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Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz III 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii

Scholarly Works

Chaim Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman’s argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled “Perelman’s Th eory of Argumentation as a Rejection of Natural Law.”

However, my thesis is precisely that Perelman’s theory of argumentation connects to the natural law tradition in ...


A Short History Of Tontines, Kent McKeever 2010 Columbia Law School

A Short History Of Tontines, Kent Mckeever

Faculty Scholarship

A tontine is an investment scheme through which shareholders derive some form of profit or benefit while they are living, but the value of each share devolves to the other participants and not the shareholder's heirs on the death of each shareholder. The tontine is usually brought to an end through a dissolution and distribution of assets to the living shareholders when the number of shareholders reaches an agreed small number.

If people know about tontines at all, they tend to visualize the most extreme form – a joint investment whose heritable ownership ends up with the last living shareholder ...


Ugly American Hermeneutics, Francis J. Mootz III 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Ugly American Hermeneutics, Francis J. Mootz Iii

Scholarly Works

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.


Decolonization, Development, And Denial, Natsu Taylor Saito 2010 Georgia State University College of Law

Decolonization, Development, And Denial, Natsu Taylor Saito

Faculty Publications By Year

No abstract provided.


The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah Purdy 2010 Duke Law School

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and ...


The Forgotten Freedom Of Assembly, John D. Inazu 2010 Duke Law School

The Forgotten Freedom Of Assembly, John D. Inazu

Faculty Scholarship

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution'. In 1939 ...


The Third Wave's Break From Feminism, Bridget J. Crawford 2010 Elisabeth Haub School of Law at Pace University

The Third Wave's Break From Feminism, Bridget J. Crawford

Pace Law Faculty Publications

Janet Halley proves that third-wave feminism is wrong - wrongly described, that is. Young feminists in the United States tout a "third wave" of feminism that is hip, ironic and playful - the supposed opposite of the dour and strident "second wave" of 1970's feminism. Goodbye frumpy sandals; hello sexy fishnets, according to third-wave feminism. Initially young women themselves (and now writers and scholars) embraced a pervasive wave metaphor to convey the belief that differences within feminism are generational. Youth crashes against (and ultimately overtakes) its elders. But rifts within feminism cannot be so neatly explained. The story is more complicated ...


How Must A Lawyer Be? A Response To Woolley And Wendel, David Luban 2010 Georgetown University Law Center

How Must A Lawyer Be? A Response To Woolley And Wendel, David Luban

Georgetown Law Faculty Publications and Other Works

In Legal Ethics and Moral Character, 23 GEO. J. LEGAL Ethics, Alice Woolley and W. Bradley Wendel argue that theories of legal ethics may be evaluated by examining the kind of person a lawyer must be to conform to the normative demands of the theory. In their words, theories of legal ethics musts answer questions not only of what a lawyer must do, but how a lawyer must be. Woolley and Wendel examine three theories of legal ethics—those of Charles Fried, William Simon, and myself—and conclude that the theories they discuss impose demands on agency that are not ...


David Luban, Review Of Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy In A Democratic Age, David Luban 2010 Georgetown University Law Center

David Luban, Review Of Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy In A Democratic Age, David Luban

Georgetown Law Faculty Publications and Other Works

Daniel Markovits offers a novel defense of the traditional partisan advocate’s role, based on the demands of personal integrity. Although he insists that the adversary system requires lawyers to lie and cheat (regardless of the particular ethics rules in place), it is possible to redescribe these lawyerly vices as the virtue of fidelity to a client, expressed through what John Keats called “negative capability”—a suppression of the self in order to allow someone else’s story to shine forth. These are first-personal moral ideals, and Markovits argues against the primacy of second- and third-personal moral ideals (such as ...


Narrative, Normativity, And Causation, Lawrence B. Solum 2010 Georgetown University Law Center

Narrative, Normativity, And Causation, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay examines the relationship between constitutional narratives, causation, and normativity in the context of Barry Friedman’s book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. In his book, Friedman provides a grand narrative of American constitutional history that emphasizes the role of public opinion in the development of American constitutional law. That narrative involves both implicit and explicit claims about the causal forces that shape constitutional doctrine and about normative constitutional theory. The aim of this essay is to identify those claims, excavate their theoretical assumptions ...


Judge Bell And Professional Courage, Larry D. Thompson 2010 University of Georgia School of Law

Judge Bell And Professional Courage, Larry D. Thompson

Scholarly Works

This article eulogizes Judge Griffin B. Bell, with an emphasis on the importance of professional standards in the legal field.


Applied Legal History: Demystifying The Doctrine Of Odious Debts, Mitu Gulati, Sarah Ludington, Alfred L. Brophy 2010 Duke Law School

Applied Legal History: Demystifying The Doctrine Of Odious Debts, Mitu Gulati, Sarah Ludington, Alfred L. Brophy

Faculty Scholarship

"Odious debts" have been the subject of debate in academic, activist, and policymaking circles in recent years. The term refers to the debts of a nation that a despotic leader incurs against the interests of the populace. When the despot is overthrown, the new government — understandably — does not wish to repay creditors who helped prop up the despot. One argument has focused on whether customary international law supports a "doctrine" of odious debts that justifies the nonpayment of sovereign debts when three conditions are met: (1) the debts were incurred by a despotic ruler (without the consent of the populace ...


The Strange Origins Of The Constitutional Right Of Association, John D. Inazu 2010 Duke Law School

The Strange Origins Of The Constitutional Right Of Association, John D. Inazu

Faculty Scholarship

Although much has been written about the freedom of association and its ongoing importance to American constitutionalism, much recent scholarship mistakenly relies on a truncated history that begins with Roberts v. United States Jaycees, 468 U.S. 609 (1984), the case that divided constitutional association into intimate and expressive components. Roberts’s doctrinal framework has been rightly criticized. However, neither the right of association nor all of its doctrinal problems start there. The Supreme Court’s foray into the constitutional right of association began a generation earlier with NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). This ...


The Interpretation-Construction Distinction, Lawrence B. Solum 2010 Georgetown University Law Center

The Interpretation-Construction Distinction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly!

The basic idea can be explained by distinguishing ...


Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson 2010 Fordham University School of Law

Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson

Faculty Scholarship

This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be approached but ...


Ugly American Hermeneutics, Francis J. Mootz III 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Ugly American Hermeneutics, Francis J. Mootz Iii

Nevada Law Journal

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.


Hermeneutics- The Path Of The Hermeneutic-Ontological Shift And The Decolonial Shift, Celso Luiz Ludwig 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Hermeneutics- The Path Of The Hermeneutic-Ontological Shift And The Decolonial Shift, Celso Luiz Ludwig

Nevada Law Journal

The purpose of the reflections that follow is to highlight the meaning and importance of the hermeneutic shift produced by the work of Gadamer, to consider some of his themes and categories, and to extend the meaning of this hermeneutic rationality to the legal field in terms of a new conception of interpretation. A second objective is to catch sight of new theoretical perspectives, having as a starting point the unfolding of practical philosophy into hermeneutic philosophy carried out by Gadamer. This article aims at recuperating, among other things, the fundamental hermeneutic problem, so as to obtain a glimpse into ...


The Existential Subject Of Rights And Private Law: The Example Of The Indian Issue In Brazil, Jose Carlos Moreira da Silva Filho 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

The Existential Subject Of Rights And Private Law: The Example Of The Indian Issue In Brazil, Jose Carlos Moreira Da Silva Filho

Nevada Law Journal

The issue of the juridical subject has been a topic of discussion as part of the rethinking of the classical jurisprudential concepts in Brazil. In particular, some authors have written about the “repersonalization of private law.” This has opened a promising path of inquiry regarding the legal subject for at least four major reasons. First, continental private law is the classical field to discuss the subject of rights. Second, the focus of private law remains the concept of the person, opening an important space to recover the moral philosophy in law. Third, the repersonalization of private law demonstrates the necessity ...


Deconstructing The Models Of Judges: Legal Hermeneutics And Beyond The Subject-Object Paradigm, Lenio Luiz Streck 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Deconstructing The Models Of Judges: Legal Hermeneutics And Beyond The Subject-Object Paradigm, Lenio Luiz Streck

Nevada Law Journal

The linguistic-ontological turn has brought uncountable consequences to the interpretation of Law. However, dogmatic-legal knowledge remains hostage to a judicial protagonism, a philosophy of consciousness that, together with legal discretion, represent two sides of the same coin. The criticism of judicial discretion is a matter of democracy: decisions must be coherent, assuring the integrity of Law by reinforcing the normative power of the Constitution from which arises the need for correct answers in Law.


Legal Interpretation: The Window Of The Text As Transparent, Opaque, Or Translucent, George H. Taylor 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Legal Interpretation: The Window Of The Text As Transparent, Opaque, Or Translucent, George H. Taylor

Nevada Law Journal

It is a common metaphor that the text is a window onto the world that it depicts. I want to explore this metaphor and the insights it may offer us for better understanding legal interpretation. As in the opening epigraph from James Boyd White, I shall develop the metaphor of the text as window in three ways: the text may be transparent, opaque, or translucent. My goal will be to argue that the best way to understand legal interpretation is to conceive of the legal text as translucent, but along the way I will compare the merits also of considering ...


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