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Articles 1 - 23 of 23
Full-Text Articles in Jurisprudence
Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan
Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan
Faculty Scholarship
This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use …
For Legal Principles, Mitchell N. Berman
For Legal Principles, Mitchell N. Berman
All Faculty Scholarship
Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist.
In …
Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall
Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall
Amy J. Sepinwall
Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas
Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas
All Faculty Scholarship
Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …
Criminal Prosecution And Section 1983, Barry C. Scheck
Criminal Prosecution And Section 1983, Barry C. Scheck
Touro Law Review
No abstract provided.
The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad
The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad
Zeina Jallad
The Power of the Body:
Analyzing the Logic of Law and Social Change in the Arab Spring
Abstract:
Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …
At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson
At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson
Lisa Tripp
The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.
AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …
The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun
The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun
Daniel M Braun
The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …
‘Jogalkotási Javaslatok Megfogalmazása A Jogtudományban’ [Policy Proposals And Legal Scholarship], Péter Cserne, György Gajduschek
‘Jogalkotási Javaslatok Megfogalmazása A Jogtudományban’ [Policy Proposals And Legal Scholarship], Péter Cserne, György Gajduschek
Péter Cserne
This is the manuscript of a chapter written for a Hungarian handbook on legal scholarship. It provides an historical overview and a theoretical defense of a policy oriented, in contrast to doctrinal, study of law. The chapter also provides an introduction to the foundations and methodological tools of public policy analysis, including regulatory impact assessment.
Between “Metaphysics Of The Stone Age” And The “Brave New World”: H.L.A. Hart On The Law’S Assumptions About Human Nature, Péter Cserne
Between “Metaphysics Of The Stone Age” And The “Brave New World”: H.L.A. Hart On The Law’S Assumptions About Human Nature, Péter Cserne
Péter Cserne
This paper analyses H.L.A. Hart’s views on the epistemic character of the law’s assumptions about human behaviour, as articulated in Causation in the Law and Punishment and Responsibility. Hart suggests that the assumptions behind legal doctrines typically combine common sense factual beliefs, moral intuitions, and philosophical theories of earlier ages with sound moral principles, and empirical knowledge. An important task of legal theory is to provide a ‘rational and critical foundation’ for these doctrines. This does not only imply conceptual clarification in light of an epistemic ideal of objectivity but also involves legal theorists in ‘enlightenment’ about empirical facts, ‘demystification’ …
Children's Oppression, Rights And Liberation, Samantha Godwin
Children's Oppression, Rights And Liberation, Samantha Godwin
Samantha Godwin
This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …
The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato
The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato
Faculty Working Papers
I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.
The Rule Of Law As An Institutional Ideal, Gianluigi Palombella
The Rule Of Law As An Institutional Ideal, Gianluigi Palombella
Gianluigi Palombella
This article aims at offering an innovative interpretation of the potentialities of the "rule of law" for the XXI Century. It goes beyond current uses and the dispute between formal and substantive conceptions, by reaching the roots of the institutional ideal. Also through historical reconstruction and comparative analysis, the core of the rule of law appears to be a peculiar notion, showing a special objective that the law is asked to achieve, on a legal plane, largely independent of political instrumentalism. The normative meaning is elaborated on and construed around the notions of institutional equilibrium, non domination and "duality" of …
Szerződésértelmezés Hermeneutika És Jogpolitika Között. A Contra Proferentem Szabály [Contract Interpretation Between Hermeneutics And Policy: The Contra Proferentem Rule], Péter Cserne
Péter Cserne
This paper discusses why contract interpretation is substantially different from the interpretation of literary works and illustrates the argument with the analysis of the contra proferentem rule. It is a substantially revised version of my ‘Policy considerations in contract interpretation: the contra proferentem rule from a comparative law and economics perspective’ (2009)
Global Threads: Weaving The Rule Of Law And The Balance Of Legal Software, Gianluigi Palombella
Global Threads: Weaving The Rule Of Law And The Balance Of Legal Software, Gianluigi Palombella
Gianluigi Palombella
The article shows how the global legal sphere attempts to compensate the lack of a system (hardware) and faces the proliferation of legal normativities (software). The author elaborates on the role of the rule of law: after stressing the ambiguities and the contestability of its current uses in the confrontations between legal orders and regulatory regimes, it is explained that the persistence and promise of the rule of law in the global setting depend on the weaving of a set of meta-rules (a special kind of software) developed through various areas and sources of legalities in the international environment. Eventually, …
Legal Storytelling: The Theory And The Practice - Reflective Writing Across The Curriculum, Nancy Levit
Legal Storytelling: The Theory And The Practice - Reflective Writing Across The Curriculum, Nancy Levit
Nancy Levit
This article concentrates on the theory of narrative or storytelling and addresses the reasons it is vital to encourage in law schools in non-clinical or primarily doctrinal courses. Section I traces the advent of storytelling in legal theory and practice: while lawyers have long recognized that part of their job is to tell their clients' stories, the legal academy was, for many years, resistant to narrative methodologies. Section II examines the current applications of Writing Across the Curriculum in law schools. Most exploratory writing tasks in law school come in clinical courses, although a few adventurous professors are adding reflective …
Jogelmélet Jog Nélkül? [Legal Theory Without Law?], Péter Cserne
Jogelmélet Jog Nélkül? [Legal Theory Without Law?], Péter Cserne
Péter Cserne
No abstract provided.
The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella
The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella
Gianluigi Palombella
The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international …
The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash
The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash
ExpressO
For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …
Retrieving Positivism: Law As Bibliolatry, Frederick C. Decoste
Retrieving Positivism: Law As Bibliolatry, Frederick C. Decoste
Dalhousie Law Journal
Legal positivism is a curious phenomenon in both its theoretical and sociological parts. It is curious as theory because its very existence, as theory, is often questioned, and because, even when its existence is admitted, the nature of the theory, and who does and does not qualify as an adherent most often remains in dispute. It is curious sociologically because rare is the legal theoretician who forthrightly endorses positivism: positivists, it would appear, are as scarce as the formalists among whom they used to be numbered.
Are Constitutional Cases Political?, Brian Slattery
Are Constitutional Cases Political?, Brian Slattery
Articles & Book Chapters
To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that …
Jurisprudence And Gender, Robin West
Jurisprudence And Gender, Robin West
Georgetown Law Faculty Publications and Other Works
What is a human being? Legal theorists must, perforce, answer this question: jurisprudence, after all, is about human beings. The task has not proven to be divisive. In fact, virtually all modern American legal theorists, like most modern moral and political philosophers, either explicitly or implicitly embrace what I will call the "separation thesis" about what it means to be a human being: a "human being," whatever else he is, is physically separate from all other human beings. I am one human being and you are another, and that distinction between you and me is central to the meaning of …
Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc
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.