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Articles 1 - 10 of 10
Full-Text Articles in Legal History
The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii
The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii
All Faculty Scholarship
Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …
The Architecture Of Judicial Independence, Stephen B. Burbank
The Architecture Of Judicial Independence, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Natural Law And The Cultivation Of Legal Rhetoric, Francis J. Mootz Iii
Natural Law And The Cultivation Of Legal Rhetoric, Francis J. Mootz Iii
Scholarly Works
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," in a new …
Law In Flux: Philosophical Hermeneutics, Legal Argumentation And The Natural Law Tradition, Francis J. Mootz Iii
Law In Flux: Philosophical Hermeneutics, Legal Argumentation And The Natural Law Tradition, Francis J. Mootz Iii
Scholarly Works
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 …
Victims' Rights, Rule Of Law, And The Threat To Liberal Jurisprudence, Ahmed A. White
Victims' Rights, Rule Of Law, And The Threat To Liberal Jurisprudence, Ahmed A. White
Publications
No abstract provided.
Law As Language (Reviewing Peter M. Tiersma, Legal Language (1999)), Francis J. Mootz Iii
Law As Language (Reviewing Peter M. Tiersma, Legal Language (1999)), Francis J. Mootz Iii
Scholarly Works
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 social …
A Little Theory Is A Dangerous Thing: The Myth Of Adjudicative Retroactivity, Kermit Roosevelt Iii
A Little Theory Is A Dangerous Thing: The Myth Of Adjudicative Retroactivity, Kermit Roosevelt Iii
All Faculty Scholarship
The article analyzes the question of the retroactive effect of judicial decisions. It surveys the history of retroactivity doctrine to demonstrate that the current approach to retroactivity jurisprudence is a consequence of the Warren Court's adoption of the principle that parties should be governed by the law in effect at the time of their actions. This principle leads to a theoretical framework that suffers from serious difficulties. In particular, it is unable to distinguish between cases presented on direct and collateral review, and consequently unable to reach a satisfactory treatment of habeas petitions based on changes in law. The article …
Social Contract Theory In American Case Law, Anita L. Allen
Social Contract Theory In American Case Law, Anita L. Allen
All Faculty Scholarship
No abstract provided.
On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein
On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein
All Faculty Scholarship
No abstract provided.
The Cutting Edge Of Poster Law, Michael A. Heller
The Cutting Edge Of Poster Law, Michael A. Heller
Articles
Students place tens of thousands of posters around law schools each year in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go-and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?