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Full-Text Articles in Legal History

Creating Hammer V. Dagenhart, Logan E. Sawyer Iii Oct 2012

Creating Hammer V. Dagenhart, Logan E. Sawyer Iii

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Hammer v. Dagenhart is among the best known cases in the canon of constitutional law. It struck down the first federal child labor law on the grounds that Congress’s commerce power allowed it to prohibit the interstate shipment of harmful goods, like impure food and drugs, but not harmless goods, like the products of child labor. Withering criticism of the decision spread from Justice Holmes’s famous dissent to law reviews, treatises, casebooks, and constitutional law classes. For nearly a century the decision has been scorned as inconsistent with precedent, incoherent as policy, and driven solely by the Court ...


Justice John Paul Stevens, Originalist, Diane Marie Amann Jan 2012

Justice John Paul Stevens, Originalist, Diane Marie Amann

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Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as “practitioner of judicial restraint,” “legal realist,” “pragmatist,” or “originalist.” This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens’s jurisprudence paid heed to the fourth method, “originalism.” It looks in particular at Justice Stevens’s opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as ...


Samantar, Official Immunity And Federal Common Law, Peter B. Rutledge Oct 2011

Samantar, Official Immunity And Federal Common Law, Peter B. Rutledge

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This essay examines the theoretical underpinnings of the immunity of foreign government officials following the Supreme Court's recent decision in Samantar. Part of a forthcoming symposium with the Lewis and Clark Law Review, the paper tackles the federal common law in the Court's decision and, more broadly, international civil litigation. It criticizes the Court's unexamined assumption that its federal common law power extended to create an immunity that, at best, coexists only uncomfortably alongside the legislative framework of the FSIA. It explains the problematic implications of this assertion of federal common law, both for suits against foreign ...


Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Katherine R. Kruse Jan 2011

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Katherine R. Kruse

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The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws.


The Hermeneutical And Rhetorical Nature Of Law, Francis J. Mootz Iii Jan 2011

The Hermeneutical And Rhetorical Nature Of Law, Francis J. Mootz Iii

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In its most venal manifestation, scholarly writing betrays the anxiety of influence by claiming to offer a radically new solution to age-old conundrums. The goal is to make a clean break from a traditional path of thought that has become trapped in a cul-de-sac, to make progress by finding a new way forward. Not so with Jean Porter’s work, and particularly her most recent book. Professor Porter demonstrates that thinking through an established tradition – one that has responded to numerous challenges within very different contexts over several millennia – can sometimes offer the most productive response to contemporary dilemmas. She ...


The Jurisprudential Turn In Legal Ethics, Katherine R. Kruse Jan 2011

The Jurisprudential Turn In Legal Ethics, Katherine R. Kruse

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When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to ...


"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen Mar 2010

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

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References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really mean ...


Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii Jan 2010

Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii

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Chaim Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman’s argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled “Perelman’s Th eory of Argumentation as a Rejection of Natural Law.”

However, my thesis is precisely that Perelman’s theory of argumentation connects to the natural law tradition in ...


Ugly American Hermeneutics, Francis J. Mootz Iii Jan 2010

Ugly American Hermeneutics, Francis J. Mootz Iii

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This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.


Vico And Imagination: An Ingenious Approach To Educating Lawyers With Semiotic Sensibility, Francis J. Mootz Iii Jan 2009

Vico And Imagination: An Ingenious Approach To Educating Lawyers With Semiotic Sensibility, Francis J. Mootz Iii

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Law is a specialized semiotic realm, but lawyers generally are ignorant of this fact. Lawyers may manage meaning, but they also are managed by meaning. Seemingly trapped by the weight of pre-existing signs, their attempts to manage these meanings generally are limited to technical interventions and instrumentalist strategies. Signs have power over lawyers because they are embedded in narratives, a semiotic economy that confronts the lawyer as ‘‘given’’ even though it is dynamic and constantly under construction. Most lawyers do not make meaning through legal narratives; rather, they parrot bits of the controlling narratives in response to certain problems. Because ...


Perelman In Legal Education: Recalling The Rhetorical Tradition Of Isocrates And Vico, Francis J. Mootz Iii Jan 2008

Perelman In Legal Education: Recalling The Rhetorical Tradition Of Isocrates And Vico, Francis J. Mootz Iii

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This paper was presented on October 14, 2008 as part of a panel addressing "The Influence of Perelman in Legal Philosophy" at a conference hosted by the Perelman Center for the Philosophy of Law, Free University of Brussels.

I argue that Perelman's philosophy is connected with legal practice, but that he never made the connections between his philosophy and legal education explicit. I refer to the work of Isocrates and Vico, and conclude that Perelman's philosophy can teach us much about contemporary legal education as we strive to address the questions raised by the Carnegie Report.


Interpretation, Francis J. Mootz Iii Jan 2008

Interpretation, Francis J. Mootz Iii

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In this chapter from "Law and the Humanities: An Introduction," published by Cambridge University Press, I first survey various theoretical approaches to interpretation, including natural law, analytical legal positivism, law as communication (originalism, intentionalism, and new textualism), and the hermeneutical turn. I then discuss the role of interpretation in contract law, statutory law and constitutional law, to situate the theories in practice.


Responding To Nietzsche: The Constructive Power Of Destruktion, Francis J. Mootz Iii Jan 2007

Responding To Nietzsche: The Constructive Power Of Destruktion, Francis J. Mootz Iii

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As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer’s philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche’s caustic critical challenges, but that Gadamer’s hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche ...


Repraesentatio In Classical Latin, Alan Watson Jan 2006

Repraesentatio In Classical Latin, Alan Watson

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The Romans knew well the twin concepts of representation and representatives in law suits and in the relationships between father and son, and owner and slave. But for these concepts they did not use the terms repraesentare or any cognate.

To Tertullian, it seems, goes the credit of first using repraesentare and repraesentator in their modern senses of <> and <>. That his context is theological probably should not surprise since he is, above all, a theologian.

Thus he uses repraesentare to mean that the one larger and more important may represent the many and less important. This usage had a long ...


The Dictionary And The Man: Garner’S Black’S Law Dictionary, Jeanne Price, Roy M. Mersky Jan 2006

The Dictionary And The Man: Garner’S Black’S Law Dictionary, Jeanne Price, Roy M. Mersky

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The 7th and 8th editions of Black's Law Dictionary were the first edited by Bryan Garner. This review of the 8th edition of Black's Law Dictionary focuses on the approach taken by Garner in thoroughly revising the dictionary and places his work in the context of the recent history of legal dictionaries and lexicography.


Ricoeur’S Critical Hermeneutics And The Psychotherapeutic Model Of Critical Theory, Francis J. Mootz Iii Jan 2006

Ricoeur’S Critical Hermeneutics And The Psychotherapeutic Model Of Critical Theory, Francis J. Mootz Iii

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This paper seeks to extend Ricoeur’s acclaimed mediation of the Gadamer-Habermas debate. Freud’s psychoanalytic practice was an important touchstone for the debate, and Ricoeur’s reading of Freud provides a key to his critical intervention in the debate. The emerging postmodern account of psychotherapeutic practice provides a model of the critical hermeneutics that Ricoeur championed. Bringing Ricoeur’s insights to bear on this model, we can advance the questioning spurred by the Gadamer-Habermas debate without pretending to bring closure to the unending conversation of thinking.


Book Review Symposium: Introduction, Francis J. Mootz Iii Jan 2006

Book Review Symposium: Introduction, Francis J. Mootz Iii

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A foreword to a symposium held to discuss Gene Garver’s book, For the Sake of Argument: Practical Reasoning, Character and the Ethics of Belief (University of Chicago Press, 2004).


Judicial Discretion To Condition, Thomas O. Main Jan 2006

Judicial Discretion To Condition, Thomas O. Main

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No abstract provided.


Traditional Equity And Contemporary Procedure, Thomas O. Main Jan 2003

Traditional Equity And Contemporary Procedure, Thomas O. Main

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This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a ...


The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow Kleinhaus Jan 2001

The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow Kleinhaus

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No abstract provided.


The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii Jan 2000

The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii

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Critical theory has lost the self-assurance that defined the heady days of Marxist economics and Freudian psychoanalysis. In his famous debate with Hans-Georg Gadamer thirty years ago, Jürgen Habermas argued that critical theory was a necessary corrective to the quiescence and conventionalism that followed from Gadamer's hermeneutic perspective. As the 1960s unfolded, the second generation of the Frankfurt School appeared poised to bring sophisticated techniques of social criticism to bear on the emerging postindustrialist system of global capitalism. But the promise of critical theory failed to materialize. Today, Habermas plays the role of the aging lion who refuses to ...


Psychotherapeutic Practice As A Model For Postmodern Legal Theory, Francis J. Mootz Iii Jan 2000

Psychotherapeutic Practice As A Model For Postmodern Legal Theory, Francis J. Mootz Iii

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Critical legal theory is in need of reconstruction and rehabilitation. By most accounts, the goal of critical legal theory is to reveal the deep structure of the legal system that remains unrecognized in, and even obscured by, the self-understanding of legal actors. Scholars traditionally moved beyond the superficial level of legal doctrine either by adopting a rationalistic orientation and analyzing legal concepts or by adopting an empiricist orientation and analyzing the economic and sociological features of legal institutions. However, during the past thirty years there has been a tremendous diversification in these critical approaches. For example, the critical legal studies ...


Foreward, Symposium: Philosophical Hermeneutics And Critical Legal Theory, Francis J. Mootz Iii Jan 2000

Foreward, Symposium: Philosophical Hermeneutics And Critical Legal Theory, Francis J. Mootz Iii

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This Symposium brings the considerable talents of a diverse group of scholars to bear on a pressing problem in legal theory: Whether critical theory is possible after the hermeneutical turn. All too often, this problem is framed to invite an “either-or” response. Either we reject the hermeneutical turn and hew to a traditional account of critique anchored by an unimpeachable standard (whether economic, historical, conceptual, cognitive, or otherwise), or we take the hermeneutical turn by embracing radical historical contingency and fluidity, thereby forsaking the possibility of critique and surrendering to conservative conventionalism or inviting postmodern chaos. This Symposium challenges this ...


Law As Language (Reviewing Peter M. Tiersma, Legal Language (1999)), Francis J. Mootz Iii Jan 1999

Law As Language (Reviewing Peter M. Tiersma, Legal Language (1999)), Francis J. Mootz Iii

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The jacket of Professor Peter Tiersma’s book Legal Language illustrates the problem inherent in a linguistic study of legal language. The jacket features a legal document in fine print, with an overlay of a magnifying glass that brings some of the indecipherable words into focus. The problem, of course, is that a scholar conducting a linguistic study of language does not have access to a distinct "magnifying glass" that can posit language as an object; he can study language only with language.

Tiersma attempts to avoid the most difficult problems of self-reference that follow from the "interpretive turn" in ...


Natural Law And The Cultivation Of Legal Rhetoric, Francis J. Mootz Iii Jan 1999

Natural Law And The Cultivation Of Legal Rhetoric, Francis J. Mootz Iii

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This essay appeared in a book celebrating Lon Fuller's contributions to jurisprudence. In it, Professor Mootz argued that Fuller's conception of secular natural law, designated as an "internal morality of law," lends welcome assistance to the effort to articulate a new direction in legal philosophy. He defended Fuller's natural-law approach from the common misinterpretations that it is either a hollow echo of the natural law tradition or an essentialist conception of law at odds with the legal-realist world that he helped to create with his doctrinal scholarship. By reading his famous, "The Case of the Speluncean Explorers ...


Law In Flux: Philosophical Hermeneutics, Legal Argumentation And The Natural Law Tradition, Francis J. Mootz Iii Jan 1999

Law In Flux: Philosophical Hermeneutics, Legal Argumentation And The Natural Law Tradition, Francis J. Mootz Iii

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Peter Goodrich describes the plight of contemporary legal theory with concise accuracy: We have abandoned natural law foundations originally constructed in ecclesiastical venues only to find that the project of developing a secular legal language capable of transforming the management of social conflict into questions of technical rationality is doomed to failure. The ascendancy of analytic legal positivism has purchased conceptual rigor at the cost of separating the analysis of legal validity from moral acceptability, but retreat from this stale conceptualism and a return to traditional natural law precepts appears wildly implausible. The irrelevance of the natural law tradition in ...


Between Truth And Provocation: Reclaiming Reason In American Legal Scholarship, Francis J. Mootz Iii Jan 1998

Between Truth And Provocation: Reclaiming Reason In American Legal Scholarship, Francis J. Mootz Iii

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Truth has regained a strong voice in American legal scholarship. Like a groggy patient slowly emerging from a traumatic operation, legal theory is being coaxed back to consciousness by Dan Farber and Suzanna Sherry. They are fighting the debilitating illness of radical multiculturalism and its attendant relativism; they proclaim that the cure can be found in the power of truth, the force or reason, and the integrity of the word. Unfortunately, the patient is unlikely to recover while in the care of Farber and Sherry, even though their operation must be judged a success on its own terms. By equating ...


The New Legal Hermeneutics, Francis J. Mootz Iii Jan 1994

The New Legal Hermeneutics, Francis J. Mootz Iii

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Gregory Leyh has edited a volume of essays commissioned “to examine the intersections between contemporary legal theory and the foundations of interpretation” as explored in contemporary hermeneutics. The essays are diverse and multidisciplinary, but each sheds light on perplexing issues of legal interpretation that have exhausted commentators in recent years. The contributors share a broad agreement that we must reject the picture of law as an autonomous, insulated discourse and instead must regard legal discourse as one of many interrelated practices rooted in our character as interpretive beings.

Each contributor addressees the central concerns defined by the leading philosopher of ...


Rethinking The Rule Of Law: A Demonstration That The Obvious Is Plausible, Francis J. Mootz Iii Jan 1993

Rethinking The Rule Of Law: A Demonstration That The Obvious Is Plausible, Francis J. Mootz Iii

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In this Article, I defend the Rule of Law from its detractors in the academy by uncovering and criticizing the unsound presuppositions driving their critiques. I acknowledge that these critiques raise two different problems for those who defend the plausibility of the Rule of Law: The problem of ensuring legal innovation and the problem of supplying effective constraint. In response to these problems, I locate our faith in the Rule of Law in the hermeneutical practice in which we are engaged as lawyers. Jurisprudential characterizations of the problems of constraint and innovation are misguided reactions to the narrow Enlightenment conception ...


Is The Rule Of Law Possible In A Postmodern World?, Francis J. Mootz Iii Jan 1993

Is The Rule Of Law Possible In A Postmodern World?, Francis J. Mootz Iii

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The Rule of Law is the core of our political and legal ideology, but the Rule of Law increasingly is attacked as an unattainable goal. Postmodern theorists challenge whether it makes sense to believe that rules can be formulated for general application and then later neutrally applied by decision makers. Postmodern theorists reject the Enlightenment world view and its political corollary, classical liberalism. The author agrees with the spirit of the postmodern critique, but argues that we can understand the Rule of Law in a manner consonant with postmodern thought. Drawing on the Continental tradition of hermeneutics, or the philosophy ...