances. A variance is essentially a legal waiver from compliance with certain land-use regulations which is granted to a landowner by a government entity in certain limited cases. There are two general types of variances: the area variance and the use variance. Use variance permits the property in question to be used in a manner totally different than that allowed by the ordinance. Whereas the area variance only modifies or relaxes the degree …

Reinventing Common Interest Developments: Reflections On A Policy Role For The Judiciary, 31 J. Marshall L. Rev. 397 (1998), Evan Mckenzie

UIC Law Review

No abstract provided.

Home Businesses, Llamas And Aluminum Siding: Trends In Covenant Enforcement, 31 J. Marshall L. Rev. 443 (1998), Katharine N. Rosenberry

UIC Law Review

No abstract provided.

Corporate Decisionmaking And The Moral Rights Of Employees: Participatory Management And Natural Law, Stephen M. Bainbridge

Villanova Law Review

No abstract provided.

Title Vii And Negative Job References: Employees Find Safe Harbor In Robinson V. Shell Oil Company, 31 J. Marshall L. Rev. 521 (1998), Matthew J. Cleveland

UIC Law Review

No abstract provided.

Fidelity To Original Preferences: An Application Of Consumer Choice Theory To The Problems Of Legal Interpretation, 31 J. Marshall L. Rev. 1111 (1998), Ahmed M. Saeed

UIC Law Review

No abstract provided.

Ruth Bader Ginsburg: Extending The Constitution, 32 J. Marshall L. Rev. 197 (1998), Amy Walsh

UIC Law Review

No abstract provided.

Anasazi Jurisprudence, John W. Ragsdale Jr.

American Indian Law Review

No abstract provided.

From Whence Cometh Our State Appellate Judges: Popular Election Versus The Missouri Plan, Robert L. Brown

University of Arkansas at Little Rock Law Review

No abstract provided.

The Justice Who Wouldn't Be Lutheran: Toward Borrowing The Wisdom Of Faith Traditions, Marie A. Failinger

Cleveland State Law Review

Only a few legal scholars have attempted to work out what jurisprudence might look like if lawmakers and judges took their religious world-views seriously-and explicitly-in their work, in a way respectful of "the fact of pluralism." My task is to imagine the concrete case: what a judge's jurisprudence might look like if a judge considered the wisdom of his own religious tradition in constitutional cases. This article explores broad jurisprudential themes and specific First Amendment and social welfare opinions of Justice William Rehnquist, who for some years has been a member of a Lutheran congregation, my own denomination. While Justice …

What Ever Happened To The Appearance Of Fairness Doctrine? Local Land Use Decisions In An Age Of Statutory Process, W.T. Watterson

Seattle University Law Review

All states guarantee constitutional due process and fairness for both judicial and quasi-judicial proceedings. They differ, however, on the legal standard of fairness to apply to quasi-judicial proceedings. Many states rely on due process guarantees, that is, a proceeding which is fair in actual substance and procedure. Washington, however, has adopted more of the judicial standard for quasi-judicial actions, requiring "a hearing not only fair in substance, but fair in appearance as well." This "appearance of fairness doctrine" was originally developed within the context of local land use decisions. Later, it was applied to a broader spectrum of administrative proceedings. …

E-Law4: Computer Information Systems Law And System Operator Liability, David J. Loundy

Seattle University Law Review

This Article gives a summary of the current regulatory structure in the United States governing a few of the "Empires of Cyberspace," such as bulletin board systems, electronic databases, file servers, networks (such as the Internet) and the like. Different legal analogies that may apply will be illustrated, and some of their strengths, weaknesses, and alternatives will be analyzed. I will begin by looking at different types of computer information systems, and then the major legal issues surrounding computer information systems will be surveyed in brief. Next, the different legal analogies which could be applied to computer information systems will …

Judicial Supremacy And The Settlement Function, Robert F. Nagel

Publications

No abstract provided.

Whitehead's Metaphysics And The Law: A Dialogue, Jay Tidmarsh

Journal Articles

The purposes of this Article are to explore the relationship between Alfred North Whitehead's process philosophy and the nature of law, and to develop from that exploration a theory of "process jurisprudence." To some extent, this Article is a process of interpretation and imagination. Whitehead himself devoted little attention to the nature of law. Therefore, rather than attempting to declare definitively the implications of Whitehead's thought for the nature of law, this Article is structured in the form of a dialogue between "Whitehead" and a lawyer whom I have called "Chris." In Part II, as he discusses his system of …

The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer

Journal Articles

John Howard Yoder, prophet and theologian, died in his office at Notre Dame on December 30, 1997, the day after his seventieth birthday. Peter Steinfels's obituary in the New York Times of January 7, 1998, described my friend and colleague Yoder as "a Mennonite theologian whose writings on Christianity and politics had a major impact on contemporary Christian thinking about the church and social ethics." Steinfels did not describe Yoder's thought as jurisprudence; neither, for that matter, did Yoder. But there was (and is), throughout Yoder's scholarship, an implicit theology of law, a jurisprudence. A jurisprudence that is particularly noticeable …

Between Truth And Provocation: Reclaiming Reason In American Legal Scholarship, Francis J. Mootz Iii

Scholarly Works

Truth has regained a strong voice in American legal scholarship. Like a groggy patient slowly emerging from a traumatic operation, legal theory is being coaxed back to consciousness by Dan Farber and Suzanna Sherry. They are fighting the debilitating illness of radical multiculturalism and its attendant relativism; they proclaim that the cure can be found in the power of truth, the force or reason, and the integrity of the word. Unfortunately, the patient is unlikely to recover while in the care of Farber and Sherry, even though their operation must be judged a success on its own terms. By equating …

Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Immediate Accessibility Or Mere Transport: The Dueling Interpretations Of The "Carrying" Element Of 18 U.S.C. § 924 (C)(1), Laurette Domingo Mulry

Touro Law Review

No abstract provided.

Textualism And Judgment, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Textualism, like other foundationalist theories such as originalism, purports to be a grand theory of constitutional interpretation, answering all questions with the same single-minded and narrowly constrained technique. The inevitable result is a diminution of what one might call judgment. Judgment is what judges use to decide cases when the answer is not tightly constrained by some interpretive theory. It is an aspect of what others have called prudence, or pragmatism.' But if one has a theory of constitutional interpretation that is supposed to produce clear answers in a relatively mechanical way, there is little room for the exercise of …

A Century Lost: The End Of The Originalism Debate, Eric J. Segall

Faculty Publications By Year

Focuses on the originalism debate on the constitutional law of the United States. Contemporary debate; Analysis on the debate; Views an arguments on originalism.

The Christian Jurisprudence Of Robert E. Rodes Jr., Thomas L. Shaffer

Journal Articles

When I had the chance to leave law practice and become a fulltime law teacher, I turned, in the time-honored fashion, for advice from my law teachers. The most memorable and persistent of these—the most cheerful, too, and therefore the most hopeful—was Robert E. Rodes, Jr., then a young (36), transplanted New Yorker, Harvard law graduate, and Boston lawyer. He had already come to flourish, in the Aristotelian sense, in the Midwest—in a Catholic university known more for its football players than for its lawyers.

Rodes told me he had come to teaching and to Notre Dame because he wanted …

The New Etiquette Of Federalism: New York, Printz And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship

In New York v. United States, 505 U.S. 144 (1992), the Court revived "state sovereignty" as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly "commandeered" state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department of Corrections …

Whose Federalism, S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article examines briefly the Seminole Tribe and City of Boerne decisions. Part II then focuses on the ADA and the reasons why Congress made it applicable to government conduct as well as private conduct. Finally, Part III examines the argument, based on the new federalism, that the ADA should not apply to state entities. It does not appear that the Court's new federalism has had a liberty-enhancing effect for some of the most vulnerable persons in our society. The Court's revitalized federalism jurisprudence has led to questions about the continuing validity of many of our civil rights statutes as …

The Future Of The World Health Organization: What Role For International Law?, David P. Fidler

Vanderbilt Journal of Transnational Law

This Article has tried to provide a comprehensive analysis of the role of international law in WHO's future. Whether WHO realizes it, international law has had and will continue to have effects on international health policy. In the future, WHO has a choice: It can continue to act as if international law plays no role in global public health or it can build the commitment and capacity needed to integrate international law into its endeavors and into the creation of global health jurisprudence. Building such commitment and capacity will not resurrect WHO to its past glories, but they may very …