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Aspects Of Deconstruction: Refuting Indeterminacy With One Bold Thought, Anthony D'Amato 2010 Northwestern University School of Law

Aspects Of Deconstruction: Refuting Indeterminacy With One Bold Thought, Anthony D'Amato

Faculty Working Papers

Deconstruction has already happened on the Supreme Court. Not only can no member of the Court really believe that "the law" (self-invented by the very Court it is supposed to govern!) can constrain the result in any individual case, but its members have also convinced themselves that they have no time to be concerned with dispensing justice to the parties. The justificatory legal language used in judicial opinions is not what our law teachers told us it was. The justificatory legal language is not provided to explain—much less constrain—the result in the case. Rather, it is a mode ...


Aspects Of Deconstruction: Thought Control In Xanadu, Anthony D'Amato 2010 Northwestern University School of Law

Aspects Of Deconstruction: Thought Control In Xanadu, Anthony D'Amato

Faculty Working Papers

Nearly every case in nearly every legal system is a case where the factfinder—that is, the judge or jury—must decide what was going on in the minds of the litigants. For example, every criminal case turns on mens rea—a guess that the defendant harbored thoughts amounting to criminal intent. Tort cases involve the intention of the defendant, or at least his reckless indifference to risk. Estate cases require the probate court to assess the intent of the testator. Antitrust cases involve the question whether there was an intent to form a combination in restraint of trade. I ...


Is International Law Part Of Natural Law?, Anthony D'Amato 2010 Northwestern University School of Law

Is International Law Part Of Natural Law?, Anthony D'Amato

Faculty Working Papers

The affinity of international law to natural law goes back a long way to the classic writers of international law. "Natural law" is the method of dispute resolution based on a conscious attempt to perpetuate past similarities in dispute resolution. "International law" has a deep affinity to this natural law method, for it consists of those practices that have "worked" in inter-nation conflict resolution.


Can Any Legal Theory Constrain Any Judicial Decision?, Anthony D'Amato 2010 Northwestern University School of Law

Can Any Legal Theory Constrain Any Judicial Decision?, Anthony D'Amato

Faculty Working Papers

A growing number of legal scholars have recently revived the American legal realist thesis that legal theory does not dictate the result in any particular case because legal theory itself is indeterminate. A more radical group has added that theory can never constrain judicial practice. I will present a spectrum of types of legal theories to demonstrate that the position of the more radical group of writers is correct—that legal theory is inherently incapable of identifying which party should win any given case.


There Is No Norm Of Intervention Or Non-Intervention In International Law, Anthony D'Amato 2010 Northwestern University School of Law

There Is No Norm Of Intervention Or Non-Intervention In International Law, Anthony D'Amato

Faculty Working Papers

Comments on Prof. Jianming Shen's position that humanitarian intervention is unlawful under international law and that there is a principle of non-intervention in international law that is so powerful that it amounts to a jus cogens prohibition.


The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato 2010 Northwestern University School of Law

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.


Legal Realism Explains Nothing, Anthony D'Amato 2010 Northwestern University School of Law

Legal Realism Explains Nothing, Anthony D'Amato

Faculty Working Papers

I argue that American legal realism as derived from Oliver Wendell Holmes's prediction theory of law was misinterpreted, and that a deeper examination of law-as-prediction might help to reduce the pathology of judicial lawmaking that has been the unfortunate consequence of legal realism.


A Few Steps Toward An Explanatory Theory Of International Law, Anthony D'Amato 2010 Northwestern University School of Law

A Few Steps Toward An Explanatory Theory Of International Law, Anthony D'Amato

Faculty Working Papers

If any one sentence about international law has stood the test of time, it is Louis Henkin's: "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." If this is true, why is this true? What makes it true? How do nations invent rules that then turn around and bind them? Are international rules simply pragmatic and expedient? Or do they embody values such as the need for international cooperation? Is international law a mixed game of conflict and cooperation because of its rules, or do its rules ...


The Path Of International Law, Anthony D'Amato 2010 Northwestern University School of Law

The Path Of International Law, Anthony D'Amato

Faculty Working Papers

Is there a need for yet another student-edited international law journal? Practicing attorneys retrieve relevant articles when working on cases with international law issues, although they may be oblivious to the name of the journal or the prestige of the law school that supports it. For student editors, serving on a new international law journal is not just an intellectual experience; it is an empowering one. The more one looks into custom and treaty and the other sources of international law, the more one finds complexity and intellectual challenge.


The Speluncean Explorers--Further Proceedings, Anthony D'Amato 2010 Northwestern University School of Law

The Speluncean Explorers--Further Proceedings, Anthony D'Amato

Faculty Working Papers

Lon L. Fuller's The Case of the Speluncean Explorers is a classic in jurisprudence. The case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Fuller are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis".


The Limits Of Legal Realism, Anthony D'Amato 2010 Northwestern University School of Law

The Limits Of Legal Realism, Anthony D'Amato

Faculty Working Papers

This article will address some criticisms of legal realism, primarily those of H.L.A. Hart, that have been unanswered in the literature and have appeared to discredit the realist approach to law. The article will also articulate what I believe to be more difficult problems with legal realism.


Legal Uncertainty, Anthony D'Amato 2010 Northwestern University School of Law

Legal Uncertainty, Anthony D'Amato

Faculty Working Papers

Legal certainty decreases over time. Rules and principles of law become more and more uncertain in content and in application because legal systems are biased in favor of unravelling those rules and principles. In this article I attempt to show what these biases are, and why commentators who have argued that the law tends toward certainty are wrong, then describe various attempts which have been made at restoring certainty, and why these attempts have generally not worked. My conclusion is that these proposals are at best holding actions, and that the tendency toward increasing uncertainty in the law is inexorable.


China In Context: Energy, Water, And Climate Cooperation, Prof. Elizabeth Burleson 2010 SelectedWorks

China In Context: Energy, Water, And Climate Cooperation, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Climate resilient communities can be achieved with the support of global research, development, deployment, and diffusion of environmentally sound low GHG emission technologies and processes. Technology cooperation should lower emissions remaining mindful of biodiversity, ecosystem services and livelihoods. China and the United States need to respond effectively to both economic and climate crises and can do so in part by cooperating on environmentally sound technology that transforms the global use of energy.


Collaborative Community-Based Natural Resource Management, Prof. Elizabeth Burleson 2010 SelectedWorks

Collaborative Community-Based Natural Resource Management, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

This article analyzes the importance of increasing civil society actor access to and influence in international legal and policy negotiations, drawing from academic scholarship on governance, conservation and environmental sustainability, natural resource management, observations of civil society actors, and the authors’ experiences as participants in international environmental negotiations.


The Need For Prosecutorial Discretion, Stephanos Bibas 2010 University of Pennsylvania Law School

The Need For Prosecutorial Discretion, Stephanos Bibas

Faculty Scholarship

No abstract provided.


Contingent Valuation Studies And Health Policy, Matthew D. Adler 2010 University of Pennsylvania Law School

Contingent Valuation Studies And Health Policy, Matthew D. Adler

Faculty Scholarship

This short comment argues that both cost-benefit analysis (CBA) and cost-effectiveness analysis (CEA) should be seen as imperfect tools for evaluating health policy. This is true, not only for extra-welfarists, but even for welfarists, since both CBA and CEA can deviate from the use of social welfare functions (SWF). A simple model is provided to illustrate the divergence between CBA, CEA, and the SWF approach. With this insight in mind, the comment considers the appropriate role of contingent-valuation studies. For full text, please see: http://www.law.upenn.edu/cf/faculty/madler/workingpapers/578A59B6d01.pdf.


Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin 2010 University of Pennsylvania

Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin

Faculty Scholarship

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding ...


Will The Real Elena Kagan Please Stand Up? Conflicting Public Images In The Supreme Court Confirmation Process, Keith J. Bybee 2010 Syracuse University

Will The Real Elena Kagan Please Stand Up? Conflicting Public Images In The Supreme Court Confirmation Process, Keith J. Bybee

Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University

What images of judging did the Kagan confirmation process project?

My response to this question begins with a brief overview of existing public perceptions of the Supreme Court. I argue that a large portion of the public sees the justices as impartial arbiters who can be trusted to rule fairly. At the same time, a large portion of the public also sees the justices as political actors who are wrapped up in partisan disputes. Given these prevailing public views, we should expect the Kagan confirmation process to transmit contradictory images of judicial decisionmaking, with a portrait of judging as a ...


Contemporary Immigration Detention Practices In The United States: A Study In Sociology And Human Rights, Robert D. Goodis 2010 Bard College

Contemporary Immigration Detention Practices In The United States: A Study In Sociology And Human Rights, Robert D. Goodis

Selected Senior Projects Fall 2010

“Contemporary Immigration Detention Practices in the United States: A Study in Sociology and Human Rights” is a study on the detention and incarceration of immigrants, with particular focus on the effects and implications of detaining refugees and asylum-seekers, in the United States. The study reports on two specific detention facilities—the Northwest Detention Center in Tacoma, Washington, and the T. Don Hutto Family Residential Facility (a.k.a. T. Don Hutto Residential Center) in Taylor, Texas—as sociological case-studies, primarily presented as legal briefs, to explore how contemporary detention practices relate to the legal structure and ideals established by domestic ...


Some Lessons Learned From The Aids Pandemic, 19 Annals Health L. 63 (2010), Mark E. Wojcik 2010 John Marshall Law School

Some Lessons Learned From The Aids Pandemic, 19 Annals Health L. 63 (2010), Mark E. Wojcik

Faculty Scholarship

No abstract provided.


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