Nonmoral Theoretical Disagreement In Law, 2016 Weitz & Luxenberg, P.C.
Nonmoral Theoretical Disagreement In Law, 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 ...
Preliminary Warnings On 'Constitutional' Idolatry, 2016 Academia Sinica
Preliminary Warnings On 'Constitutional' Idolatry, Brian Christopher Jones
Brian Christopher Jones
Although contemporary societies covet the notion of a written constitution, the UK still stands as one of the few jurisdictions not in possession such a single document. Yet recently there has been renewed discussion regarding whether the UK should draft its own constitution (or at least entrench some form of constitutional law). A recent House of Commons committee report thoroughly analysed this prospect, and many scholars and practitioners consider such a result inevitable. This piece argues that such a document should not be drafted, but if it is, it should surely not be called a "Constitution".
Difficulties arise because over ...
Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, 2016 SelectedWorks
Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit
The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of ...
From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, 2016 SelectedWorks
From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit
In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known ...
Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), 2016 University of Oklahoma College of Law
Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson
Stephen E Henderson
When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those records not only store our past, but thanks to data mining and big data, in many circumstances they are eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully ...
Magna Carta Then And Now: A Symbol Of Freedom And Equal Rights For All, 2015 Singapore Management University
Magna Carta Then And Now: A Symbol Of Freedom And Equal Rights For All, Eugene K B Tan, Jack Tsen-Ta Lee
Jack Tsen-Ta LEE
Magna Carta became applicable to Singapore in 1826 when a court system administering English law was established in the Straits Settlements. This remained the case through Singapore’s evolution from Crown colony to independent republic. The Great Charter only ceased to apply in 1993, when Parliament enacted the Application of English Law Act to clarify which colonial laws were still part of Singapore law. Nonetheless, Magna Carta’s legacy in Singapore continues in a number of ways. Principles such as due process of law and the supremacy of law are cornerstones of the rule of law, vital to the success ...
Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith
There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking ...
Mental Health & The Law, 2015 National University
Mental Health & The Law, D'Andre Devon Lampkin
D'Andre Devon Lampkin
The purpose of this research project is the introduce readers to the experiences of peace officers assigned to field teams that investigate incidents involving mental illness and the lessons learned throughout the evaluation process. This paper also endeavors to expose readers to how law enforcement agencies across the United States are addressing mental illness and improving response to incidents involving subjects with mental illnesses. Also included are highlights focused on training and the collaborations taking place between mental health professionals and law enforcement agencies wanting to combine judicial supervision with community based mental health treatment.
Rights Without Remedies, 2015 Indiana Tech Law School
Rights Without Remedies, Adam Lamparello
The Court should modify the standing doctrine in some contexts for the same reason that, in Shelby County, it invalidated two provisions of the Voting Rights Act: the legislature cannot and will not fix the problem. No legal doctrine should be applied without examining whether elected representatives are capable of remedying specific harms and accounting for the relative unfairness in democratic governance. When the traditional standing requirements are rigidly applied without considering these factors, the Court undermines the separation of powers and prevents sound judicial decision-making. In essence, rigid application of the standing doctrine sends a message to litigants that ...
The New Affirmative Action After Fisher V. University Of Texas: Defining Educational Diversity Through The Sixth Amendment's Cross-Section Requirement, Adam Lamparello, Cynthia Swann
Skin color and diversity are not synonymous, and race provides no basis upon which to stereotype individuals or groups, regardless of whether the reasons are malevolent or benign.
Affirmative action policies in higher education should focus on the things that individuals have overcome, not the traits that individuals—and groups—cannot change. Currently, the opposite is true, as such policies typically equate racial diversity with educational diversity, thereby precluding consideration of factors such as family and personal background, life experience, and the overcoming of adversity that would result in true educational diversity. This is not to say that race is ...
Marriage (In)Equality And The Historical Legacies Of Feminism, 2015 University of Pennsylvania Law School
Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri
In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so ...
Democratic Policing, 2015 NYU School of Law
Democratic Policing, Barry Friedman, Maria Ponomarenko
New York University Public Law and Legal Theory Working Papers
Of all the agencies of executive government, those that police—that employ force and engage in surveillance—are the most threatening to the liberties of the American people. Yet, they are the least regulated. Two core requisites of American constitutionalism are democratic accountability and adherence to the rule of law. Democratic accountability ensures that policy choices are vetted in the public arena and have popular support; the rule of law requires that those choices be constitutional as well. Legislative enactments governing policing are few and far between. Although police departments have internal rules, these rules are rarely made public or ...
Democracy And Torture, 2015 SelectedWorks
Democracy And Torture, Patrick A. Maurer
Patrick A Maurer
September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.
General Rules For Contract Deviation For Sale Ownership, 2015 Lslamic Azad University of Tehran
General Rules For Contract Deviation For Sale Ownership, Mohamad Ali Ali Yousefkhani Mr
Mohamad Ali Ali Yousefkhani
Sale submission to vendor and price payment by buyer generally shows just the explicit and implied will of both parties and their loyalty to their own legal commitments. For that reason, chronological ownership comes to be true in private contacts, in which vendor holding the completely discretionary by sending the object of sale by post, third party or his legal representative, provides buyer with complete discretionary for the object. For this reason, contract holds the ownership face when sale really submitted to the buyer and vender pays the price completely. When the whole object contract matters, vendor has the ...
Building Legal Order In Ancient Athens, 2015 Independent
Building Legal Order In Ancient Athens, Federica Carugati, Gillian K. Hadfield, Barry R. Weingast
University of Southern California Legal Studies Working Paper Series
How do democratic societies establish and maintain order in ways that are conducive to growth? Contemporary scholarship associates order, democracy, and growth with centralized rule of law institutions. In this article, we test the robustness of modern assumptions by turning to the case of ancient Athens. Democratic Athens was remarkably stable and prosperous, but the ancient city-state never developed extensively centralized rule of law institutions. Drawing on the “what-is-law” account of legal order elaborated by Hadfield and Weingast (2012),we show that Athens’ legal order relied on institutions that achieved common knowledge and incentive compatibility for enforcers in a largely ...
Medicine As A Public Calling, 2015 University of Michigan Law School
Medicine As A Public Calling, Nicholas Bagley
Michigan Law Review
The debate over how to tame private medical spending tends to pit advocates of government-provided insurance—a single-payer scheme—against those who would prefer to harness market forces to hold down costs. When it is mentioned at all, the possibility of regulating the medical industry as a public utility is brusquely dismissed as anathema to the American regulatory tradition. This dismissiveness, however, rests on a failure to appreciate just how deeply the public utility model shaped health law in the twentieth century— and how it continues to shape health law today. Closer economic regulation of the medical industry may or ...
Disparaging The Supreme Court: Is Scotus In Serious Trouble?, 2015 Liverpool Hope University
Disparaging The Supreme Court: Is Scotus In Serious Trouble?, Brian Christopher Jones
Brian Christopher Jones
The piece argues that the Court is now subject to the widest and most sophisticated disparagement it has ever experienced, and that the tumultuous terms over the past two years have especially shown its vulnerability. Journalists and the general public are now thinking and speaking about the institution in a much different light than previously, and a deeper conversation about the proper role of the Court, especially in regard to constitutional review, has only just begun. Also, the piece argues that the justices’ disparagement of each other has contributed to this wider criticism, and that the recent health care and ...
Immigration: A Lockean Approach, 2015 NYU School of Law
Immigration: A Lockean Approach, Jeremy Waldron
New York University Public Law and Legal Theory Working Papers
If states have a right to exclude outsiders from their territory, does this right derive from rights that individuals or informally organized communities might have had in a state of nature? May individuals or informally organized communities use force to drive outsiders away from their vicinity, even when the outsiders are not posing a threat to them, physically, or to their property? This paper defends the usefulness of asking such Lockean questions, because negative answers to them will shrink the space available for real-world defenses of immigration restrictions. It examines possible cultural and economic arguments for the putative right of ...
Drawing (Gad)Flies: Thoughts On The Uses (Or Uselessness) Of Legal Scholarship, 2015 University of Michigan Law School
Drawing (Gad)Flies: Thoughts On The Uses (Or Uselessness) Of Legal Scholarship, Sherman J. Clark
University of Michigan Journal of Law Reform Caveat
In this essay, I argue that law schools should continue to encourage and support wide-ranging legal scholarship, even if much of it does not seem to be of immediate use to the legal profession. I do not emphasize the relatively obvious point that scholarship is a process through which we study the law so that we can ultimately make useful contributions. Here, rather, I make two more-subtle points. First, legal academics ought to question the priorities of the legal profession, rather than merely take those priorities as given. We ought to serve as Socratic gadflies—challenging rather than merely mirroring ...
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, 2015 University of Michigan - Dearborn
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Nehal A. Patel
Over thirty years have passed since the Bhopal chemical disaster began, and in that time scholars of corporate social responsibility (CSR) have discussed and debated several frameworks for improving corporate response to social and environmental problems. However, CSR discourse rarely delves into the fundamental architecture of legal thought that often buttresses corporate dominance in the global economy. Moreover, CSR discourse does little to challenge the ontological and epistemological assumptions that form the foundation for modern economics and the role of corporations in the world.
I explore methods of transforming CSR by employing the thought of Mohandas Gandhi. I pay ...