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Nonmoral Theoretical Disagreement In Law, Alani Golanski 2016 Weitz & Luxenberg, P.C.

Nonmoral Theoretical Disagreement In Law, Alani Golanski

Alani Golanski

The central issue in the philosophy of law has been whether law’s content and validity rest on moral criteria. Scholars have viewed theoretical disagreements in law as the indicia of moral dispute. Both sides of the debate – those favoring and those opposing the view that moral justification may or does supply the criteria by which a rule or principle counts as "legal" – have accepted the notion that, if there is widespread theoretical disagreement in law, this would be compelling evidence of law’s incorporation of moral standards. Thus, theoretical disagreement poses a powerful challenge to the "positivist" approach, which ...


Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln IV 2015 Texas A&M University School of Law

Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv

Charles E. A. Lincoln IV

This Article uses the dialectical ideas of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) in application to the progression of United States voting laws since the founding. This analysis can be used to interpret past progression of voting rights in the US as well as a provoking way to predict the future trends in US voting rights.

First, Hegel’s dialectical method is established as a major premise. Second, the general accepted history of United States voting laws from the 1770s to the current day is laid out as a minor premise. Third, the major premise of Hegel’s dialectical ...


Assessing The Role Of History In The Federal Courts Canon: A Word Of Caution, Amanda L. Tyler 2015 University of California, Berkeley School of Law

Assessing The Role Of History In The Federal Courts Canon: A Word Of Caution, Amanda L. Tyler

Notre Dame Law Review

In undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. In support of ...


The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad 2015 Columbia University

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian ...


The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan 2015 St. Mary's School of Law, Texas

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.


The Eu's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh 2015 The Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law

The Eu's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh

Aravind Ganesh

The EU has perfect human rights obligations towards distant strangers. My argument has two limbs: Firstly, in numerous policy areas, the EU asserts jurisdiction via ‘territorial extension’, which combines territorially limited enforcement jurisdiction with a claim of geographically unbounded prescriptive jurisdiction. Doctrinally, this strongly resembles the Lotus principle, and viewed analytically, amounts to a claim not just of power but of political authority. Thus, the EU creates not just factual effects, but legal effects abroad. Secondly, assertions of political authority, even if only de facto, give rise to perfect human rights obligations. I illustrate this by reference to the Strasbourg ...


Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra 2015 University of Brasília-Brazil

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection of ...


The Independent Press After The "Moroccan Spring", Hamza Tayebi 2015 Sidi Mohammed Ben Abdellah University, Faculty of Letters Dhar El Mehraz

The Independent Press After The "Moroccan Spring", Hamza Tayebi

Mathal

The wave of Arab Spring that started in Tunisia and Egypt arrived to Morocco in 2011 paving the way to unprecedented organized mass-protests all over the country. Among the demands raised by the 20 February Movement protesters was the demand for free and independent media outlets, especially the press. King Mohammed VI, the Commander of the Faithful and the highest authority in Morocco, promised in a televised speech on March 9th to introduce "radical" and "genuine" constitutional reforms that would democratize the country. In fact, King Mohammed VI has so far succeeded in calming down and co-opting the demonstrations, but ...


Do We Know How To Punish?, Benjamin L. Apt 2015 U.S. Dept. of Labor

Do We Know How To Punish?, Benjamin L. Apt

Benjamin L. Apt

A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological ...


What Diversity Contributes To Equal Opportunity, Stephen M. Rich 2015 University of Southern California Gould School of Law

What Diversity Contributes To Equal Opportunity, Stephen M. Rich

University of Southern California Legal Studies Working Paper Series

The ideal of diversity so pervades American public life that we now speak of diversity where we once spoke of equality. This Article rejects the dominant legal conception of diversity found in equal protection jurisprudence but not the relevance of diversity to the project of equal opportunity. In Grutter v. Bollinger, the Supreme Court endorsed diversity as a compelling governmental interest capable of justifying the use of racial preferences in public university admissions. However, rather than quieting public controversies about affirmative action, the decision has been a frequent target of legal and political attack, and its narrow focus on educational ...


One Law Of Race?, Stephen M. Rich 2015 University of Southern California Gould School of Law

One Law Of Race?, Stephen M. Rich

University of Southern California Legal Studies Working Paper Series

Is race discrimination a single social phenomenon, and, if it is, why not govern it by a single legal rule? The temptation to conform constitutional and statutory standards in race equality law is powerful and appears to have captured the imagination of the Supreme Court in several of its most recent decisions. Historically, the Court’s decisions in this area have sometimes promoted convergence between constitutional and statutory standards, often by using constitutional precedents to resolve issues of statutory interpretation. At other times, they have promoted divergence, by honoring the authority of political institutions to establish equality norms that exceed ...


Inferred Classifications, Stephen M. Rich 2015 University of Southern California Gould School of Law

Inferred Classifications, Stephen M. Rich

University of Southern California Legal Studies Working Paper Series

This Article discusses a fundamental problem in constitutional law, namely that equal protection doctrine commands strict scrutiny of all racial classifications but does not specify what constitutes a racial classification. This omission has left many public institutions and legal scholars to assume that a racial classification must be explicit in order to receive strict scrutiny. This assumption, however, is false. The Article proposes the concept of “inferred classifications” to describe instances in which the Supreme Court has inferred racial classifications from the form and practical effect of facially neutral legislation. The assumption that racial classifications must be explicit is driven ...


Justice Kennedy's Decision In Obergefell: A Sad Day For The Judiciary, Adam Lamparello 2015 Indiana Tech Law School

Justice Kennedy's Decision In Obergefell: A Sad Day For The Judiciary, Adam Lamparello

Adam Lamparello

Same-sex couples have a constitutional right to marriage under the Equal Protection Clause, not under Justice Kennedy’s self-serving and ever-changing definition of liberty. The long-term impact of Kennedy’s decision will be to the Court’s institutional legitimacy. Chief Justice Roberts emphasized that the legitimacy of this Court ultimately rests “upon the respect accorded to its judgments,” which is based on the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law.” Justice Kennedy’s decision eschewed these values, giving the Court the power to discover “new dimensions of freedom,” and ...


Franz Kafka’S “Before The Law”: A Parable, Geoffrey L. Brackett 2015 Marist College

Franz Kafka’S “Before The Law”: A Parable, Geoffrey L. Brackett

Pace Law Review

Despite Francis Bacon’s cautionary note, I have always been a fan of parables, and perhaps the most poignant one to speak for perils of the legal profession is Franz Kafka’s “Vor dem Gesetz” (“Before the Law”), one of the relatively few works to be published in his lifetime. It was seen first in the almanac Vom Jüngsten Tag: Ein Almanach Neuer Dichtung in December 1915 before it was included in his novel Der Prozess (The Trial), which was unpublished in his lifetime. He wrote it at one sitting on December 13, 1914, and in fewer than 650 words ...


The Process Of International Law-Making: The Relationship Between The International Court Of Justice And The International Law Commission, Marija Dordeska 2015 George Washington University Law School

The Process Of International Law-Making: The Relationship Between The International Court Of Justice And The International Law Commission, Marija Dordeska

Marija Dordeska

Article 38, para.1, of the Statute of the International Court of Justice (“ICJ”) defines customary international law as evidence of general practice accepted as law, understood as State practice and opinio juris. However, by identifying certain norms as custom without referring to the traditional evidence of State practice and opinio juris, international courts and tribunals have also contributed to the formation of customary international law. This paper presents an analysis of how the ICJ in particular, contributes to the formation of customary international law by relying on the draft articles of the International Law Commission (“ILC”). The paper is ...


When Do The Ends Justify The Means?: The Role Of The Necessary And Proper Clause In The Commerce Clause Analysis, David Loudon 2015 University of Massachusetts School of Law

When Do The Ends Justify The Means?: The Role Of The Necessary And Proper Clause In The Commerce Clause Analysis, David Loudon

University of Massachusetts Law Review

This Article discusses the interplay between the Necessary and Proper Clause and the Commerce Clause, particularly in light of the landmark decision of National Federation of Independent Business v. Sebelius. First, this Article reviews the historical interaction between the two clauses, discussing the instances in which the two may have been considered together, and introducing the Supreme Court jurisprudence of each clause, setting the legal landscape for the NFIB v. Sebelius decision. Next, this Article details the three opinions from the NFIB v. Sebelius decision, Chief Justice Roberts’ holding, the joint concurrence, and Justice Ginsberg’s dissent, specifically as they ...


Immune Disorder: Uncertainty Regarding The Application Of "Stand Your Ground" Laws, Benjamin M. Boylston 2015 Barry University School of Law

Immune Disorder: Uncertainty Regarding The Application Of "Stand Your Ground" Laws, Benjamin M. Boylston

Barry Law Review

No abstract provided.


Unlawful/Criminal Activity: The Ill-Defined And Inadequate Provision For A "Stand Your Ground" Defense, R. Christopher Campbell 2015 Barry University School of Law

Unlawful/Criminal Activity: The Ill-Defined And Inadequate Provision For A "Stand Your Ground" Defense, R. Christopher Campbell

Barry Law Review

No abstract provided.


Another Bizarre Twist In Florida's Stand Your Ground Law, Rachel A. Mattie 2015 Barry University School of Law

Another Bizarre Twist In Florida's Stand Your Ground Law, Rachel A. Mattie

Barry Law Review

No abstract provided.


Know The Ground You're Standing On: Analyzing Stand Your Ground And Self-Defense In Florida's Legal System, Jessica Travis, Jeffrey James 2015 Barry University School of Law

Know The Ground You're Standing On: Analyzing Stand Your Ground And Self-Defense In Florida's Legal System, Jessica Travis, Jeffrey James

Barry Law Review

No abstract provided.


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