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Articles 61 - 90 of 116
Full-Text Articles in Jurisprudence
Spam Jurisprudence, Air Law, And The Rank Anxiety Of Nothing Happening (A Report On The State Of The Art), Pierre Schlag
Spam Jurisprudence, Air Law, And The Rank Anxiety Of Nothing Happening (A Report On The State Of The Art), Pierre Schlag
Publications
In 1969, I saw The Endless Summer. It was a surfer movie about two guys (Robert and Mike) who traveled the world in search of the perfect wave. High art -- it was not. Plus the plot was thin. And it's for sure, there weren't enough girls. But there was one line which, for my generation, will go down as one of the all-time great movie lines ever. And always it was a line delivered by some local to Robert and Mike, the surfer dudes, as they arrived on the scene of yet another dispiritingly becalmed ocean. And every …
Virtual Rule Of Law, Michael Risch
Virtual Rule Of Law, Michael Risch
Michael Risch
This article, which follows a presentation at the West Virginia Law Review Digital Entrepreneurship Symposium, is the first to consider whether virtual worlds provide a rule of law that sets expectations for virtual business. Many consider the rule of law a catalyst for economic development, and there is reason to believe that it will be equally important in virtual economies, despite differences from the real world. As more people turn to virtual worlds to earn a livelihood, the rule of law will become prominent in encouraging investments in virtual business. The article finds – unsurprisingly – that virtual worlds now …
Jogelmélet Jog Nélkül? [Legal Theory Without Law?], Péter Cserne
Jogelmélet Jog Nélkül? [Legal Theory Without Law?], Péter Cserne
Péter Cserne
No abstract provided.
Under-The-Table Overruling, Christopher J. Peters
Under-The-Table Overruling, Christopher J. Peters
All Faculty Scholarship
In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …
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 …
Thinking With Wolves: Left Legal Theory After The Right's Rise (Review Essay), Martha T. Mccluskey
Thinking With Wolves: Left Legal Theory After The Right's Rise (Review Essay), Martha T. Mccluskey
Book Reviews
Reviewing Wendy Brown & Janet Halley, Left Legalism/Left Critique (2001).
Left legal theory is in crisis. This crisis reflects a broader problem of contemporary U.S. politics: the lack of grand ideas capable of mobilizing meaningful opposition to the triumph of the political right. Right-wing legal theory has contributed to that dramatic political change by promoting ideas questioning the foundations of the twentieth century liberal welfare and regulatory state.
This review essay analyzes a rare recent attempt to revive left legal theory in the face of the right's triumph: the anthology Left Legalism/Left Critique edited by Wendy Brown and Janet Halley …
The Multistate Bar Exam As A Theory Of Law, Daniel J. Solove
The Multistate Bar Exam As A Theory Of Law, Daniel J. Solove
Michigan Law Review
What is the most widely read work of jurisprudence by those in the legal system? Is it H.L.A. Hart's The Concept of Law? Ronald Dworkin's Law's Empire? No. It is actually the Multistate Bar Exam ("Bar Exam"). Perhaps no other work on law has been so widely read by those in the legal profession. Although the precise text of the Bar Exam is different every year, it presents a jurisprudence that transcends the specific language of its text. Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study …
Deferring, Frederick Schauer
Deferring, Frederick Schauer
Michigan Law Review
Many academics, upon encountering a book on deference by a leading legal theorist, would assume that the book was still another contribution to a long and prominent debate about the existence (or not) of an obligation to obey the law. But that would be a mistake. In fact, this is a book not about obligation or obedience but about deference, and it is precisely in that difference that the significance of Philip Soper's book lies. Especially in law, where the Supreme Court (sometimes) defers to the factual, legal, and even constitutional determinations of Congress and administrative agencies, where appellate courts …
Unity And Pluralism In Contract Law, Nathan Oman
Unity And Pluralism In Contract Law, Nathan Oman
Michigan Law Review
It is a cliché of contemporary legal scholarship that, in the last few decades, the study of law has witnessed a vast proliferation of competing theoretical approaches. The old faith in the careful honing of doctrinal concepts and the essential usefulness of legal analysis has given way to a cacophony of competing theoretical sects. Economists, moral philosophers, sociologists, historians, and others have stepped forward to offer the insights of this or that discipline as a new and superior path to legal enlightenment. Perhaps nowhere has this cliché been truer than in the realm of contracts scholarship, where, for a generation, …
Philosophy Of Contract Law, Jody S. Kraus
Philosophy Of Contract Law, Jody S. Kraus
Faculty Scholarship
This article identifies a set of methodological commitments that help to explain the methodological differences between autonomy (deontic) and economic contract theories that have opposing views about the nature of law and legal theory. It begins with the discussion of the four methodological issues that divide contemporary autonomy and economic theories of contract. The dispute over the relative priority of the normative and explanatory enterprises of contract theory may simply reflect the different theoretical goals of deontic and economic theorists. These intellectual origins may explain not only the different priorities of deontic and economic contract theories, but their different conceptions …
My Dinner At Langdell's, Pierre Schlag
My Dinner At Langdell's, Pierre Schlag
Publications
This essay begins on one of those cold wet April Cambridge mornings. It was too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse - the laudanum was wearing off. Tonight would be dinner at Langdell's. It occurred to me that not everyone is invited to Langdell's for dinner - certainly not wayward law professors from the provinces. This was an extraordinary opportunity. Blackstone would be there. Duncan Kennedy perhaps. Certainly the early Llewellyn. I knocked on the door.
The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster
The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster
UF Law Faculty Publications
This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …
Meditating Comparisons, Or The Question Of Comparative Law, Igor Stramignoni
Meditating Comparisons, Or The Question Of Comparative Law, Igor Stramignoni
San Diego International Law Journal
Many today claim that, after WWII, the fall of the Berlin wall and, now, September 11, 2001, the changing nature of nation states, democracy, and the law can no longer be sensibly ignored. How can comparative law contribute to such an important debate? In what follows, it is argued that one way to contribute to the debate over the changing nature of nation states, democracy, and the law would be to engage in poetic comparisons of law's many domains. What, then, are poetic comparisons of law, and what do they invite us to do? Learning from Martin Heidegger's life-long advocacy …
Meaning's Edge, Love's Priority, Patrick Mckinley Brennan
Meaning's Edge, Love's Priority, Patrick Mckinley Brennan
Michigan Law Review
The story is told of an American wending his way through the British Museum. Reaching the Rosetta Stone, he reached right over the railing, touched the scarred slab, and lamented: "It doesn't feel meaningful." Whereupon an old Briton was heard to mumble: "The poor American's got this old thing confused with the Blarney Stone." A bully presses his case, but meaning is much more modest. Powerless to insist upon itself, meaning lies in wait of discovery. What distinguishes the Rosetta Stone from other rocks of the same kind and size is that it was someone's - or rather a group's …
The Unruliness Of Rules, Peter A. Alces
The Unruliness Of Rules, Peter A. Alces
Michigan Law Review
Analytical jurisprudence depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory - indeed, before we can even know what those questions are - we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence (or lack thereof) between inclusive and exclusive positivism. That …
Negotiating The Jurisprudential Terrain: A Model Theoretic Approach To Legal Theory, Christopher Roederer
Negotiating The Jurisprudential Terrain: A Model Theoretic Approach To Legal Theory, Christopher Roederer
Seattle University Law Review
This paper explores borrowing a meta-theoretical approach to theory from the natural and social sciences in order to provide a framework within which to situate and evaluate the various theories one encounters in the field of law and jurisprudence. Often it is the case that students of jurisprudence go from one school or theory to another with one of three responses: (1) this makes no sense to me; (2) this makes some sense, but what is the point or relevance; or (3) this makes sense and seems true, but so do many of the schools, theories, and theorists we have …
Law's Constitution: A Relational Critique, Victoria Nourse
Law's Constitution: A Relational Critique, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
It is a simple fact: we begin from others. Without others we, quite literally, could not live, feel, be born. Every mother, every mother's partner, every father, every child, knows this. But law sees these relations as something lesser, as foreign. Mention the word "relationship" to the average lawyer and she will likely assume that you are talking about sex, dating, or perhaps marriage. She may even wonder what "relationship" has to do with the law at all.
In this paper, the author wonders whether it is possible to flip that equation, to think of the relational as central, rather …
Beyond Interpretation, Pierre Schlag
Introduction, Emily Sherwin
Introduction, Emily Sherwin
San Diego Law Review
Recent debate about theory in legal scholarship' has raised more questions about theory and law than it has answered. For example, just what is meant by "theory" in the context of law? Is there a form of theory that is uniquely "legal" theory, or is legal theory merely moral theory applied to law? If there is such a thing as legal theory, does the body of positive law, and particularly the decisions of judges, inform legal theory, or does theory inform law? What, if any, are the justifications for constructing theories of law?
Theories Of Areas Of Law, Michael Moore
Theories Of Areas Of Law, Michael Moore
San Diego Law Review
The topic of this symposium is "theories and the law." Since this is such an enormously broad topic, the first thing to do is to narrow it a bit. As I shall discuss it, the topic is not on the central topic of jurisprudence, which is the theory of law. My topic is theories within our law, rather than theories about the nature of law in general. Often we call such theorizing internal to the law we have, "internal jurisprudence," to be contrasted with an "external jurisprudence" that is about law as such. Within internal jurisprudence, there is still considerable …
Two Aspects Of Law And Theory, Ronald J. Allen
Two Aspects Of Law And Theory, Ronald J. Allen
San Diego Law Review
In the last quarter of the twentieth century, there was much ado about law and theory, or the relationship between law and theory, or legal theory, phrases that I take to be synonymous, two aspects of which I want to discuss briefly today. With an introductory sentence like that, the normal expectation would be that the next sentence would somehow work in the phrase "about nothing," and, not wanting to be unpredictable, thus casting doubt on somebody's behavioral theory, I will fulfill this expectation by saying that a fair amount of the ado about legal theory was indeed about nothing. …
Theory Minimalism, Stanley Fish
Theory Minimalism, Stanley Fish
San Diego Law Review
We must begin with a sense of what theory is, and I shall derive mine from a question Herbert Wechsler often put to his students. "Ask yourself," he would say, "'Would I reach the same result if the substantive interests were otherwise?"" The challenge of the question is to the student who has determined where the right lies in a disputed matter, and who now must demonstrate that, even if every circumstantial particular of the case were varied-if the plaintiff were a woman instead of a man, if the object of hate speech was a descendant of someone who came …
Theory's A What Comes Natcherly, Larry Alexander
Theory's A What Comes Natcherly, Larry Alexander
San Diego Law Review
So what kind of theorizing do we do in law? First, we do empirical, predictive theorizing. We form hypotheses about how the world will be affected by various rules of law, because of their content and form, and by the design of our legal institutions. These hypotheses can be confirmed or falsified. We also form hypotheses about how particular judges will decide future cases, or how legislatures and agencies will react to various proposals. When we do legal history, we reason backwards from effects and form hypotheses about their causes. The second type of theorizing we do is normative. In …
Apparently Substantial, Oddly Hollow: The Enigmatic Practice Of Justice, Heidi Li Feldman
Apparently Substantial, Oddly Hollow: The Enigmatic Practice Of Justice, Heidi Li Feldman
Michigan Law Review
The Practice of Justice: A Theory of Lawyers' Ethics, by William H. Simon, is one of the most thoughtful and important books in legal theory - not just legal ethics - published in the past ten years. Like David Luban's seminal contribution to legal ethics, Lawyers and Justice: An Ethical Study, published a decade ago, Simon's book is a deliberate rival to accounts of lawyers' professional responsibility that begin with a command to zealous advocacy, end with a prohibition on outright illegal conduct, and offer nothing in between. Authors and commentators have grown increasingly dissatisfied with this as the basic …
The New Legal Hermeneutics, Francis J. Mootz, Iii
The New Legal Hermeneutics, Francis J. Mootz, Iii
Vanderbilt Law Review
Incorporating the Continental philosophical tradition of hermeneutics into legal scholarship appears to be a project relevant only to a few jurisprudes locked away in the uppermost reaches of the ivory tower. Many scholars undoubtedly would argue that the tradition and focus of twentieth-century German philosophy is far removed from the troubling interpretive issues that arise in the American legal system, regardless of any interesting parallels or comparisons that might be drawn., From this perspective, the renewed attention to hermeneutical philosophy by legal scholars is viewed as just one of an increasing number of esoteric, intellectual cul-de-sacs that have diverged from …
The Limits Of Preference-Based Legal Policy, Herbert J. Hovenkamp
The Limits Of Preference-Based Legal Policy, Herbert J. Hovenkamp
All Faculty Scholarship
America's political institutions are built on the principle that individual preferences are central to the formation of policy. The two most important institutions in our system, democracy and the market, make individual preference decisive in the formation of policy and the allocation of resources. American legal traditions have always reflected the centrality of preference in policy determination. In private law, the importance of preference is reflected mainly in the development and persistence of common-law rules, which are intended to facilitate private transactions over legal entitlements. In constitutional law, the centrality of preference is reflected in the high position we assign …
Foreword: The Jurisprudence Of Reconstruction, Angela Harris
Foreword: The Jurisprudence Of Reconstruction, Angela Harris
Angela P Harris
No abstract provided.
Will There Be A Science Of Law In The Twenty-First Century?, Richard Stith
Will There Be A Science Of Law In The Twenty-First Century?, Richard Stith
Law Faculty Publications
The skepticism of the American Legal Realists and their heirs threatens to make a politically neutral science of law impossible and thus to undermine the liberal polity which needs such a science. Ronald Dworkin attempts to refute the skeptics and defend both legal theory and liberalism. However, the author points out, Dworkin and liberalism are themselves skeptics when it comes to moral principles, and, therefore, they cannot wholly escape from similar skepticism with regard to legal principles. Both Anglo-American and Continental legal history are examined in the course of these arguments.
Nomos And Thanatos (Part B). Feminism As Jurisgenerative Transformation, Or Resistance Through Partial Incorporation?, Richard F. Devlin
Nomos And Thanatos (Part B). Feminism As Jurisgenerative Transformation, Or Resistance Through Partial Incorporation?, Richard F. Devlin
Dalhousie Law Journal
In Part A of this essay, "The Killing Fields", I developed a critique of the disciplinary impulses that underlie modern law and legal theory. Invoking a number of perspectives and a plurality of analyses, I proposed that male-stream legal theory and contemporary law both assume as inevitable, and legitimize as appropriate, the funnelling of violence through law. The problem with a funnel, however, is that it does not curtail or reduce that which is channelled through it. On the contrary, to funnel is to condense and to intensify. Viewed from this perspective, interpreted from the bottom up, law and legal …