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Articles 1 - 15 of 15

Full-Text Articles in Legal History

Two Dogmas Of Originalism, Ian Bartrum Jan 2015

Two Dogmas Of Originalism, Ian Bartrum

Washington University Jurisprudence Review

In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics.” Quine demonstrated that the positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the ...


Toward A Jurisprudence Of Social Values, Richard K. Greenstein Jan 2015

Toward A Jurisprudence Of Social Values, Richard K. Greenstein

Washington University Jurisprudence Review

Legal theory wrestles perennially with a variety of seemingly intractable problems. I include among them questions about what we are doing when we interpret legal texts, the distinctions between hard and easy cases and between rules and standards, and the meaning of the rule of law. I argue in this essay that we can, in fact, make substantial progress toward clarifying these problems and making them much more intelligible by keeping in mind the role that social values play in law. And that role is fundamental: social values constitute the law.

Part I sketches a jurisprudential framework for thinking about ...


On The Conceptual Confusions Of Jurisprudence, Aaron J. Rappaport Nov 2014

On The Conceptual Confusions Of Jurisprudence, Aaron J. Rappaport

Washington University Jurisprudence Review

No abstract provided.


Bringing Guns To A Gun Fight: Why The Adversarial System Is Best Served By A Policy Compelling Attorneys To Ethically Mine For Metadata, Justin Fong Nov 2014

Bringing Guns To A Gun Fight: Why The Adversarial System Is Best Served By A Policy Compelling Attorneys To Ethically Mine For Metadata, Justin Fong

Washington University Jurisprudence Review

No abstract provided.


Ethos, Pathos, And Logos: The Benefits Of Aristotelian Rhetoric In The Courtroom, Krista C. Mccormack Nov 2014

Ethos, Pathos, And Logos: The Benefits Of Aristotelian Rhetoric In The Courtroom, Krista C. Mccormack

Washington University Jurisprudence Review

No abstract provided.


Reconstructing Constitutional Punishment, Paulo Barrozo Jan 2014

Reconstructing Constitutional Punishment, Paulo Barrozo

Washington University Jurisprudence Review

Constitutional orders punish—and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political theories ...


Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser Jan 2014

Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser

Washington University Jurisprudence Review

No abstract provided.


Holding The Bench Accountable: Judges Qua Representatives, John L. Warren Iii Jan 2014

Holding The Bench Accountable: Judges Qua Representatives, John L. Warren Iii

Washington University Jurisprudence Review

No abstract provided.


Natural Law And Bona Fide Discrimination: The Evolving Understanding Of Sex, Gender, And Transgender Identity In Employment, Kylie Byron Jan 2014

Natural Law And Bona Fide Discrimination: The Evolving Understanding Of Sex, Gender, And Transgender Identity In Employment, Kylie Byron

Washington University Jurisprudence Review

No abstract provided.


Reasonable Rage: The Problem With Stereotypes In Provocation Cases, Nicole A.K. Matlock Jan 2014

Reasonable Rage: The Problem With Stereotypes In Provocation Cases, Nicole A.K. Matlock

Washington University Jurisprudence Review

No abstract provided.


Confined To A Narrative: Approaching Rape Shield Laws Through Legal Narratology, Kathryn C. Swiss Jan 2014

Confined To A Narrative: Approaching Rape Shield Laws Through Legal Narratology, Kathryn C. Swiss

Washington University Jurisprudence Review

No abstract provided.


An Argument For Incentivizing Voluntary Regulation Of The Fashion And Modeling Industries, Allison Clyne Tschannen Jan 2014

An Argument For Incentivizing Voluntary Regulation Of The Fashion And Modeling Industries, Allison Clyne Tschannen

Washington University Jurisprudence Review

No abstract provided.


Ten Years Of Trial Proceedings At The International Criminal Court, Joyce Aluoch Jan 2013

Ten Years Of Trial Proceedings At The International Criminal Court, Joyce Aluoch

Washington University Global Studies Law Review

My remarks will address trial proceedings before the International Criminal Court (“ICC”) and the early jurisprudence of the ICC’s Trial Chambers. As an introduction, this part will outline the steps involved in preparing and conducting a trial at the ICC and describe some of the more notable procedural developments in the Institution’s first trials. The article will then discuss some of the biggest achievements and challenges in the ICC’s first ten years of existence, giving particular attention to issues related to the fairness and expeditiousness of the proceedings and the recently completed case of The Prosecutor v ...


Jurisprudence Between Science And The Humanities, Dan Priel Jan 2012

Jurisprudence Between Science And The Humanities, Dan Priel

Washington University Jurisprudence Review

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this Article I examine the place of science in relation to legal positivism. I argue that, historically, legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science: they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that since around 1960 jurisprudence, and legal positivism in particular, has undergone ...


The New Legal Process: Games People Play And The Quest For Legitimate Judicial Decision Making, Ronald J. Krotoszynski Jr. Jan 1999

The New Legal Process: Games People Play And The Quest For Legitimate Judicial Decision Making, Ronald J. Krotoszynski Jr.

Washington University Law Review

In this Article, I will argue in favor of a new legal process jurisprudence, analogizing the legitimacy of such an approach to the process theory that undergirds the legitimacy of contemporary athletics. In Part I, the Article describes the balkanization of contemporary jurisprudence into increasingly specialized sects. Part II examines the importance of process to contemporary athletic contests and explores the relationship of process to the legitimacy of the outcomes in those contests. In Part III, the Article completes the circle by arguing that the legitimizing effect of process plainly manifested in the context of athletics, whether at the little ...