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Jurisprudence Between Science And The Humanities, Dan Priel 2016 York University

Jurisprudence Between Science And The Humanities, Dan Priel

Dan Priel

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this Article I examine the place of science in relation to legal positivism. I argue that, historically, legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science: they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that since around 1960 jurisprudence, and legal positivism in particular, has undergone ...


Forum Selling, Daniel M. Klerman, Greg Reilly 2016 USC Law School

Forum Selling, Daniel M. Klerman, Greg Reilly

University of Southern California Legal Studies Working Paper Series

Forum shopping is problematic because it may lead to forum selling. For diverse motives, including prestige, local benefits, or re-election, some judges want to hear more cases. When plaintiffs have wide choice of forum, such judges have incentives to make the law more pro-plaintiff, because plaintiffs choose the court. While only a few judges may be motivated to attract more cases, their actions can have large effects, because their courts will attract a disproportionate share of cases. For example, judges in the Eastern District of Texas have distorted the rules and practices relating to case assignment, joinder, discovery, transfer, and ...


The Death Penalty In Traditional China, Chin Kim, Theodore R. LeBlang 2016 University of Illinois

The Death Penalty In Traditional China, Chin Kim, Theodore R. Leblang

Georgia Journal of International & Comparative Law

No abstract provided.


Before Mayo & After Alic: The Changing Concept Of Abstract Ideas, Magnus Gan 2016 University of Michigan Law School

Before Mayo & After Alic: The Changing Concept Of Abstract Ideas, Magnus Gan

Michigan Telecommunications and Technology Law Review

Mayo v. Prometheus and Alice v. CLS are landmark Supreme Court decisions which respectively introduced and then instituted a new, two-step patent-eligibility test. Step One tests the patent claims for abstractness, while Step Two tests for inventive application. This new test was so demanding that in the one-year period after Alice was decided, over 80 percent of all challenged patents had one or more claims invalidated. In fact, at the Federal Circuit over the same time period, only one recorded case of a successful Alice defense exists—DDR Holdings v. Hotels.com. This note explains DDR’s success as an ...


The Mythical Beginnings Of Intellectual Property, Jessica M. Silbey 2016 Suffolk University

The Mythical Beginnings Of Intellectual Property, Jessica M. Silbey

Jessica Silbey

It has become commonplace to justify intellectual property protection with homage to utilitarianism (maximizing the incentive to create, invent or produce quality goods) or natural rights (people should own the product of their creative, inventive or commercial labor). Despite the on-going dominance of these theories, there remains a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection. This is in part because the economic analysis of law tends to undervalue the humanistic element of intellectual property. This Article aims to fill that void. It offers a new explanation for intellectual property rooted in narrative theory. Whereas ...


Images In/Of Law, Jessica M. Silbey 2016 Suffolk University

Images In/Of Law, Jessica M. Silbey

Jessica Silbey

The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and ...


Transgressions Of A Timid Judiciary: Our Highest Court's Refusal To Overturn Abood V. Board Of Education—Harris V. Quinn, Joe E. Ling 2016 Mitchell Hamline School of Law

Transgressions Of A Timid Judiciary: Our Highest Court's Refusal To Overturn Abood V. Board Of Education—Harris V. Quinn, Joe E. Ling

Mitchell Hamline Law Review

No abstract provided.


The Staab Saga: The Nonparty, Joint And Several Liability, And Loss Reallocation In The Minnesota Comparative Fault Act, Mike Steenson 2016 Mitchell Hamline School of Law

The Staab Saga: The Nonparty, Joint And Several Liability, And Loss Reallocation In The Minnesota Comparative Fault Act, Mike Steenson

Mitchell Hamline Law Review

No abstract provided.


Charter Constitutionalism: The Myth Of Edward Coke And The Virginia Charter, Mary S. Bilder 2016 Boston College Law School

Charter Constitutionalism: The Myth Of Edward Coke And The Virginia Charter, Mary S. Bilder

Boston College Law School Faculty Papers

Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties ...


Magna Carta For The World? The Merchants’ Chapter And Foreign Capital In The Early American Republic, Daniel J. Hulsebosch 2016 NYU School of Law

Magna Carta For The World? The Merchants’ Chapter And Foreign Capital In The Early American Republic, Daniel J. Hulsebosch

New York University Public Law and Legal Theory Working Papers

This Article examines the early modern revival and subtle transformation in what is here called the merchants’ chapter of Magna Carta and then analyzes how lawyers, judges, and government officeholders invoked it in the new American federal courts and in debates over congressional power. In the U.S. Supreme Court in the early 1790s, a British creditor and an American State debated the meaning and applicability of the merchants’ chapter, which guaranteed two rights to foreign merchants: free entry and exit during peacetime, without being subjected to arbitrary taxes; and, in wartime, the promise that their persons and goods would ...


Exile, Choice, And Loyalism: Taking And Restoring Dignity In The American Revolution, Daniel J. Hulsebosch 2016 NYU School of Law

Exile, Choice, And Loyalism: Taking And Restoring Dignity In The American Revolution, Daniel J. Hulsebosch

New York University Public Law and Legal Theory Working Papers

Taking a cue from Bernadette Atuahene’s concept of “dignity takings” and her insight that government expropriation inflicts more than economic injury, this essay analyzes how American revolutionaries defined political membership, penalized and expropriated British loyalists, and then allowed some to join the American polity in the decade after the Revolution. Many recovered their property, professions, and legal privileges. However, because most loyalists could choose to remain loyal or join the Revolution, they did not lose human dignity as Atuahene defines it. Case studies of two reintegrating lawyers, Richard Harison and William Rawle, explore loyalism, the loss of dignities that ...


English Liberties Outside England: Floors, Doors, Windows, And Ceilings In The Legal Architecture Of Empire, Daniel J. Hulsebosch 2016 NYU School of Law

English Liberties Outside England: Floors, Doors, Windows, And Ceilings In The Legal Architecture Of Empire, Daniel J. Hulsebosch

New York University Public Law and Legal Theory Working Papers

We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized ...


Charter Constitutionalism: The Myth Of Edward Coke And The Virginia Charter, Mary S. Bilder 2016 Boston College Law School

Charter Constitutionalism: The Myth Of Edward Coke And The Virginia Charter, Mary S. Bilder

Mary Sarah Bilder

Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties ...


"The Dean Of Chicago's Black Lawyers": Earl Dickerson And Civil Rights Lawyering In The Years Before Brown, Jay Tidmarsh, Stephen Robinson 2016 Notre Dame Law School

"The Dean Of Chicago's Black Lawyers": Earl Dickerson And Civil Rights Lawyering In The Years Before Brown, Jay Tidmarsh, Stephen Robinson

Jay Tidmarsh

Brown v. Board of Education is a watershed in American law and society. In the years since it was decided, Brown has shaped America's views of race, constitutionalism, and equality. Brown exerts an equally important influence over the historiography of civil rights lawyering in the decades before Brown. In particular, in constructing the story of civil rights lawyering in the crucial years between World War I and World War II, historians and legal scholars have focused primarily on the people and the events that shaped Brown.


"The Dean Of Chicago's Black Lawyers": Earl Dickerson And Civil Rights Lawyering In The Years Before Brown, Jay Tidmarsh, Stephen Robinson 2016 Notre Dame Law School

"The Dean Of Chicago's Black Lawyers": Earl Dickerson And Civil Rights Lawyering In The Years Before Brown, Jay Tidmarsh, Stephen Robinson

Jay Tidmarsh

Brown v. Board of Education is a watershed in American law and society. In the years since it was decided, Brown has shaped America's views of race, constitutionalism, and equality. Brown exerts an equally important influence over the historiography of civil rights lawyering in the decades before Brown. In particular, in constructing the story of civil rights lawyering in the crucial years between World War I and World War II, historians and legal scholars have focused primarily on the people and the events that shaped Brown.


The Stereotyped Offender: Domestic Violence And The Failure Of Intervention [Batterer Intervention Program (Bip) Standards Data, As Of 2015], Carolyn B. Ramsey 2016 University of Colorado Law School

The Stereotyped Offender: Domestic Violence And The Failure Of Intervention [Batterer Intervention Program (Bip) Standards Data, As Of 2015], Carolyn B. Ramsey

Research Data

These 19 comparative data tables relating to state and local certification standards for batterer intervention programs (BIPs), as of 2015, are electronic Appendices B-T to Carolyn B. Ramsey, The Stereotyped Offender: Domestic Violence and the Failure of Intervention, 120 Penn. St. L. Rev. 337 (2015). Appendix A is not reproduced here because it simply contains citations to the state and local standards, but it is published with the journal article.


The One Exhibition The Roots Of The Lgbt Equality Movement One Magazine & The First Gay Supreme Court Case In U.S. History 1943-1958, Joshua R. Edmundson 2016 California State University - San Bernardino

The One Exhibition The Roots Of The Lgbt Equality Movement One Magazine & The First Gay Supreme Court Case In U.S. History 1943-1958, Joshua R. Edmundson

Electronic Theses, Projects, and Dissertations

The ONE Exhibition explores an era in American history marked by intense government sponsored anti-gay persecution and the genesis of the LGBT equality movement. The study begins during World War II, continues through the McCarthy era and the founding of the nation’s first gay magazine, and ends in 1958 with the first gay Supreme Court case in U.S. history.

Central to the story is ONE The Homosexual Magazine, and its founders, as they embarked on a quest for LGBT equality by establishing the first ongoing nationwide forum for gay people in the U.S., and challenged the government ...


Habeas As Forum Allocation: A New Synthesis, Carlos Manuel Vázquez 2016 Georgetown University Law Center

Habeas As Forum Allocation: A New Synthesis, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the ...


The Refracted Constitution: Classical Liberalism And The Lessons Of History, 101 Iowa L. Rev. Online 97 (2016), Samuel R. Olken 2016 John Marshall Law School

The Refracted Constitution: Classical Liberalism And The Lessons Of History, 101 Iowa L. Rev. Online 97 (2016), Samuel R. Olken

Samuel R. Olken

As a prism refracts light, bending its rays in different directions and revealing its many colors, the Constitution also refracts the myriad perceptions of its interpreters. The debate published last fall in the Iowa Law Review between Professors Herbert Hovenkamp and Richard Epstein over whether the Constitution is, in the words of Professor Epstein, “a classical liberal document,” reveals divergent perspectives about the role of history in constitutional interpretation. Professor Epstein, who for much of his career has analyzed constitutional issues through the lens of law and economics, is primarily a legal theorist for whom history provides examples of how ...


Elusive Equality: The Armenian Genocide And The Failure Of Ottoman Legal Reform, Mark L. Movsesian 2016 University of St. Thomas, Minnesota

Elusive Equality: The Armenian Genocide And The Failure Of Ottoman Legal Reform, Mark L. Movsesian

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


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