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Finding Law, Stephen E. Sachs 2019 Duke Law School

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


Islamic Terrorism In The United States – The Association Of Religious Fundamentalism With Social Isolation & Paths Leading To Extreme Violence Through Processes Of Radicalization., Shay Shiran 2018 Shay Shiran

Islamic Terrorism In The United States – The Association Of Religious Fundamentalism With Social Isolation & Paths Leading To Extreme Violence Through Processes Of Radicalization., Shay Shiran

Student Theses

This exploratory study focuses on identifying motivations for religious terrorism and Islamic terrorism in the United States in particular. Terrorism is a crime of extreme violence with the end purpose of political influence. This crime is challenging to encounter for its multi-faced characteristics, the unusual motivations of its actors, and their semi-militant conduct. The hypothesis of this study asserts that religious terrorists are radicalized by passing from fundamental to extreme devout agendas, caused by isolation from the dominant society, and resulted in high potential to impose those agendas by extreme violence. Under the theoretical framework of subculture in criminology, this ...


A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson 2018 University of Pennsylvania Law School

A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson

Faculty Scholarship

This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required offense culpable state of mind that he may not actually have had at the time of the offense; the effect of involuntary intoxication in providing a defense by negating a required offense culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible ...


Polarization And The Supreme Court, Kyla Duffy 2018 University of Rhode Island

Polarization And The Supreme Court, Kyla Duffy

Senior Honors Projects

Political polarization has been commonly observed in American politics and has drawn scholarly interest. In recent years, trends of polarization have appeared to increase in Congress, with Democrats and Republicans drifting further and further apart. Americans appear to be deeply split on many social issues which have resulted in culture wars in American politics. According to the legal model of judicial decision making, decisions handed down by the Supreme Court should be unaffected by these trends of polarization. However, recent scholarship, most notably the attitudinal model of judicial decision making, calls into question the legal model of decision making. It ...


Gatekeeping Decriminalization Of Prostitution: The Ubiquitous Influence Of The New Zealand Prostitutes' Collective, Janice G. Raymond 2018 University of Massachusetts, Amherst

Gatekeeping Decriminalization Of Prostitution: The Ubiquitous Influence Of The New Zealand Prostitutes' Collective, Janice G. Raymond

Dignity: A Journal on Sexual Exploitation and Violence

This article explores the activities of The New Zealand Prostitutes' Collective (NZPC) in promoting decriminalization of prostitution and its role in gatekeeping this legislation. The NZPC has loomed large in the government’s evaluations of the decriminalization legislation known as the Prostitution Reform Act (PRA). It has collected information, partnered on the research team appointed by the Ministry of Justice to conduct the research, and ultimately secured seats as evaluators on the Prostitution Law Review Committee (PLRC) charged with assessing the research and making recommendations. Much of its outsized influence on the research and conclusions of this report is demonstrated ...


Panel Discussion: Author Meets Critic, 2018 Northwestern Pritzker School of Law

Panel Discussion: Author Meets Critic

Northwestern Journal of Law & Social Policy

No abstract provided.


A Critical Analysis Of Humanitarian Intervention As A Source Of Reputational Credibility, Margaux Arntson 2018 Claremont Colleges

A Critical Analysis Of Humanitarian Intervention As A Source Of Reputational Credibility, Margaux Arntson

CMC Senior Theses

Since his election into office, a cloud of uncertainty has surrounded President Trump’s foreign policy ambitions. Much of today’s scholarship concerns its unpredictable nature and scope. President Trump, like previous presidents who have come before him, entered office with very little foreign policy experience. A key feature of his non-principled, fast-alternating foreign policy is that few people know exactly what he is going to propose next in terms of his international strategy. Coupled with this strategy is Trump’s desire for international credibility and a strong reputation. This desire seems fundamentally at odds with his foreign policy strategy ...


Petitioning And The Making Of The Administrative State, Maggie McKinley 2018 University of Pennsylvania Law School

Petitioning And The Making Of The Administrative State, Maggie Mckinley

Faculty Scholarship

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state ...


Postmodern Social Control: Dividuals And Surveillance, Ernest M. Oleksy 2017 Cleveland State University

Postmodern Social Control: Dividuals And Surveillance, Ernest M. Oleksy

The Downtown Review

As a society's foundational philosophy changes, so, too, will its forms of social control. By using the works of thinkers like Deleuze and Foucault as pivot points, the dynamic nature of social interactions and the agents to mediate those actions shall be investigated. This article includes findings from archival analysis written in a journalistic prose for simplicity of consumption.


Joyful Human Rights Activism, William Simmons 2017 University of Arizona

Joyful Human Rights Activism, William Simmons

The Social Practice of Human Rights: Charting the Frontiers of Research and Advocacy

In popular, legal, and academic discourse, a subtle but significant shift has occurred: The term “human rights” is now almost always discussed in relation to its opposite, “human rights abuses.” Syllabi, textbooks, and academic articles focus largely on abuses, victimization, and trauma with nary a mention of joy or other positive emotions.

This will be obvious to most human rights scholars and practitioners once it is pointed out, but the depth of the elision is staggering. Human rights could also be discussed in the context of the most joyful of human experiences and even those victimized almost always experience ...


“First, Do No Harm”: Old And New Paradigms In Prehospital Resuscitation In The Aquatic Domain, John H. Pearn, Richard Charles Franklin 2017 Lady Cilento Children's Hospital, Brisbane, Queensland, Australia

“First, Do No Harm”: Old And New Paradigms In Prehospital Resuscitation In The Aquatic Domain, John H. Pearn, Richard Charles Franklin

International Journal of Aquatic Research and Education

The balance between benefit and risk is central to the work of all those involved in aquatic services. The Hippocratic exhortation of Primum non nocere, “First, do no harm,” has a history of over 2000 years. Superficially, all would support this dictum, but harm can result from inaction. The balance between no or little intervention on the one hand and proactive intervention with iatrogenic risk on the other is complex and enduring. Risk implies that one does not have all the information available to know the exact likelihood of an outcome, a common situation involving rescue, first aid, and resuscitation ...


Hermeneutic Philosophies Of Social Science: Introduction, Babette Babich 2017 Fordham University

Hermeneutic Philosophies Of Social Science: Introduction, Babette Babich

Articles and Chapters in Academic Book Collections

No abstract provided.


The Racialization And Exploitation Of Foreign Workers By The Law, Seiko Ishikawa 2017 The Graduate Center, City University of New York

The Racialization And Exploitation Of Foreign Workers By The Law, Seiko Ishikawa

All Dissertations, Theses, and Capstone Projects

Intense demand for cheap labor in the United States has resulted in a widespread effect of employing high skilled immigrants in STEM fields. Examining how companies use high-skilled visa categories to create a flexible cheaper immigrant workforce, this paper demonstrates that skilled immigrants from Asia are being exploited through neutral skills-based criteria that are de facto racially biased. The purpose of this paper is to raise awareness of how, from the perspective of law and society, skills-based immigration works primarily to benefit the technological industry rather than skilled immigrants.


The New American Slavery: Capitalism And The Ghettoization Of American Prisons As A Profitable Corporate Business, David A. Liburd 2017 The Graduate Center, City University of New York

The New American Slavery: Capitalism And The Ghettoization Of American Prisons As A Profitable Corporate Business, David A. Liburd

All Dissertations, Theses, and Capstone Projects

The labor of enslaved Africans and Black Americans played a large part in the history of colonial America, with the American plantation being the epicenter for all that was to be produced. While the two have never been completely tied together, capitalism and modern day slavery have been linked with one another. Some analysis sees slavery as a remote form of capitalism, a substitute, to an antiquated form of labor in the modern world.

Slave plantations adopted a new concentration in size and management, referred to by W.E. DuBois as a change "from a family institution to an industrial ...


Utilizing Title Vi As A Means To Eradicate Health Discrimination, Adrian D. Samuels, Mariah L. Cole 2017 Meharry Medical College

Utilizing Title Vi As A Means To Eradicate Health Discrimination, Adrian D. Samuels, Mariah L. Cole

Journal of Health Disparities Research and Practice

Health disparities among people of color are persistent and detrimental to the overall wellness of these groups. Discrimination in the provision of health care services is one of the primary causes of health disparities. Title VI of the Civil Rights Act of 1964’s availability as a tool to prevent discrimination and, in turn, disparities among these groups is underdocumented. The legislative intent of Title VI and the historical context of the law have been helpful in its use outside of the health care arena to prevent discrimination. This sheds light on the ways that the law can influence the ...


Arguing With Friends, William Baude, Ryan D. Doerfler 2017 University of Chicago

Arguing With Friends, William Baude, Ryan D. Doerfler

Faculty Scholarship

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or ...


Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman 2017 National Center on Sexual Exploitation

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal on Sexual Exploitation and Violence

No abstract provided.


Liberty, Robert C. Brown 2017 Indiana University School of Law

Liberty, Robert C. Brown

Robert C. Brown

No abstract provided.


Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith 2017 University of Pennsylvania Law School

Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith

Faculty Scholarship

This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how ...


Moral Time And Homicide Investigations., David Stuart Lapsey Jr. 2017 University of Louisville

Moral Time And Homicide Investigations., David Stuart Lapsey Jr.

Electronic Theses and Dissertations

Previous literature explores the many dimensions of homicide investigations, including case and individual characteristics, evidence and investigative activities. However, little research delves into situational characteristics and their relationship to specific homicides, charge severity sought by prosecutors and sentence length given to homicide offenders. The current study sampled homicide cases (N=68) to gather baseline information and data regarding judicial outcomes. Donald Black’s Theory of Moral Time (2011) is tested and utilized as the study’s conceptual framework for the study’s hypotheses.


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