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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

I agree with Dworkin that there is widespread theoretical disagreement in law. I hope to show, however, why this disagreement should not be seen as moral in nature. Legal philosophers have nearly always viewed the existence of theoretical disagreement in law as the indicium of moral dispute. If that is so, and if such disagreement is widespread, then this would be compelling evidence of law’s incorporation of moral standards. Thus, theoretical disagreement has posed a powerful challenge to the "positivist" approach, which claims that, for the most part, legality can be determined without resort to moral criteria.

This paper ...


Finding Certainty In Cert: An Empirical Analysis Of The Factors Involved In Supreme Court Certiorari Decisions From 2001-2015, Adam Feldman, Alexander Kappner 2016 University of Southern California

Finding Certainty In Cert: An Empirical Analysis Of The Factors Involved In Supreme Court Certiorari Decisions From 2001-2015, Adam Feldman, Alexander Kappner

University of Southern California Legal Studies Working Paper Series

The Supreme Court annually grants approximately 5% of the petitions to hear cases it receives. It denies petitions from the federal government, from large corporations, and from high-profile attorneys. The decisions of which petitions for writ of certiorari the Court grants sets the Court’s agenda each term and defines the issues which the Court will engage. With such a low likelihood that the Court hears any particular case, what makes a petition more or less likely to be granted? The focus of much of the existing scholarship on certiorari deals with the theoretical underpinnings of these judicial decisions. In ...


Extraterritorial Criminal Jurisdiction, Michael Farbiarz 2016 New York University Law School

Extraterritorial Criminal Jurisdiction, Michael Farbiarz

Michigan Law Review

Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence. This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches ...


Reconsidering The Constitutionality Of Mandatory Minimum Sentences Under Section 231(5)(E) Post-Luxton, Laura Metcalfe 2016 University of Ottawa Faculty of Law

Reconsidering The Constitutionality Of Mandatory Minimum Sentences Under Section 231(5)(E) Post-Luxton, Laura Metcalfe

Western Journal of Legal Studies

Section 231(5)(e) of the Criminal Code elevates murder to first-degree murder when a death is caused while committing unlawful confinement per s. 279 of the Criminal Code. The corresponding mandatory sentence is life imprisonment with no eligibility for parole until 25 years have been served. The Supreme Court of Canada held that this provision was constitutional in R v Luxton, since it did not violate the principles of fundamental justice and was not considered cruel and unusual punishment, contrary to s. 7 and 12 of the Canadian Charter of Rights and Freedoms, respectively.

However, lower courts ought to ...


The Erosion Of The Rule Of Law When A State Attorney General Refuses To Defend The Constitutionality Of Controversial Laws, Rena M. Lindevaldsen 2016 Barry University School of Law

The Erosion Of The Rule Of Law When A State Attorney General Refuses To Defend The Constitutionality Of Controversial Laws, Rena M. Lindevaldsen

Barry Law Review

No abstract provided.


Beyond Willful Ignorance, Alexander F. Sarch 2016 University Southern California

Beyond Willful Ignorance, Alexander F. Sarch

University of Southern California Legal Studies Working Paper Series

The law allows willful ignorance to substitute for knowledge on the theory that these two mental states are equally culpable. This Article argues that, as a result, the law is also committed to allowing some forms of egregious non-willful ignorance—most importantly, reckless ignorance—to substitute for knowledge when the conditions of equal culpability are met. In addition to developing this theoretical argument, the Article argues that some courts already allow reckless ignorance to substitute for knowledge—namely, in cases governed by the collective knowledge doctrine. Allowing reckless ignorance to substitute for knowledge is thus not unprecedented. What’s more ...


The Theory And Doctrine Of Unconstitutional Constitutional Amendment In Canada, Richard Albert 2016 Boston College Law School

The Theory And Doctrine Of Unconstitutional Constitutional Amendment In Canada, Richard Albert

Boston College Law School Faculty Papers

It has become increasingly common for courts in constitutional democracies to invalidate constitutional amendments. Courts have enforced both written and unwritten limits on how political actors may exercise the formal amendment power. They have relied either on constitutional texts that expressly entrench provisions against formal amendment or on their own interpretation of these texts as implicitly establishing an unalterable constitutional core. Although the Supreme Court of Canada has not yet invalidated a constitutional amendment, modern case law provides the constitutional basis for the Court to declare that a future constitutional amendment violates either the text or spirit of the Constitution ...


The Theory And Doctrine Of Unconstitutional Constitutional Amendment In Canada, Richard Albert 2016 Boston College Law School

The Theory And Doctrine Of Unconstitutional Constitutional Amendment In Canada, Richard Albert

Richard Albert

It has become increasingly common for courts in constitutional democracies to invalidate constitutional amendments. Courts have enforced both written and unwritten limits on how political actors may exercise the formal amendment power. They have relied either on constitutional texts that expressly entrench provisions against formal amendment or on their own interpretation of these texts as implicitly establishing an unalterable constitutional core. Although the Supreme Court of Canada has not yet invalidated a constitutional amendment, modern case law provides the constitutional basis for the Court to declare that a future constitutional amendment violates either the text or spirit of the Constitution ...


The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow 2016 Martin Luther Universitat Halle-Wittenberg

The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow

Kevin Crow

There is a new neoliberal penality emerging in the United States with four primary characteristics: (1) the death of rehabilitation, (2) the de-individualization of the criminal, (3) the emergence of a market for deviance, and (4) the managerialistic approach. The prison-industrial complex in the United States illustrates these pillars, but the pillars are not limited to the prison-industrial complex.

Foucault's concept of the prison as an institution primarily of individual normalization presupposes rehabilitation as the primary goal of the institution. This is no longer the case. Rather, the "penal culture" has shifted from one that views crime and imprisonment ...


Knowing When Not To Fight, David Luban 2016 Georgetown University Law Center

Knowing When Not To Fight, David Luban

Georgetown Law Faculty Publications and Other Works

Should military personnel (“soldiers”) become selective conscientious objectors to an unjust war? This chapter argues, first, that in most cases the fog of war and politics makes it unreasonable to expect soldiers to make fact-intensive judgments about whether the war is just. Second, it argues that even a justwar tribunal, of the sort proposed by Jeff McMahan, will not do the job. It will inevitably lack the legitimacy and fact-finding capacity necessary to reassure soldiers in such a weighty decision. Third, the moral importance of maintaining civilian control of the military means that soldiers should generally obey orders to deploy ...


The Gravitational Force Of Federal Law, Scott Dodson 2015 University of California Hastings College of Law

The Gravitational Force Of Federal Law, Scott Dodson

Scott Dodson

In the American system of dual sovereignty, states have primary authority over matters of state law. In nonpreemptive areas in which state and federal regimes are parallel—such as matters of court procedure, certain statutory law, and even some constitutional law—states have full authority to legislate and interpret state law in ways that diverge from analogous federal law. But, in large measure, they don’t. It is as if federal law exerts a gravitational force that draws states to mimic federal law even when federal law does not require state conformity. This paper is the first to explore the ...


Anti-Inquisitorialism, David Sklansky 2015 Berkeley Law

Anti-Inquisitorialism, David Sklansky

David A Sklansky

A broad and enduring theme of Atherican jurisprudence treats the Continental, inquisitorial system of criminal procedure as epitomizing what our system is not; avoiding inquisitorialism has long been thought a core commitment of our legal heritage. This Article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American law. The Article begins by describing four particularly striking examples of anti-inquisitorialism at work: the Supreme Court's recent reinterpretation of the Confrontation Clause; the Court's invalidation of mandatory sentencing ...


Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, barbara p. billauer esq 2015 University of Haifa University Faculty of Law

Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract:

The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is?

It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the ...


Unfair Trade Practices In Imports - Section 337 Of The Tariff Act Of 1930 And The Meaning Of "Domestic Industry", Kathy Bond 2015 University of Georgia School of Law

Unfair Trade Practices In Imports - Section 337 Of The Tariff Act Of 1930 And The Meaning Of "Domestic Industry", Kathy Bond

Georgia Journal of International & Comparative Law

No abstract provided.


Roe V. Wade: The Case That Changed Democracy, Adam Lamparello, Adam Lamparello 2015 Indiana Tech Law School

Roe V. Wade: The Case That Changed Democracy, Adam Lamparello, Adam Lamparello

Adam Lamparello

No abstract provided.


Books Received, Georgia Journal of International and Comparative Law 2015 University of Georgia School of Law

Books Received, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.


Family Law In The Republic Of Ireland, William Binchy 2015 University of Georgia School of Law

Family Law In The Republic Of Ireland, William Binchy

Georgia Journal of International & Comparative Law

No abstract provided.


Aviation Law-Air Services Agreement Between The United States And The United Kingdom, Patricia E. Cooper 2015 University of Georgia School of Law

Aviation Law-Air Services Agreement Between The United States And The United Kingdom, Patricia E. Cooper

Georgia Journal of International & Comparative Law

No abstract provided.


The International Banking Act Of 1978: Federal Regulation Of Foreign Banks In The United States, Patrick F. McMahon 2015 University of Georgia School of Law

The International Banking Act Of 1978: Federal Regulation Of Foreign Banks In The United States, Patrick F. Mcmahon

Georgia Journal of International & Comparative Law

No abstract provided.


Judicial Candor And Extralegal Reasoning: Why Extralegal Reasons Require Legal Justifications (And No More), Eric Dean Hageman 2015 Notre Dame Law School

Judicial Candor And Extralegal Reasoning: Why Extralegal Reasons Require Legal Justifications (And No More), Eric Dean Hageman

Notre Dame Law Review

This Note’s first Part explores two landmark Supreme Court cases, Planned Parenthood of Southeastern Pennsylvania v. Casey and NFIB, that may have been decided based on extralegal considerations. Part II describes three prominent theories of judicial candor with an eye to the results they might yield with respect to extralegal reasoning. Part III offers and defends a new, partial theory of judicial candor. This theory is that a judge who employs extralegal reasoning should omit discussion of her reliance on that reasoning and justify her decision with legal reasoning.

The first two Parts will demonstrate that there is a ...


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