Jurisprudence Commons^™

Foreword: From Personal Life To Private Law: The Jurisprudence Of John Gardner, Scott Hershovitz

Other Publications

John Gardner was a great philosopher. He was appointed as the Professor of Jurisprudence at Oxford when he was still quite junior in the profession. It was a big job. Ronald Dworkin held the post before Gardner, and H.L.A. Hart before him. Gardner delivered on his promise. He had wide-ranging interests. He wrote about jurisprudence, criminal law, and tort law. His pushed those fields forward—and others too. Gardner’s scholarship was incisive, creative, rigorous, generous, and witty. He had a knack for illuminating law and life too. In recent years, Gardner published two books that tackled tort law: From Personal Life …

European Union Law As Foreign Law, Lior Zemer, Sharon Pardo

Vanderbilt Journal of Transnational Law

The importance and significance of comparative sources to the development of Israeli jurisprudence is expressed in local legislation and rulings. The impact of foreign law on the development of Israeli law has been analyzed and vindicated in numerous studies in the local legal literature. These studies typically focus on the two most prominent legal systems—-common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that Israel’s legal system is based on these legal regimes and is amended in the spirit of changes made to them. Over the years, …

Public Policy And The Insurability Of Cyber Risk, Asaf Lubin

Articles by Maurer Faculty

In June 2017, the food and beverage conglomerate Mondelez International became a victim of the NotPetya ransomware attack. Around 1,700 of its servers and 24,000 of the company’s laptops were suddenly and permanently unusable. Commercial supply and distribution disruptions, theft of credentials from many users, and unfulfilled customer orders soon followed, leading to losses that totaled more than $100 million. Unfortunately, Zurich, which had sold the company a property insurance policy that included a variety of coverages, informed Mondelez in 2018 that cyber coverage would be denied under the policy based on the “war exclusion clause.” This case, now pending, …

Paternalism, Tolerance, And Acceptance: Modeling The Evolution Of Equal Protection In The Constitutional Canon, John Tehranian

William & Mary Law Review

This Article proposes a legal taxonomy through which we can model changes in interpretations and applications of antidiscrimination principles to best understand the evolution of equal protection doctrine. The goal for doing so is two-fold. First, through a careful exegesis of a wide range of equal protection cases from the past hundred and fifty years, the analysis provides a positive theory to chart how respect for minority rights can progress within a given doctrinal space. Second, the analysis provides an unabashedly normative assessment of how closely a given legal regime comes to accepting and celebrating the inherent dignitary interests of …

Legislative Rule Between Firmness And Alteration- الحكم الشرعي بين الثبات والتغير

UAEU Law Journal

This article tackles the legislative rule, at the introduction we gave the meaning of legislative rule according of Scholars of Jurisprudence and Foundations of Jurisprudence, what are the differences between both, then the article was divided into Two Chapters. In Ch. 1, we talked about the firmness of the legislative rule, it includes Two sections, in sec. 1 we discussed the whole firmness of legislative rule, which means the continuous evidence and argument of it in all times and conditions. In sec. 2, we discussed the comparative firmness, which means that legislative rule which is produced from supposed evidence can …

Reality Jurisprudence From A Dogmatism And Suspicion Perspective, Sami Al Salahat

UAEU Law Journal

Reality and livelihood are fields of study for scholars from different backgrounds and interests, especially those of religious fundamentals. Hence reality is a base of showing up a number of practical speculated roles. This was clear in the Islamic jurisprudence, which fits a system of applications through fundamentals and the methods of the fundamental schools.

This paper is trying to discuss the relationship between speculations and suspicions fundamentals in the process of dealing with reality and any developed cases. With out omission of the modern social and human sciences, for a better understanding of the reality chains.

In order to …

The Path Less Traveled: A Natural Law Critique Of Justice Holmes’ Path Of The Law, Alexander Hamilton

Catholic University Law Review

American law and jurisprudence fail to solve fundamental problems in our country. Every lawyer and judge practices, knowingly or unknowingly, from a particular philosophy of law. Much of the practice of law in the United States is rooted in the thought of Justice Oliver Wendell Holmes, Jr. Holmes taught that law was not grounded in morality and logic, but rather the pragmatic rulings of judges. Our law schools and courts today follow Holmes in defining law as merely what a judge says it is. This Comment argues that Justice Holmes’ definition of law was fundamentally flawed and his jurisprudence should …

Jurisprudence Statements Versus Conventions In Islamic Jurisdiction

UAEU Law Journal

The Shariah text should be understood in light of the linguistic and contextual meaning understood during the time in which the text was issued. There might be a partial or total conflict between the text and the conventions. We should examine whether this conflict is total. In case the conflict was total, this will lead to suspending the text and removing its rule, then the convention will be decayed (void) and it will not be permissible to use. But if the conflict is partial as when the text is general and is in conflict with the conventions in some of …

The Interaction Between The Principles Of Syntax And Jurisprudence

UAEU Law Journal

Syntax has affected the science of Islamic law (Sharia) including jurisprudence (Fiqh) and its methodologies; it also has been influenced by some of the jurist's (Fuqaha) terminologies and their ideologies (Madh'hib). This research addresses the productive interaction between syntax and its principles on the one hand and jurisprudence and its methodologies on the other in four sections: the impact of syntax on jurisprudence, the impact of syntax on jurisprudence methodologies, the impact of jurisprudence on syntax and the impact of jurisprudence methodologies on syntax's principles.

The study ends with several results; the most important are the following:

- That the …

Recent Developments, Clinton T. Summers

Arkansas Law Review

The United States Supreme Court upheld an Arkansas law regulating how pharmacies are reimbursed by pharmacy benefit managers. In Rutledge v. Pharmaceutical Care Management Ass’n, a unanimous Court decided that Arkansas Act 900, passed in 2015, was not pre-empted by the federal Employee Retirement Income Security Act of 1974 (“ERISA”).

Learning From The Past: Using Korematsu And Other Japanese Internment Cases To Provide Protections Against Immigration Detentions, Caleb Ward

Arkansas Law Review

One of the darkest periods in modern United States history is reoccurring with mixed public approval. During World War II, the United States government enacted executive orders creating a curfew, proscribing living areas, and forcing the exclusion and detention of all Japanese descendants from the West Coast. The United States justified these grievous freedom and equality violations through an increased need for national security “because we [were] at war with [Japan].” However, this perceived increased need for national security came from a fraudulent assessment showing any Japanese-American could be planning espionage or sabotage of the United States. After the war, …

Reconstruction Ways Of Endowment At The Dubai Endowment & Minors Affairs Foundation

UAEU Law Journal

This study aims at providing information on why a large number of endowments are either scattered and misused or invested in a non strategic manner. Furthermore, this study shows the work on the analysis of existing conditions and potential for change for the purpose of activating or improving performance, developing or investing endowment in the right way. This objective is seen to be the main goal of any current endowment foundation and is aimed at better outcomes of endowment resources in the society. This study will also give a jurisprudence point of view on the rule of reconstruction and development …

Settled Law, G. Alexander Nunn, Alan M. Trammell

Faculty Scholarship

“Settled law” appears frequently in judicial opinions — sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful …

The Morality Of Fiduciary Law, Paul B. Miller

William & Mary Law Review

Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or should, fiduciary law prove responsive to them?

While in other areas of private law theory—notably, tort theory— pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional in the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several distinct forms of …

Reasoning The Legitimate Discourse And The Impact On Its Interpretation; A Judicial Doctrinal Study, Maher Haswa

UAEU Law Journal

This study deals with the assets of jurisprudence represented in the explanation and interpretation of the legitimate discourse (Alnuss). These are tools to analyze and understand the Qua’an and Suna discourse reaching out to accomplish its meaning.

This study builds and defines the concept of reasoning and the concept of cause after showing the conventions of jurisprudents to the concept of reason. The rationale of this study is Hikmat Almutakalmeen.

This study also shows the concept of Nuss, from its broad perspective, without any restraints; regardless of what it refers to. It also illustrates the difference between explanation and interpretation. …

Authenticity Of The Jurisprudential Rule: A Comparative Study, Ayman Abdel Hamid Al-Badarin

UAEU Law Journal

This research is about the accompany of intention principles in Islamic Sharia according to jurisprudence and basis. This will be through the source of prophetic rule that actions are ruled by what we meant to accomplish through them. Therefore, I have explained the meaning of the principle, its evidences, its importance. Its parts or sections, and the estimated act in the saying ~ actions depend on intentions ~. Also, why intention is importantly considered, its location, and ruling on pronunciation principle. I have discussed the intention as a basis and as a condition, its time. The condition of the principle …

Islam And Democracy: Appreciating The Nuance And Complexity Of Legal Systems With A Basis In Religion, Massimo Campanini, Mohamed Arafa

Barry Law Review

No abstract provided.

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

Objective Punishment, Anthony M. Dillof

Law Faculty Research Publications

Should the punishment fit the criminal as well as the crime? The article argues that idiosyncratic features of the criminal that might affect subjective punishment experience should not be considered when assessing the severity of the punishment for proportionality purposes.

The Image Of European Union Law In Bilateral Relations, Sharon Pardo, Lior Zemer

Vanderbilt Journal of Transnational Law

The impact of foreign law on the development of national laws has been analyzed and vindicated in numerous studies in comparative legal literature. These studies typically focus on the two most prominent legal systems--common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that the world's legal systems are based on these legal regimes and are amended in the spirit of changes made to them. Over the years, however, with the many effects of legal and economic globalization, legal systems have become a diverse mosaic which has appropriated …

What's The Deal With Revlon?, Zachary Gubler

Indiana Law Journal

Under the Revlon doctrine, courts are to apply a higher level of scrutiny in certain takeover situations in an attempt to control potential conflicts of interest that might prejudice target shareholders. However, the doctrine has always had sufficient “play in the joints” that one might reasonably wonder whether it has much of an effect in practice on short-term shareholder returns. Additionally, in recent years, the trend in Delaware’s Revlon jurisprudence seems to be to defer to the target board as long as there are no glaring conflicts of interest. Taken together, these facts raise concern over the continued relevance of …

Dissenting From The Bench, Christine Venter

Journal Articles

This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …

Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh

Touro Law Review

No abstract provided.

Disruptive Implications Of Legal Positivism’S Social Efficacy Thesis, Brian Z. Tamanaha

Scholarship@WashULaw

The social efficacy thesis holds that for law to exist it must be generally obeyed by the populace. Accepted by virtually all legal positivists, this is the most neglected thesis of legal positivism. Despite its nigh universal acceptance by theorists, however, the efficacy thesis is surrounded with unanswered questions with significant implications. Several questions immediately come to mind: How widespread must conformity to law be? What must people conform to (all areas of law)? Who must conform (legal officials, government officials, the entire populace, significant groups)? What does conformity entail (normatively, knowingly, behaviorally)? This essay explores these issues and a …

Practicing The Be Practice Ready: Making Competent Legal Researchers Using The New Process And Practice Method, Jason Murray

Faculty Scholarship

No abstract provided.

A Reconstruction Of Transnational Legal Pluralism And Law’S Foundations, Brian Z. Tamanaha

Scholarship@WashULaw

This essay addresses core theoretical issues surrounding global/transnational legal pluralism, taking up the work of leading theorists. First, I demonstrate that global legal pluralism is very different from earlier versions of legal pluralism (postcolonial and sociological). Next, I expose the flaw of over-inclusive conceptions of legal pluralism, which appears in the global legal pluralism of Paul Berman, and I explain why theoretical concepts of law cannot solve this flaw. I then address the profusion of private and hybrid regulatory forms on the domestic and transnational levels, and I mark the line between theory and practice. Thereafter, I expose problems with …

Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task …

The Morality Of Fiduciary Law, Paul B. Miller

Journal Articles

Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or ought, fiduciary law prove responsive to them?

Where in other areas of private law theory – notably, tort theory – pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional for the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several …

Functions Of The Rule Of Law, Brian Z. Tamanaha

Scholarship@WashULaw

This concise essay examines multiple manifest and latent functions of the rule of law. The rule of law is characterized as a society in which government officials and the populace are generally bound by and abide law. The functions covered include: personal and collective security and trust; integration of society; legal restrictions on officials; liberty and guiding conduct; economic development; a pivotal place for legal professionals; entrenching power structures; normative commitment and critical standard; and rhetoric. The discussion raises core issues about each function.

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …