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Articles 1 - 17 of 17
Full-Text Articles in Legal History
The Legacy Of Ronald Dworkin (1931-2013): A Legal Theory And Methodology For Hedgehogs, Hercules, And One Right Answers, Imer Flores
Georgetown Law Faculty Publications and Other Works
In this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions and distinctions between jurisprudence, legal philosophy (or philosophy of law) and legal theory (or theory of law), on the …
La Rebeldía De J.Waldron: ¿Es Democrático El Control Judicial Constitucional?, Joshimar De La Cruz Aroni
La Rebeldía De J.Waldron: ¿Es Democrático El Control Judicial Constitucional?, Joshimar De La Cruz Aroni
Joshimar De la cruz Aroni
Constitutional Law
Closing The Doors To Justice: A Critique Of Pimentel V. Dreyfus And The Application Of Legal Formalism To The Elimination Of Food Assistance Benefits For Legal Immigrants, Hannah Zommick
Seattle University Law Review
This Comment contends that the Ninth Circuit’s opinion in Pimentel v. Dreyfus employed a legal formalist approach and that by applying this framework, the court prevented legal immigrants, who were caught between the strict eligibility restrictions of welfare reform, from asserting their rights through the justice system. The legal formalist approach “treats the law as a set of scientific formulae or principles that are derived from the study of case law. These principles create an internal analytical framework which, when applied to a set of facts, leads the decision maker, through logical deduction, to the correct outcome in a case.” …
Ser Y Tiempo Jurídicos (Juridical Being And Time), Juan Carlos Riofrío Martínez-Villalba
Ser Y Tiempo Jurídicos (Juridical Being And Time), Juan Carlos Riofrío Martínez-Villalba
Juan Carlos Riofrío Martínez-Villalba
El estudio contiene una profundización metafísica del análisis de la dinámica jurídica. Para explicarla se aplican los poderosos conceptos griegos de ser y potencia, con los que los antiguos pudieron resolver el problema del tiempo y del cambio cósmico. Por eso el artículo comienza modulando para el derecho estas nociones griegas, de los cuales resultan los conceptos metafísicos de “ser jurídico” y “potencia jurídica”, para luego arribar al concepto de “espacio jurídico”. Con esta triada de nociones se puede, entonces, resolver el tema del cambio y el tiempo jurídico, como se hace al final del trabajo.
This article contains a …
Twenty-One Theses On The Legal Legacy Of The French Revolution In Latin America, Dante Figueroa
Twenty-One Theses On The Legal Legacy Of The French Revolution In Latin America, Dante Figueroa
Georgia Journal of International & Comparative Law
No abstract provided.
The Improbability Of Positivism, Andrew Tutt
The Improbability Of Positivism, Andrew Tutt
Pace Law Review
Ronald Dworkin’s contributions to legal philosophy have been subject to severe criticism in recent years. Other legal philosophers call his arguments “deflected or discredited,” laced with “philosophical confusions,” and “deeply embedded” mistakes. As Brian Leiter writes, “[t]he only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path . . . .”
This Article endeavors to show that, far from an effort beset with primitive errors, Dworkin’s challenge to legal positivism in the opening pages of his seminal work was neither misguided nor trivial. Rather, Dworkin’s …
Epistemologies Of The South And Human Rights: Santos And The Quest For Global And Cognitive Justice, Jose-Manuel Barreto
Epistemologies Of The South And Human Rights: Santos And The Quest For Global And Cognitive Justice, Jose-Manuel Barreto
Indiana Journal of Global Legal Studies
This article offers an introduction to Boaventura de Sousa Santos's general philosophical orientation, explores the concepts of "abyssal thinking" and "epistemologies of the South," and draws consequences for the theory of human rights, taking into consideration the idea of rewriting the history of rights in the context of colonialism and Santos's proposal of a post-abyssal conception of rights and intercultural dialogue. This piece ends with some considerations on the cultural and political conditions for advancing a new understanding of human rights.
The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner
The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner
Georgia State University Law Review
This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.
By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …
Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White, Brad Snyder
Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White, Brad Snyder
Chicago-Kent Law Review
My contribution to this tribute places Bill Nelson’s scholarship about Judge Edward Weinfeld and Justice Byron White within several contexts. It is a personal history of Nelson the law student, law clerk, and young scholar; an intellectual history of legal theory since the 1960s; an examination of the influence of legal theory on Nelson’s scholarship based on his writings about Weinfeld and White; and an example of how legal historians contend with the subject of judicial reputation. Nelson was one of many former Warren Court and Burger Court clerks who joined the professoriate and rejected the legal process theory that …
Reconstructing The Limits Of Schmitt’S Theory Of Sovereignty: A Case For Law As Rhetoric, Not As Political Theology, Brook Thomas
Reconstructing The Limits Of Schmitt’S Theory Of Sovereignty: A Case For Law As Rhetoric, Not As Political Theology, Brook Thomas
UC Irvine Law Review
No abstract provided.
Mannheim’S Pendulum: Refiguring Legal Cosmopolitanism, Thomas Kemple
Mannheim’S Pendulum: Refiguring Legal Cosmopolitanism, Thomas Kemple
UC Irvine Law Review
No abstract provided.
Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen
Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen
Book Chapters
If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through …
Rebooting The Discourse On Causation In Criminal Law: A Pragmatic (And Imperfect) Approach, Michele C. Materni
Rebooting The Discourse On Causation In Criminal Law: A Pragmatic (And Imperfect) Approach, Michele C. Materni
Mike C Materni
Causation in the criminal law is an extremely complex issue for several reasons. Prime among those reasons is the fact that most scholars who have tackled the issue have done so by searching for a universal, comprehensive solution. This Article starts from the premise that such a solution is unattainable. Rather than embarking in extravagant philosophical inquiries, the Article offers a pragmatic solution to the issue of causation in the criminal law. Applying a methodology that finds validation in the philosophy of science, the Article argues that causation in the criminal law should be constructed in functional terms. Linking the …
Law And Artifice In Blackstone's Commentaries, Jessie Allen
Law And Artifice In Blackstone's Commentaries, Jessie Allen
Articles
William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is …
Why Restate The Bundle? The Disintegration Of The Restatement Of Property, Thomas W. Merrill, Henry E. Smith
Why Restate The Bundle? The Disintegration Of The Restatement Of Property, Thomas W. Merrill, Henry E. Smith
Faculty Scholarship
The American Law Institute (ALI) has devoted a great deal of time and energy to restating the law of property. To date, the ALI has produced 17 volumes that bear the name First, Second, or Third Restatement of Property. There is unquestionably much that is valuable in these materials. On the whole, however, the effort has been a disappointment. Some volumes seek faithfully to restate the consensus view of the law; others are transparently devoted to law reform. The ratio of reform to restatement has increased over time, to the point where significant portions of the Third Restatement …
Entender Los Males Económicos Modernos A La Luz De La Doctrina Social Católica, Brian M. Mccall
Entender Los Males Económicos Modernos A La Luz De La Doctrina Social Católica, Brian M. Mccall
Brian M McCall
In a general sense, St. Thomas Aquinas predicted the paralysis and chaos of the financial and economic systems in America and Europe which occurred in 2008, when he predicted that in a society where unjust exchanges dominate, eventually all exchanges will cease. St. Thomas also points out that although human law cannot prohibit all injustice, society cannot escape the consequences of transgressing the divine law which leaves “nothing unpunished.” Thus, at least part of the explanation for that crisis whose effects remain with us today lies in continuous violations of natural justice by our economic system. Neither one product nor …
Entender Los Males Economómicos Modernos A La Luz De La Doctrina Social Cátolica (Understanding Modern Economic Woes In Light Of Catholic Social Doctrine), Brian M. Mccall
Brian M McCall
En sentido general, Santo Tomás Aquino predijo la parálisis y el caos del sistema financiero económico en Estados Unidos y Europa que ocurrió en 2008, cuando predijo que en una sociedad donde los intercambios injustos dominan, eventualmente todos los intercambios podrán cesar. Santo Tomás también señala que aunque la ley humana no pueda prohibir todas las injusticias, la sociedad no puede escapar de las consecuencias de trasgredir la ley divina que no deja nada en la impunidad. Así, al menos una parte de la explicación para esta crisis cuyos efectos permanecen con nosotros en la actualidad se encuentra en las …