Open Access. Powered by Scholars. Published by Universities.®

Social and Behavioral Sciences Commons

Open Access. Powered by Scholars. Published by Universities.®

Law

Legal Theory

Institution
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 41

Full-Text Articles in Social and Behavioral Sciences

Speaking Volumes: The Failure Of American Courts To Address The Underlying Themes Of Silence And Patriarchy Within The Civil Order Of Protection Process In Davenport, Iowa, Catherine Priebe Jun 2020

Speaking Volumes: The Failure Of American Courts To Address The Underlying Themes Of Silence And Patriarchy Within The Civil Order Of Protection Process In Davenport, Iowa, Catherine Priebe

Sociology: Student Scholarship & Creative Works

Domestic abuse is a pervasive issue within the United States. Approximately three women will be murdered by an intimate partner every day and around half of all women will experience psychological abuse by an intimate partner in their lifetime. As such, it is important to have legal avenues that survivors can pursue in order to ensure safety for themselves and their children. There are many obstacles to obtaining a civil order of protection despite it being the most common legal option survivors choose to pursue. Survivors must take on the burden of proof and hire their own attorney if they ...


The Perfect Opinion, Andrew Jensen Kerr Jan 2020

The Perfect Opinion, Andrew Jensen Kerr

Washington University Jurisprudence Review

In my Article, "The Perfect Opinion," I collate favorite judicial opinions to inductively derive an archetype of perfection. The question of which opinions we like the most is decidedly subjective, but it also reveals implied preferences for creative judging that might not register on citation counts or be prioritized when editing casebooks. Importantly, our choice of a favorite reflects something about us. So why do judges often select non-authoritative opinions (alternative concurrences or dissents) or no- citation opinions (that don’t cite to prior case law) when asked of their favorite opinion? We might predict that most judges would select ...


Paternalism As A Justification For Federally Regulating Advertising E-Cigarettes To Children, Alyssa N. Sheets Jan 2020

Paternalism As A Justification For Federally Regulating Advertising E-Cigarettes To Children, Alyssa N. Sheets

Washington University Jurisprudence Review

How the federal government should regulate e-cigarette advertising targeted towards children generates unique jurisprudential questions regarding the potential for infringement on children’s liberty and autonomy. While it would seem unethical to restrict e-cigarette advertisements to adults, children are in a different category because they lack the maturity and decision-making skills to discern advertising falsehoods from reality. This is especially problematic with e-cigarette advertisements because long-term public health outcomes for children are at stake. This Note assesses the historical and modern regulatory measures used by Congress, the FDA, and the judiciary to regulate how the tobacco industry may advertise to ...


Corporate Rights And Moral Theory: The Need For A Coherent Theoretical Justification Of Corporate Rights, Ryne T. Duffy Jan 2020

Corporate Rights And Moral Theory: The Need For A Coherent Theoretical Justification Of Corporate Rights, Ryne T. Duffy

Washington University Jurisprudence Review

Corporations are the primary engine of economic activity in the United States and they are provided with legal rights primarily to facilitate their productive activity. As economic actors, corporations must inevitably interact with other corporations and natural persons within the legal system. Corporations must be allowed to invoke legal rights in order to operate within the American legal system. Traditionally, the American legal system has classified corporations as legal “persons” to allow them to seamlessly integrate into the existing legal system. This Note tackles the question of corporate personhood utilizing an approach inspired by social contract theory and seeks to ...


Another Quest For The Holy Grail Of Law: Ius Generis - Law As A Countermovement To Human Cognition, Norbert Altvater Jan 2020

Another Quest For The Holy Grail Of Law: Ius Generis - Law As A Countermovement To Human Cognition, Norbert Altvater

Washington University Jurisprudence Review

In hopes of providing some possible further insight into the nature of law in all contexts, this Article contributes another layer to the discussion respecting an evolutionary ontology of law. It advances a preliminary sketch of the possible genesis of norms as a countermovement to human cognition, with law, as a type of norms thereby integrally interwoven into humanity itself. With this understanding of its origins, law, whether considered from the positive law, natural law or systems theory perspective, may be understood more clearly and its applications perhaps anticipated. This Article analyzes whether this proposed countermovement theory might provide common ...


My Genetic Child May Not Be My Legal Child? A Functionalist Perspective On The Need For Surrogacy Equality In The United States, Rachel I. Gewurz Jan 2020

My Genetic Child May Not Be My Legal Child? A Functionalist Perspective On The Need For Surrogacy Equality In The United States, Rachel I. Gewurz

Washington University Jurisprudence Review

While assisted reproductive technology, and surrogacy in particular, may appear to be a straightforward solution to infertility, the legal field is extremely complex. The patchwork of laws across the United States leaves intended parents at risk for a court to deny legal rights to their biological child. This Note will examine the complexities of surrogacy agreements and the need for a federal, uniform surrogacy law under the sociological functionalist theory of society.


Keeping Faith With Nomos, Steven L. Winter Jan 2020

Keeping Faith With Nomos, Steven L. Winter

Touro Law Review

No abstract provided.


Shared Deliberations: Learning From The Voices Of Social Justice Lawyers On Their Aspirations, Challenges And Roles, Ian Head Feb 2019

Shared Deliberations: Learning From The Voices Of Social Justice Lawyers On Their Aspirations, Challenges And Roles, Ian Head

Dissertations, Theses, and Capstone Projects

Lawyers in the U.S. who attempt to advocate for social justice issues, often on behalf of those communities most targeted by government institutions and oppressive legal systems, have unique perspectives into the challenges of using the law to create transformative change. This thesis examines the voices of over a dozen attorneys fighting not only on behalf of their clients, but also wrestling with how to best use a set of legal tools not meant for dismantling systems of power. Listening to how these legal advocates navigate their roles inside a system of laws created to consolidate rather than distribute ...


Do Criminal Minds Cause Crime? Neuroscience And The Physicalism Dilemma, John A. Humbach Jan 2019

Do Criminal Minds Cause Crime? Neuroscience And The Physicalism Dilemma, John A. Humbach

Washington University Jurisprudence Review

The idea that mental states cause actions is a basic premise of criminal law. Blame and responsibility presuppose that criminal acts are products of the defendant’s mind. Yet, the assumption that mental causation exists is at odds with physicalism, the widely shared worldview that “everything is physical.” Outside of law, there is probably no field of secular study in which one can seriously assert that unseen nonmaterial forces can cause physical events. But if physicalism is true then a fundamental premise of modern criminal justice must be false, namely, that criminals deserve punishment because their crimes are the products ...


Criminalization: A Kantian View, Jason R. Steffen Jan 2019

Criminalization: A Kantian View, Jason R. Steffen

Washington University Jurisprudence Review

One problem in criminal justice theory is determining what kinds of acts ought to be criminalized. A related practical concern is the rampant overcriminalization in American law. In this Article, I propose to address both of these problems by positing a theory of criminalization based upon Immanuel Kant’s political theory. I begin by explaining Kant’s account of civic freedom. I show that free and equal citizens in a just political community must refrain from actions that violate the political freedom of other citizens. From this, I derive a definition of crime as an act that by its nature ...


Testamentary Freedom Vs. The Natural Right To Inherit: The Misuse Of No-Contest Clauses As Disinheritance Devices, Alexis A. Golling-Sledge Jan 2019

Testamentary Freedom Vs. The Natural Right To Inherit: The Misuse Of No-Contest Clauses As Disinheritance Devices, Alexis A. Golling-Sledge

Washington University Jurisprudence Review

Testamentary freedom is the bedrock of inheritance law. The freedom is curbed in some respects in order to allow spouses and other groups access to an estate. However, there is no restriction on a parent's ability to disinherit their children. This note is a critique of the permitted disinheritance of children in the name of testamentary freedom. According to John Locke, the right to inherit emanates from natural law and should be recognized as such. Through forced heirship, as recognized in other modern nations, the U.S. can respect the natural right of children to inherit and leave room ...


@Publicforum: The Argument For A Public Forum Analysis Of Government Officials' Social Media Accounts, Sara J. Benson Jan 2019

@Publicforum: The Argument For A Public Forum Analysis Of Government Officials' Social Media Accounts, Sara J. Benson

Washington University Jurisprudence Review

While citizens have historically marched on the streets or protested in parks to take advantage of the First Amendment, citizens in the modern world have often turned to social media to communicate their ideas and concerns to their government representatives. As new spaces for expressive activity come to light with the development of technology, courts are tasked with determining how to properly analyze government-controlled spaces on social media. This Note will examine the various approaches courts have taken to analyzing government officials’ social media accounts and will argue that Supreme Court precedent and the pluralist theory of democracy support subjecting ...


Death Qualification Of Juries As A Violation Of The Social Contract, Katherine E. Berger Jan 2019

Death Qualification Of Juries As A Violation Of The Social Contract, Katherine E. Berger

Washington University Jurisprudence Review

Trial by a jury of one’s peers is a hallmark of the United States judicial system. The protection a jury trial is supposed to ensure, however, is severely compromised by current case law. Death qualification excludes potential jurors whose views on the death penalty “would prevent or substantially impair the performance of his duties as a juror.” This Note argues that the current practice of “death qualifying” juries in capital murder cases violates the social contract. In the past few years, citizen support for the death penalty reached its lowest point since it was temporarily abolished by the Supreme ...


The Developing Brain: New Directions In Science, Policy, And Law, Susan Frelich Appleton, Deanna M. Barch, Anneliese M. Schaefer Jan 2018

The Developing Brain: New Directions In Science, Policy, And Law, Susan Frelich Appleton, Deanna M. Barch, Anneliese M. Schaefer

Washington University Journal of Law & Policy

No abstract provided.


Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman Jul 2017

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal on Sexual Exploitation and Violence

No abstract provided.


The Black Women Anti-Defamation Coalition: A Proposal For The Remediation Of The Negative, Controlling Images Of Black Women, Shemar Antonio Taylor Jan 2017

The Black Women Anti-Defamation Coalition: A Proposal For The Remediation Of The Negative, Controlling Images Of Black Women, Shemar Antonio Taylor

Senior Projects Spring 2017

This research sets out to highlight the life-altering degree to which negative, domineering depictions of Black women has had and continues to have on their livelihood and also to argue that due to their systemic inability to control and craft their own reputation, this should be categorized as a human rights violation and enforced on the grounds of defamation law. Although I am not a Black woman myself, as a Black man who was raised by three Black women, I have seen first hand the importance of proving this point. Many Black women scholars, many of whom I will be ...


A Duty To Document, Marc Kosciejew Dec 2016

A Duty To Document, Marc Kosciejew

Proceedings from the Document Academy

Access to information is a bedrock principle of contemporary democratic governments and their public agencies and entities. Access to information depends upon these public institutions to document their activities and decisions. When public institutions do not document their activities and decisions, citizens’ right of access is ultimately denied. Public accountability and trust, in addition to institutional memory and the historical record, are undermined without the creation of appropriate records. Establishing and enforcing a duty to document helps promote accountability, openness, transparency, good governance, and public trust in public institutions. A duty to document should therefore be a fundamental component of ...


Effective Social Media Use By Law Enforcement Agencies: A Case Study Approach To Quantifying And Improving Efficacy And Developing Agency Best Practices, David T. Snively Dec 2016

Effective Social Media Use By Law Enforcement Agencies: A Case Study Approach To Quantifying And Improving Efficacy And Developing Agency Best Practices, David T. Snively

Master of Public Administration Practicums

In the wake of protests against law enforcement for an array of reasons, law enforcement officers and agencies have a responsibility to recognize and utilize the available mediums of communication with which they may best develop a connection to the communities they serve. Furthermore, law enforcement agencies must be informed that established, traditional methods of news dissemination – such as press conferences and printed articles – are now both ineffective and under-utilized, replaced in large part by social media live-time reports. For that reason, law enforcement agency executives must address both the responsibility to provide appropriately timed updates to critical incidents and ...


The Political Implications Of Felon Disenfranchisement Laws In The United States, Katharine G. Connaughton Jan 2016

The Political Implications Of Felon Disenfranchisement Laws In The United States, Katharine G. Connaughton

CMC Senior Theses

This empirical study analyzes the political implications for presidential election outcomes that stem from varying felon disenfranchisement laws within the United States. In the past decade incarceration rates have drastically increased, consequently augmenting the disenfranchised population. This paper focuses on presidential election outcomes and state political party majorities in the election years 2000, 2004, 2008, and 2012. I use demographic characteristics to calibrate assumptions for voter turnout and political party choice among the disenfranchised populations within each state. I then apply these voting populations to historical election outcomes and find that three state political party outcomes change, as well as ...


Visualizing Probabilistic Proof, Enrique Guerra-Pujol Nov 2014

Visualizing Probabilistic Proof, Enrique Guerra-Pujol

Washington University Jurisprudence Review

The author revisits the Blue Bus Problem, a famous thought-experiment in law involving probabilistic proof, and presents Bayesian solutions to different versions of the blue bus hypothetical. In addition, the author expresses his solutions in standard and visual formats, that is, in terms of probabilities and natural frequencies.


Legitimation, Mark C. Modak-Truran Jan 2014

Legitimation, Mark C. Modak-Truran

Mark C Modak-Truran

This article identifies three different conceptions of legitimation - pre-modern, modern, and post-secular - that compete both within and across national boundaries for the coveted prize of informing the social imaginary regarding how the government and the law should be legitimated in constitutional democracies. Pre-modern conceptions of legitimation consider governments and rulers legitimate if they are ordained by God or if the political system is ordered in accordance with the normative cosmic order. Contemporary proponents of the pre-modern conception range from those in the United States who maintain that the government has been legitimated by the “Judeo-Christian tradition” to those in predominantly ...


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.


Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram Oct 2013

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual ...


Neoliberalism And The Law Reassessing Historical Materialist Analysis Of The Law For The 21st Century, Justin Schwartz Jan 2013

Neoliberalism And The Law Reassessing Historical Materialist Analysis Of The Law For The 21st Century, Justin Schwartz

Justin Schwartz

Historical materialism has been called in question by the triumph of neoliberalism and the fall of Communism. I show, by consideration of two examples, the 2008 crisis and recent Supreme Court campaign spending First Amendment jurisprudence, that neoliberalism instead vindicates the explanatory power of (non-mechanical and non-deterministic) historical materialism in accounting for a wide range of recent legal developments in legislation, executive (in)action, and judicial decision-making.


Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz Jan 2013

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed ...