The Other Preamble: Civic Constitutionalism And The Preamble To The Bill Of Rights, 2017 wesleyan university
The Other Preamble: Civic Constitutionalism And The Preamble To The Bill Of Rights, John E. Finn
Concordia Law Review
This Article considers the civic constitutionalist nature of the Preamble to the Bill of Rights. Civic constitutionalism is a mode of reading constitutional texts that considers power in political, as opposed to legal, terms. Thus, the civic constitution gives citizens, not judges, the primary duty for ensuring a constitutionally compliant society. This Article also presents the underlying reasons, effects, and costs of the obscurity of the civic constitution and, more specifically, the Preamble to the Bill of Rights.
Private Rights And Private Wrongs, 2017 DePaul University College of Law
Private Rights And Private Wrongs, Andrew S. Gold
Michigan Law Review
Review of Private Wrongs by Arthur Ripstein.
Law As Trope: Framing And Evaluating Conceptual Metaphors, 2017 Wake Forest University School of Law
Law As Trope: Framing And Evaluating Conceptual Metaphors, Harold Anthony Lloyd
Pace Law Review
Like others who work with language, many lawyers no doubt appreciate good kennings. However, metaphors also play a much deeper role in thought and law than style, ornament, or verbal virtuosity. As we shall see, metaphors play a necessary role in our categories of thought. As a result, metaphors are a necessary part of thought itself, including legal thought.
Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, 2017 California Western School of Law
Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager
Daniel B. Yeager
Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships ...
Marlowe's Faustus: Contract As Metaphor?, 2017 California Western School of Law
Marlowe's Faustus: Contract As Metaphor?, Daniel B. Yeager
Daniel B. Yeager
No abstract provided.
Our Principled Constitution, 2017 University of Pennsylvania Law School
Our Principled Constitution, Mitchell N. Berman
Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.
Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a ...
Does Hard Incompatibilism Really Abolish ‘Right’ And ‘Wrong’? Some Thoughts In Response To Larry Alexander, 2017 Pace University School of Law
Does Hard Incompatibilism Really Abolish ‘Right’ And ‘Wrong’? Some Thoughts In Response To Larry Alexander, John A. Humbach Mr.
Pace Law Faculty Publications
In a challenge to recent writings of Derk Pereboom and Gregg Caruso,3 Larry Alexander makes the following claim: If one accepts the Pereboom-Caruso “hard incompatibilist” view of choice, which regards blame and retributive punishment as morally unjustified because free will is an illusion, then “normativity completely disappears.” In making this claim, Professor Alexander appears to hold that the moral distinction between right and wrong conduct (“normativity”) cannot effectively exist unless those who do wrong “deserve” to receive blame and punishment in response to their misbehavior. This is not, however, necessarily so.
Bail Reform: New Directions For Pretrial Detention And Release, 2017 University of Pennsylvania
Bail Reform: New Directions For Pretrial Detention And Release, Megan Stevenson, Sandra G. Mayson
Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who ...
High-Stakes Interpretation, 2017 University of Pennsylvania Law School
High-Stakes Interpretation, Ryan D. Doerfler
Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.
This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to ...
Patriarchy, Not Hierarchy: Rethinking The Effect Of Cultural Attitudes In Acquaintance Rape Cases, 2017 Florida International University College of Law
Patriarchy, Not Hierarchy: Rethinking The Effect Of Cultural Attitudes In Acquaintance Rape Cases, Eric R. Carpenter
Do certain people view acquaintance rape cases in ways that favor the man? The answer to that question is important. If certain people do, and those people form a disproportionately large percentage of the people in the institutions that process these cases, then those institutions may process these cases in ways that favor the man. In 2010, Dan Kahan published Culture, Cognition, and Consent, a study on how people evaluate a dorm room rape scenario. He found that those who endorsed a stratified, hierarchical social order were more likely to find that the man should not be found guilty of ...
Comments: When Psychology Answers Constitutional Questions: The Eighth Amendment And Juvenile Sentencing, 2017 University of Baltimore School of Law
Comments: When Psychology Answers Constitutional Questions: The Eighth Amendment And Juvenile Sentencing, Emily M. Steiner
University of Baltimore Law Review
While weighing whether or not to turn himself in for murder and surrender to prison, a 23-year-old law student questions the high premium placed on imprisonment as a rehabilitative measure. After finally submitting to imprisonment, however, Rodion Raskolnikov comes to understand the value of atoning for his crimes and how his punishment correlates with societal justice. The balance struck between an appropriate amount of suffering and society’s need for justice is at the heart of Raskolnikov’s character development.
Despite Raskolnikov’s imprisonment and accompanying character transformation, one important question remains unanswered by Fyodor Dostoevsky’s novel: at what ...
Emigres: Lost In A Sea Of Ignorance, 2017 Florida Agricultural and Mechanical University
Emigres: Lost In A Sea Of Ignorance, Ronald C. Griffin
Faculty Books and Book Contributions
In EMIGRES: Lost in a Sea of Ignorance, Prof. Griffin states that austerity grips western nations, where governments spend paltry sums on welfare, refugees, and migrants. In his essay, Griffin parses a trove of knowledge about welfare and what's being done for needy people. There is a recounting of an Irish case, a report on spectacles in the US, and a narrative about the troubles in Europe stirred-up by Syrian refugees.
Abductive Reasoning In Wto Law, 2017 University of Western Ontario
Abductive Reasoning In Wto Law, Chios Carmody
Law is about many things, but at base it is about rights and obligations. That jural correlation is established and sustained by means of reasoning. We hold that an actor has a right or obligation by virtue of reasoning that classically occurs in one of two forms. An obligation creates a right by means of inductive logic that rests on the conviction of similar instances in the past and the need for proof. It can also create an obligation by means of deductive logic, that is, the process of reasoning from one or more statements (premises) that are used to ...
Callister Freedom Essay 1.22.Repository.Submission.Pdf, 2016 University of Missouri-Kansas City
Callister Freedom Essay 1.22.Repository.Submission.Pdf, Paul D. Callister
Paul D. Callister
Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, 2016 Legal Studies & Business Ethics/Wharton University of Pennsylvania
Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall
Amy J. Sepinwall
Patriarchy, Not Hierarchy: Rethinking The Effect Of Cultural Attitudes In Acquaintance Rape Cases, 2016 Florida International University College of Law
Patriarchy, Not Hierarchy: Rethinking The Effect Of Cultural Attitudes In Acquaintance Rape Cases, Eric Carpenter
Eric R. Carpenter
The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana
What Is Meant By Freedom?, 2016 University of Missouri-Kansas City
What Is Meant By Freedom?, Paul D. Callister
Paul D. Callister
A Structural Etiology Of The U.S. Constitution, 2016 Notre Dame Law School
A Structural Etiology Of The U.S. Constitution, Charles Lincoln
Journal of Legislation
This article offers an interpretation of the problems addressed by and the eventual purpose of the United States government. Simultaneously, it seeks to analyze and explain the continued three-part structure of the United States federal government as outlined in the Constitution. Subsequently I define the three parts of the federal government—judiciary, executive, and legislative—as explained through the lens of the Platonic paradigm of (logos = word = law), (thymos = external driving spirit = executive), and (eros = general welfare = legislative) extrapolated from Plato’s dialogues.
First, the article establishes Plato’s theory of the three-part Platonic soul as a major premise, as ...
The Question Concerning Technology In Compliance, 2016 Brooklyn Law School
The Question Concerning Technology In Compliance, Sean J. Griffith
Brooklyn Journal of Corporate, Financial & Commercial Law
In this symposium Essay, I apply insights from philosophy and psychology to argue that modes of achieving compliance that focus on technology undermine, and are undermined by, modes of achieving compliance that focus on culture. Insisting on both may mean succeeding at neither. How an organization resolves this apparent contradiction in program design, like the broader question of optimal corporate governance arrangements, is highly idiosyncratic. Firms should therefore be accorded maximum freedom in designing their compliance programs, rather than being forced by enforcement authorities into a set of de facto mandatory compliance structures.