Jurisprudence Commons^™

Human Rights Pragmatism And Human Dignity, David Luban

Georgetown Law Faculty Publications and Other Works

Human rights sound a lot like moral rights: rights that we have because we are human. Many philosophers think it follows that the list of international human rights must therefore be founded on some philosophical account of moral rights or of human dignity. More recently, other philosophers have rejected this foundationalist picture of international human rights (“foundationalist” meaning that moral rights are the foundation of international human rights). These critics argue that international human rights need no philosophical foundation; instead, we should look to the actual practices of human rights: the practices of international institutions, tribunals, NGOs, monitors, and activists. …

Is The First Amendment Entrenched? Rawls’ Curious Claim, Gordon D. Ballingrud

Gordon D Ballingrud

. This paper addresses a claim made by John Rawls in Lecture VI of Political Liberalism: any American constitutional amendment, ratified through Article V, which overturned the First Amendment would be illegitimate and justly ruled unconstitutional by the Supreme Court. Addressing the apparent contradiction that a duly enacted constitutional amendment can be unconstitutional, this paper reconstructs and critiques Rawls claim along two lines. First, I address Rawls’ philosophical claim as to the de facto entrenchment of the First Amendment, and the mechanisms that Rawls implicitly and explicitly purports to entrench it. I also address the claim that a First …

Artistic And Cultural Practices In Urban Spaces: Law, Justice, Contestation, Matilda Arvidsson, Peter Bengtsen

Dr Matilda Arvidsson

For the 2013 Critical Legal Conference, we sent out a call for papers which dealt with different perspectives on artistic and cultural practices in the transitional and contested territory of urban public space. With nearly 50 abstracts received from all over the world, the response to our call was overwhelming. Ethnographers, sociologists, art historians, architects, artists, and cultural entrepreneurs wanted to engage with law. Interestingly, judging from the abstracts, legal scholars seemed less concerned with engaging in a discussion of artistic expressions, as few responded to the call. Departing from this experience we seek to approach the urban space, art …

Equidad Pensional Y Salario Base. La Interpretación Judicial Como Base De Inequidad, Fernando Castillo Cadena

Fernando Castillo Cadena

This paper addresses the current problem of interpretation of what should be understood as basic salary for the settlement of the pension bond type A mode 2, for members who move to individual savings scheme, showing how interpretations of the Constitutional Court and the Labor Appeal Chamber of the Supreme Court do not conform to the financial and economic content the law provides, and therefore, create problems of pension equity.

La Tercería De Propiedad Contra Garantías Reales, Jimmy J. Ronquillo Pascual

Jimmy J. Ronquillo Pascual

El autor se encuentra a favor de la posibilidad de que vía tercería de dominio se levanten afectaciones judiciales como extrajudiciales (garantías reales). Sin embargo, considera que no basta con derogar el segundo párrafo del artículo 533 del Código Procesal Civil, ya que eso implicaría el retroceso a un escenario en el que la jurisprudencia era contradictoria y tendía a rechazar in limine las pretensiones del tercerista. Finalmente, reconoce que la tercería de propiedad mantiene aún muchos aspectos que deben ser esclarecidos y que una eventual reforma debe mirar íntegramente esta figura.

The Pallant V Morgan Equity Reconsidered, Man Yip

Research Collection Yong Pung How School Of Law

This paper argues that the Pallant v Morgan equity should not be recognised as an independent doctrine because it does not rest on any tenable jurisprudential basis. It shows that a characterisation based on ‘common intention’ should be rejected because it is inconsistent with established legal principles and commercial practice. The alternative explanation based on breach of fiduciary duty, as suggested by Etherton LJ in Crossco No. 4 Unlimited v Jolan Unlimited [2011] 2 All ER 754 fares no better, as there is no reason why the Pallant v Morgan equity cases should be considered separately from other instances of …

Democracy And Renewed Distrust: Equal Protection And The Evolving Judicial Conception Of Politics, Bertrall L. Ross

Bertrall L Ross

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court …

Scotus Short Title Turmoil: Time For A Congressional Bill Naming Authority, Brian Christopher Jones

Brian Christopher Jones

This past summer saw the U.S. Supreme Court’s landmark decision in United States v. Windsor, and while the case has generated copious amounts of commentary and scholarship, relatively little attention has been paid to the case’s discussion of bill short titles. Central to the case’s analysis was a dispute over the role of short titles in inferring legislative purpose, and given this dispute, this Remark will argue that it’s time for a Congressional bill naming authority to ensure sensible, descriptive bill names.

The Virtue In Bankruptcy, Matthew Adam Bruckner

Matthew Adam Bruckner

In response to a gap in the corporate bankruptcy literature, this Article offers a new positive theory of corporate bankruptcy law based on virtue ethics. The dominant theory of corporate bankruptcy law—the creditors’ bargain model—is necessarily incomplete because it does not account for bankruptcy courts’ equitable and discretionary powers, or for bankruptcy courts’ need to consider decision-making criteria other than economic efficiency. By contrast, virtue ethics offers insights about these features of corporate bankruptcy law for at least three reasons. First, bankruptcy courts appear to give content to bankruptcy laws by using virtue ethical principles. Second, virtue ethics’ decision-making process—practical …

Introducing The ‘Reconciliatory Approach’ – Harmonizing International Environmental Law With Other Specialised Areas Of International Law, Britta Sjöstedt

Britta Sjöstedt

In this paper, I argue that international environmental treaties can interact with other specialised areas of law applicable to the same subject matter in the same context by using the ‘reconciliatory approach’ (RA). This approach entails that the institutions established under the environmental treaties are empowered to develop the treaty provisions in a manner that may also take other legal areas into account and thereby be able to reconcile obligations of other specialised legal areas. The RA functions on the premise that international law is one system with the inherent ambition to coherently systematize its norms. By looking at the …

Trademark As Promise, Laura A. Heymann

Popular Media

No abstract provided.

What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller

Akiva A Miller

New information technologies have dramatically increased sellers’ ability to engage in retail price discrimination. Debates over using personal information for price discrimination frequently treat it as a single problem, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different ethical concerns they raise. This paper explores the ethical and legal debate over regulating price discrimination facilitated by consumers’ personal information. Various kinds of “privacy remedies”—self-regulation, technological fixes, state regulation, and legislating private causes of legal action—each have their place. By drawing distinctions between various …

Judicial Discretion: A Look Back And A Look Forward Five Years After Booker, Erik Luna

Erik Luna

Not available.

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

Jay Tidmarsh

No abstract provided.

The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Should A Christian Lawyer Sign Up For Simon's Practice Of Justice?, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Toward A Jurisprudence For The Law Office, Thomas L. Shaffer, Louis M. Brown

Thomas L. Shaffer

No abstract provided.

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

Thomas L. Shaffer

No abstract provided.

Maybe A Lawyer Can Be A Servant; If Not…, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Pilgrim Law, Robert E. Rodes

Robert Rodes

No abstract provided.

On Professors And Poor People - A Jurisprudential Memoir, Robert E. Rodes

Robert Rodes

This article describes the origin and sources of the author's jurisprudential doctrine, and his adoption of liberation theology as a way of reconciling Sociological Jurisprudence with the philosophy of history. It argues that the pursuit of justice is eschatologically validated even though its historical fruition is problematical. It goes on to discuss the working out in legal practice of the liberationists' call for a preferential option for the poor.

On The Historical School Of Jurisprudence, Robert E. Rodes

Robert Rodes

Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as these …

Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes

Robert Rodes

This paper analyzes particular passages in Holmes's famous lecture, and notes important inconsistencies and failings in his approach. After arguing strongly that moral considerations should not enter into legal judgments, he criticizes legal judgments in the light of moral considerations. After defining law as a prediction of what the courts will do, he seems to criticize courts for getting the law wrong in their decisions. His advice to learn the legal profession by studying law from the standpoint of a bad man leaves out of account the numerous potential clients who wish to be law abiding citizens and to seal …

Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller

Russell A. Miller

Politics' and pathology have converged to heighten speculation that Justice Ruth Bader Ginsburg's tenure on the Supreme Court is nearing its end. Even if the imminence of her retirement is greatly exaggerated, the time to reflect on Justice Ginsburg's lasting contribution to American constitutional law has arrived. Justice Ginsburg is best known for her long campaign to promote gender equality. Her successful advocacy on that issue before the Supreme Court throughout the 1970s led President Clinton to conclude, when announcing her nomination to fill Justice Byron White's vacated seat on the high court, that she is to the women's movement …

Legal Summaries , Emily Edwards

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Settled Versus Right: Constitutional Method And The Path Of Precedent, Randy J. Kozel

Randy J Kozel

No abstract provided.

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Barry Cushman

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …

The Kaffatan Constitution, Liaquat Ali Khan

Ali Khan

This Kaffatan Constitution is transformative energy guarding the peoples of the world, animals, and all life species that exist or may come to exist in the future. It transforms communities across the world, whether these communities are nation-states, provinces, cities, town, neighborhoods, or virtual communities, and turn them into Free States and Perfect Communities. Free State is Perfect Community and Perfect Community is Free State. The two are synonymous. Perfect Community is the radiance of Supreme Truth. Perfect Community evolves out of ordinary communities if, when, and while it seeks guidance from Supreme Truth. You are Perfect Community. You evolve …

Severability, John C. Nagle

John Copeland Nagle

When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute. This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …