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Articles 91 - 120 of 158
Full-Text Articles in Legal History
An Overview Of The Scholarship In Law And Religion Of Judge John T. Noonan, Jr., Robert E. Rodes
An Overview Of The Scholarship In Law And Religion Of Judge John T. Noonan, Jr., Robert E. Rodes
Journal Articles
I first met John Noonan at a Law Review dinner when I was a year or so out of law school and he was a third year student. Chance placed us at the same table, and the conversation-naturally-proved to be more interesting than the speeches.
I am honored, indeed, blessed, to have been exposed to that witness for so many decades, and deeply grateful for the opportunity to come here on this occasion and bear my own witness in return.
The New Natural Law Theory: A Reply To Jean Porter, Gerard V. Bradley, Robert George
The New Natural Law Theory: A Reply To Jean Porter, Gerard V. Bradley, Robert George
Journal Articles
The theory of practical reasoning and morality proposed by Germain Grisez, and developed by him in frequent collaboration with John Finnis and Joseph Boyle, is the most formidable presentation of natural law theory in this century. Although work by Finnis and others has brought this "new natural law theory" (NNLT) to the attention of secular philosophers, the theory is of particular interest to Catholic moralists. This is because NNLT provides resources for a fresh defense of traditional moral norms, including those forbidding abortion, euthanasia, and other forms of "direct" killing, as well as sexual immoralities such as fornication, sodomy, and …
Response To Hittinger, Gerard V. Bradley
Liberalism And Natural Law Theory, John M. Finnis
Liberalism And Natural Law Theory, John M. Finnis
Journal Articles
I shall argue, in the course of this lecture, that the title I gave myself is a bad one, one that sets a bad example. "Liberalism," like "conservatism" and "socialism," is too local, contingent and shifting a term to deserve a place in a general theory of society, politics, government and law. So I had better say at once which proposition or set of propositions I, on this occasion, was gesturing towards with the word "liberalism," out of all the many propositions, often conflicting, which have been called "liberal." What I had in mind was the thesis that government and …
A Process Theory Of Torts, Jay Tidmarsh
A Process Theory Of Torts, Jay Tidmarsh
Journal Articles
This article is meant to reconcile two schools of intellectual thought regarding tort law, the conceptualist and the anti-conceptualist. It argues that torts must be understood as a system in perpetual process--forever indefinite and infinitely malleable in its precise theoretical, doctrinal and practical manifestations--yet ultimately bounded in its possibilities. It then defines the limits of torts law as a process that constantly regenerates the old face of tort theory, doctrine and practice into the new.
Listening For The Future In The Voices Of The Past: John T. Noonan, Jr. On Love And Power In Human History, M. Cathleen Kaveny
Listening For The Future In The Voices Of The Past: John T. Noonan, Jr. On Love And Power In Human History, M. Cathleen Kaveny
Journal Articles
A discussion of works on moral theology and canon law by Judge John T. Noonan Jr. (1926-2017) from the 1950s to the 1980s, which deal with the subjects of usury, contraception, marriage, slavery, bribery and religious liberty. Its focus is on Noonan’s normative commitments regarding epistemology, theological anthropology and the relation of love, justice and law. The article argues that Noonan was influenced by three core ideas, an epistemological view that moral knowledge is sought after and articulated in particular times and places, an anthropological view that argues the study of ethics, law, and theology must sensitively discern the core …
"Mastering The Lawless Science Of Our Law": A Story Of Legal Citation Indexes, Patti J. Ogden
"Mastering The Lawless Science Of Our Law": A Story Of Legal Citation Indexes, Patti J. Ogden
Journal Articles
Ms. Ogden presents a history of American legal citation indexes, covering early nineteenth-century attempts, the development of modern citator systems by Frank Shepard and others, online citation systems, and the potential for future improvements in an essential tool of legal research.
The Colonial Origins Of Liberal Property Rights, Elizabeth B. Mensch
The Colonial Origins Of Liberal Property Rights, Elizabeth B. Mensch
Journal Articles
No abstract provided.
Proof In Law And Science, David H. Kaye
Proof In Law And Science, David H. Kaye
Journal Articles
This article addresses proof in both science and law. Both disciplines utilize proof of facts and proof of theories, but for different purposes and, consequently, in different ways. Some similarities exist, however, in how both disciplines use a series of premises followed by a conclusion to form an argument, and thus constitute a logic. This article analyzes the ways in which legal logic and scientific logic differ. Finding facts in law involves the same logic but quite different procedures than scientific fact-finding. Finding, or rather constructing, the law is also very different from scientific theorizing. But such differences do not …
Presenting Expert Testimony, James H. Seckinger
Presenting Expert Testimony, James H. Seckinger
Journal Articles
Mindful that the readers of this Commentary include both experienced advocates as well as lawyers embarking on new careers in the courtroom, this author has divided the Commentary into two parts. The first part considers the seven touchstones for a persuasive direct examination of an expert witness. This discussion should be useful for the experienced and inexperienced advocate alike. The second part of the paper is intended as a primer on practical matters surrounding the selection, preparation, and presentation of an expert as a witness at trial. Experienced advocates may find in these pages confirmation of their practice concerning the …
Natural Law And Legal Reasoning, John M. Finnis
Natural Law And Legal Reasoning, John M. Finnis
Journal Articles
Much academic theory about legal reasoning greatly exaggerates the extent to which reason can settle what is greater good or lesser evil, and minimizes the need for authoritative sources which, so far as they are clear and respect the few absolute moral rights and duties, are to be respected as the only rational basis for judicial reasoning and decision, in relation to the countless issues which do not directly involve those absolute rights and duties. A natural law theory in the classical tradition makes no pretense that natural reason can determine the one right answer to those countless questions which …
Concluding Reflections, John M. Finnis
Concluding Reflections, John M. Finnis
Journal Articles
A symposium to which one person contributes three extended papers is no unmixed pleasure for readers. This third contribution of mine will interest only those curious to see my response to other symposiasts' comments on my earlier efforts (in the symposium and elsewhere). To enable this curiosity to be satisfied as costlessly as possible, I divide these concluding reflections by authors rather than themes, though with priorities suggested by themes rather than authors.
Property And Suffrage In The Early American Republic, Robert J. Steinfeld
Property And Suffrage In The Early American Republic, Robert J. Steinfeld
Journal Articles
No abstract provided.
Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice
Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice
Journal Articles
The growing influence of utilitarianism and legal positivism in American jurisprudence today and the decline of natural law have produced an ominous shift in the foundation of our legal system. This shift is illustrated by various courts' approaches to momentous legal issues of the Twentieth Century such as abortion and euthanasia. Ultimately, legal positivism is unacceptable as a jurisprudential framework because it provides no inherent limits on the power of the state and no basis for determining what is just. In contrast, the natural law provides a jurisprudential framework that both guides and limits the civil law. It therefore is …
Secular Cases In The Church Courts: A Historical Survey, Robert E. Rodes
Secular Cases In The Church Courts: A Historical Survey, Robert E. Rodes
Journal Articles
When students of legal history think of church courts, they may conjure up thoughts of some odd and obsolete tribunal about which Dickens wrote, while students of popular history may think of the people who burned Joan of Arc. In contrast, when Roman Catholics think of Church courts, they may think of tribunals which do no more than grant marriage annulments, while American Protestants may think of nothing at all. Church courts encompass the whole range of institutions used by different churches, including Jewish communities, for authoritative intervention into affairs of individual church members. Institutions of this kind have had …
The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley
The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley
Journal Articles
This Article will, in large part, present its thesis regarding fourth amendment doctrine by employing, as an illustration, a recent application of the current approach by the Seventh Circuit Court of Appeals. In United States v. Torres, the Seventh Circuit held video surveillance constitutional and further found that the judiciary had the authority to issue warrants for such a technique. Although welcomed by prosecutors and law enforcement officials, this decision highlights the absurdity of the current interpretation of the reasonableness clause. Moreover, Torres provides a vehicle through which this Article's historical interpretation can be brought into focus under the cold …
The Line Between History And Casenote, John Henry Schlegel
The Line Between History And Casenote, John Henry Schlegel
Journal Articles
No abstract provided.
Religion, Revival, And The Ruling Class: A Critical History Of Trinity Church, Elizabeth B. Mensch
Religion, Revival, And The Ruling Class: A Critical History Of Trinity Church, Elizabeth B. Mensch
Journal Articles
No abstract provided.
Law And The Experience Of Politics In Late Eighteenth-Century North Carolina: North Carolina Considers The Constitution, Walter F. Pratt
Law And The Experience Of Politics In Late Eighteenth-Century North Carolina: North Carolina Considers The Constitution, Walter F. Pratt
Journal Articles
In 1788, delegates assembled in North Carolina to decide whether to ratify the Constitution. A debate erupted between Federalists and Anti-federalists regarding each Article of the then-drafted Constitution. This Article analyzes the debate, and proposes that the key difference was the function of the role of the law.
Legal Enforcement Of "Duties To Oneself": Kant Vs. Neo-Kantians, John M. Finnis
Legal Enforcement Of "Duties To Oneself": Kant Vs. Neo-Kantians, John M. Finnis
Journal Articles
This Article considers writings by modern scholars including Rawls, Dworkin, and D.A.J. Richards on the topic of Kant's discussion of the neutrality principle and the harm principle.
Practical Principles, Moral Truth, And Ultimate Ends, John M. Finnis, Germain Grisez, Joseph Boyle
Practical Principles, Moral Truth, And Ultimate Ends, John M. Finnis, Germain Grisez, Joseph Boyle
Journal Articles
The natural-law theory on which we have been working during the past twenty-five years has stimulated many critical responses. We have restated the theory in various works, not always calling attention to developments. This paper reformulates some parts of the theory, taking into account the criticisms of which we are aware.
Levinson Builds The Kingdom: Comment On "Professing Law", Thomas L. Shaffer
Levinson Builds The Kingdom: Comment On "Professing Law", Thomas L. Shaffer
Journal Articles
This Article takes the perspective that the professed law is an idol. As such, it is false worship, which is led by false priests, and is rationalized by false prophets. Professor Shaffer proposes that those who believe in the will of God are presented with two tasks. First, one must tear down this idol, and secondly, one must then build the Kingdom. He focuses his discussion on how one can build the Kingdom, and examines the viability of a Kingdom built upon constitutionalism, citizenship, and community.
The "Natural Law Tradition", John M. Finnis
The "Natural Law Tradition", John M. Finnis
Journal Articles
This "tradition of natural law theory" has three main features: First, critique and rejection of ethical scepticism, dogmatism and conventionalism; Second, clarification of the methodology of descriptive and explanatory social theories (e.g., political science, economics, jurisprudence .... ); Third, critique and rejection of aggregative conceptions of the right and the just (e.g., consequentialism, utilitarianism, wealth-maximization, "proportionalism"...).
Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley
Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley
Journal Articles
Our Framers through the Establishment Clause sought to prevent the government from preferring one religious sect to another. However, the Supreme Court in Everson v. Board of Education abandoned that meaning of nonestablishment and created a general prohibition on all nondiscriminatory aid to religion, a decision later reinforced in Lemon v. Kurtzman. This Article discusses the Founder’s worldview and looks at other Establishment Clause cases to illustrate that the historical evidence is inconsistent with Everson. Rather, the founders intended to assure that religion would be aided only on a nondiscriminatory, or sect-neutral, basis and does not stand for …
Discretion In Making Legal Decisions: A Frances Lewis Law Center Colloquium, Thomas L. Shaffer
Discretion In Making Legal Decisions: A Frances Lewis Law Center Colloquium, Thomas L. Shaffer
Journal Articles
Colloquium papers, pp. 1161-1311, edited by Professor Shaffer.
Gaming, Lotteries, And Wagering: The Pre-Revolutionary Roots Of The Law Of Gambling, G. Robert Blakey
Gaming, Lotteries, And Wagering: The Pre-Revolutionary Roots Of The Law Of Gambling, G. Robert Blakey
Journal Articles
Over the last several decades, there has been an increasing trend to move away from general prohibition against gambling and to move towards legalizing various forms of gambling. This Article traces the pre-revolutionary roots concerning the law of gambling and breaks the discussion into three types: gaming, lotteries, and wagering. In particular, the discussion focuses on the law and practice of the English prior to 1776 and the law and practice of the Early Colonial Period from 1929-1776. The Author proposes that an understanding of the past is needed in order to reform the law of gambling without succumbing to …
On 'Positivism' And 'Legal Rational Authority', John M. Finnis
On 'Positivism' And 'Legal Rational Authority', John M. Finnis
Journal Articles
This Article critiques Anthony Kronman’s book Max Weber, which provides an interpretation of Weber’s social theory of law concerning positivism and legal rational authority. In particular, the three premises of Kronman’s thesis regarding social theory are considered and their weaknesses are explained. Through this critique, the Author argues that no good reason has been presented to accept that Weber’s positivist theory is of value.
Notes Toward An Intimate, Opinionated, And Affectionate History Of The Conference On Critical Legal Studies, John Henry Schlegel
Notes Toward An Intimate, Opinionated, And Affectionate History Of The Conference On Critical Legal Studies, John Henry Schlegel
Journal Articles
No abstract provided.
Mirror, Mirror On The Wall: Histories Of American Law Schools, Alfred S. Konefsky, John Henry Schlegel
Mirror, Mirror On The Wall: Histories Of American Law Schools, Alfred S. Konefsky, John Henry Schlegel
Journal Articles
No abstract provided.
David Hoffman's Law School Lectures, 1822-1833, Thomas L. Shaffer
David Hoffman's Law School Lectures, 1822-1833, Thomas L. Shaffer
Journal Articles
The Baltimore lawyer and teacher David Hoffman (1784-1854), the father of American legal ethics, was also the first of the systematic American legal educators. He held one of the first appointments in this country as a university law professor (at the University of Maryland, 1814-43) and wrote the first American outline of the study of law. Joseph Story, in a contemporary review of the 1817 Course, called Hoffman's work "an honour to our country[,] . . . by far the most perfect system for the study of the law that has ever been offered to the public. " Chancellor James …