Jurisprudence Commons^™

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Marriage And The Elephant: The Liberal Democratic State’S Regulation Of Intimate Relationships Between Adults , Maxine Eichner

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This essay considers the current debate in legal theory over the stance that the state should adopt toward intimate relationships between adults. Should the state, as some scholars argue, privilege marriage because of the benefits it provides to society? Or should it, as others argue, distance itself from relationships between adults on the ground that adults should be left to order their own affairs? The essay argues that scholars involved in this debate have reached such diametrically different conclusions from one another because each side has focused on a particular, narrow range of goods at issue in these relationships. Relationships …

He Said-She Said: On Credibility And The New Reason, Nancy Rourke

ExpressO

The traditional wisdom in the field of evidence holds that, if there is a direct contradiction in the testimony of two witnesses, one of them must be lying. The jury is to discover which version is more credible. The traditional wisdom is wrong. This article uses an actual criminal case to establish that a direct contradiction in testimony can arise from another source - a fundamental difference of conceptual frame. In this case, both witnesses were telling the truth as they knew it, but were talking past one another. Words that were 100% true in the victim's conceptual frame were …

The Punishment Of Dixie Shanahan: Is There Justice For Battered Women Who Kill?, Leigh Goodmark

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The article explores the prevailing theories justifying criminal punishment in the United States through the lens of the case of Dixie Shanahan, an Iowa woman who was sentenced to fifty years imprisonment for killing her abusive spouse after nineteen years of battering. The article begins with a detailed examination of the life of Dixie Shanahan and places her within the context of the literature on battered women who kill. The piece then looks at both retributivist and utilitarian justifications for punishment and concludes that only a retributivist rationale justifies the punishment of Ms. Shanahan and other battered women who kill, …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

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No abstract provided.

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

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The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

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The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

Paradoxes Of Health And Equality: When A Boy Becomes A Girl, Noa Ben-Asher

ExpressO

This paper is about an unusual child custody dispute between the parents of a six-year-old child and the child welfare services of Franklin County, Ohio. The conflict emerged when the child’s parents complied with their male child’s professed desire to be treated as a girl by attempting to enroll the child in the first grade as a girl. The paper treats this case as an exemplary test-case of contemporary co-dependence between scientific-medical discourse and liberal-rights discourse. The paper analyzes the positions of the two sides of the custody dispute according to the classic modern distinction between mind and body. On …

Textual Harassment: A New Historicist Reappraisal With Gender In Mind, Hila Keren

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No abstract provided.

Textual Harassment: A New Historicist Reappraisal, Hila Keren

ExpressO

This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.

Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual …