Digital Commons Network^™

Legal Decisionmaking As A Responsible Intellectual Activity: A Continental Point Of View, Marijan Pavčnik

Washington Law Review

The legal decision in a concrete case is never completely given in advance in the statute. A theory of legal decisionmaking that sees the decider as someone who merely "applies the law" is inadequate to explain what goes on in the process of legal decisionmaking. The legal decision is a value synthesis assessing the normative starting point with regard to the factual starting point, and vice versa. This means that a legal decision can only be made when the normative state of constituent facts of the case has been formed on the basis of the statute, when from the life …

The Draw And Drawbacks Of Religious Enclaves In A Constitutional Democracy: Hasidic Public Schools In Kiryas Joel, Judith Lynn Failer

Indiana Law Journal

Symposium: Law and Civil Society

A Noble Sacrifice? Jus Ad Bellum And The International Community's Gamble In Chechnya, Peter Daniel Dipaola

Indiana Journal of Global Legal Studies

No abstract provided.

The United Nations Convention Of The Rights Of The Child: A Feminist Landmark, Cynthia Price Cohen

William & Mary Journal of Race, Gender, and Social Justice

The United Nations Convention on the Rights of the Child,1 adopted by the General Assembly on November 20, 1989, is a ground-breaking human rights treaty for many reasons. It had the largest number of signatories on the day that it was opened for signature.2 It went into force more quickly than any other human rights treaty;3 it reached near-universal ratification by mid-1996;4 and it protects the entire range of human rights: civilpolitical, economic-social-cultural, and humanitarian.5 In addition, the Convention's monitoring mechanism gives unique powers to its monitoring body, the Committee on the Rights of the Child.6 Unfortunately, these achievements have …

Plain Meaning, The Tax Code, And Doctrinal Incoherence, Mary L. Heen

Law Faculty Publications

This Article examines the Supreme Court's interpretive approach in recent tax cases. Part I of the Article sets the stage by describing the Court's interpretive approach, its focus on the relative determinacy of statutory language, and the backdrop of Chevron. Part II examines the effect of these issues on tax law, focusing on three cases that construe the same Code provision, section 104(a)(2), but apply quite different interpretive approaches. In United States v. Burke, the Court appeared to find the provision ambiguous and relied in part upon an interpretation of the statute contained in a Treasury regulation. Subsequently, in Commissioner …

Consonance Or Rivalry? Calibrating The Efforts To Prosecute War Crimes In National And International Tribunals, Frederik Harhoff

Duke Journal of Comparative & International Law

No abstract provided.

The Language Question In A Rainbow Nation: The South African Experience, Albie L. Sachs

Dalhousie Law Journal

In this, the twenty-second annual Horace E. Read Memorial Lecture, Mr. Justice Albie Sachs reviews the efforts to resolve problems of multilingualism in the new Constitution of South Africa. Writing from experience in the constitution-making process, he reflects on the reality of eleven different languages in South Africa. He discusses the consequent problems of legislative strategy and linguistic rights and the appropriate balance amongst language rights, policy and practice.

Que, Ya No Hablan Ingles En Este Pais?: A Look At The Constitutionality Of English Only Provisions Under The Free Speech Clause Of The First Amendment, John J. Louizos

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Repose Or Not? Informal Objections To Claims Of Exemptions After Taylor V. Freeland, Kenneth D. Ferguson

Faculty Works

In Taylor v. Freeland & Kronz, over the trustee's untimely objection, the Supreme Court permitted the bankruptcy debtor to exempt $110,000 that was ineligible under substantive exemption law. The Court rejected the view that unless the debtor had a good faith claim to the exemption or a statutory basis for the exemption, even an untimely objection to the debtor's claim of exemption could terminate the debtor's right to the exemption. Disturbed by the prospects of debtors receiving unjustified windfalls, several courts have developed "informal objection" doctrines to circumvent the "strict constructionist" doctrine of Taylor. However, Taylor's potential for encouraging debtors …

Protecting The Least Respected: The Girl Child And The Gender Bias Of The Vienna Convention's Adoption And Reservation Regime, Linda A. Malone

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

The Susceptibility Of Formal Models Of Evidentiary Inference To Cultural Sensitivity, Ron A. Shapira

Cardozo Journal of International and Comparative Law

The article examines whether formal models of evidentiary inference, specifically probabilistic (Pascalian) and inductive (Baconian) models, can accommodate cultural sensitivity. It argues that both models fail to adequately address cultural factors, which significantly influence evidentiary judgments. The probabilistic model overlooks the cultural context in sample space selection, while the inductive model, though rooted in a socially sensitive philosophy of science, does not explicitly incorporate cultural influences. This omission leads to potential biases and inaccuracies in legal proceedings.

Non-Governmental Organizations And Global Activism: Legal And Informal Approaches, Wendy Schoener

Indiana Journal of Global Legal Studies

No abstract provided.

Plain English Or Plain Confusing, Dylan Lager Murray

Missouri Law Review

A "presumption of perfection" attaches to the pattern instructions that Missouri judges read to jurors in every civil case.' Missouri law presumes that these instructions, as set forth in Missouri Approved Jury Instructions("MAI") Fifth Edition, are not only infallible statements of the law, but also perfectly comprehensible to the average juror. Even if jurors in a given case complain that they do not understand a particular pattern instruction, the trial judge is without recourse, required to leave these instructions undisturbed even if a more understandable improvement might result. In contrast to the emphasis in many states upon legal accuracy,' as …

Law And Iconomics, Jeanne L. Schroeder, David G. Carlson

Articles

Peter Goodrich's Oedipus Lex critically examines the English common law tradition through a psychoanalytic lens, revealing a 'legal unconscious' that underscores deep-seated repressions and contradictions. He argues that common law has historically attempted to exclude imagery and the feminine, yet these elements persist, leading to internal conflicts. By analyzing historical legal texts from the Elizabethan and Jacobean periods, Goodrich exposes violent rhetoric against enemies of the common law, such as Catholics and women, highlighting the law's struggle with its own unconscious structures.

Human Rights In The Federation Of Bosnia-Herzegovenia, Bola Ajibola

Connecticut Journal of International Law

In a way, the Yugoslavian crisis started as far back as 1980, with the end of Tito's iron reign in the Socialist Federal Republic of Yugoslavia. The animosities and mistrust between the theoretically equal republics of the federation, which had been suppressed and submerged during the strict one-party leadership of Tito, found very fertile soil in the severe economic problems: hyper-inflation, unemployment, and high debt profile. These problems rocked Yugoslavia in the second half of that decade. Another factor of the Yugoslavian crisis was the wave of political reformations and revolutions that consumed Eastern Europe. On June 25, 1991 Slovenia …

Roma And Forced Migration: An Annotated Bibliography, Dana Neacsu

Books

As of 1997 there were between seven and eight and a half million Roma living in Europe. While there was ample literature on the Roma, in those pre-Internet times, there was no annotated bibliography of relevant works. This selected annotated bibliography assembled texts directly concerned with the forced migration of Roma, as well as other books, articles, periodicals, and various collections which provide background information on the Roma and their socio-economic, political and legal history. All the texts came from the NY Public Library collection. The compilation and the annotations were written by Dana Neacsu, at that time, a Consultant …

Systems Approach To Law , Lynn M. Lopucki

Cornell Law Review

No abstract provided.

United States Follows Canadian Lead And Takes An Unequivocal Position Against Female Genital Mutilation: In Re Fauziya Kasinga, Tiajuana Jones-Bibbs

Tulsa Journal of Comparative and International Law

No abstract provided.

Sign Language: Colonialism And The Battle Over Text, Grace A. Pasigan

Loyola of Los Angeles Entertainment Law Review

No abstract provided.

How The World Dreams Itself To Be American: Reflections On The Relationship Between The Expanding Scope Of Trademark Protection And Free Speech Norms, Keith Aoki

Loyola of Los Angeles Entertainment Law Review

No abstract provided.

The Anatomy Of The Internet Meets The Body Of The Law, Andy Johnson-Laird

University of Dayton Law Review

Symposium: Copyright Owners' Rights and Users' Privileges on the Internet

The Naked Emperor: A Corporate Lawyer Looks At Rupa's Fiduciary Provisions, Lawrence E. Mitchell

Washington and Lee Law Review

No abstract provided.

The Armstrong Principle, The Narratives Of Takings, And Compensation Statutes, William Michael Treanor

William & Mary Law Review

No abstract provided.

Judge Friendly And The Law Of Securities Regulation: The Creation Of A Judicial Reputation, Margaret V. Sachs

Scholarly Works

Few judges are more revered than the late Henry J. Friendly, a member of the United States Court of Appeals for the Second Circuit from 1959 to 1986. Leading jurists and scholars have described him as "one of our wisest judges," "a legend in his own time," "the most remarkable legal mind of his generation," "the pre-eminent appellate judge of his era," and "the most distinguished judge in this country during his years on the bench."

Are great judicial reputations-like great literary and scientific reputations- also shaped by contingencies? Or does the legal profession for some reason stand apart? This …

A Farewell To Principles, Gary S. Lawson

Faculty Scholarship

Larry Alexander and Ken Kress have written one of the most interesting and engaging articles on jurisprudence in recent times- That is not surprising, as they are two of the most consistently interesting and engaging figures on the contemporary legal scene. Their case against the use of Dworkinian legal principles in adjudication is simply devastating. In particular, their argument that Dworkinian legal principles must be identical to correct moral principles in all future cases-their so-called "Argument from Fit" 2 -seems to me unanswerable.

Lynching Ethics: Toward A Theory Of Racialized Defenses, Anthony V. Alfieri

Michigan Law Review

So much depends upon a rope in Mobile, Alabama. To hang Michael Donald, Henry Hays and James "Tiger" Knowles tied up "a piece of nylon rope about twenty feet long, yellow nylon." They borrowed the rope from Frank Cox, Hays's brother-in-law. Cox "went out in the back" of his mother's "boatshed, or something like that, maybe it was in the lodge." He "got a rope," climbed into the front seat of Hays's Buick Wildcat, and handed it to Knowles sitting in the back seat. So much depends upon a noose. Knowles "made a hangman's noose out of the rope," thirteen …

Is This Appropriate?, Thomas L. Shaffer, Julia B. Meister

Duke Law Journal

No abstract provided.

Reconcilable Differences--The Interpretation Of Multilingual Treaties, Dinah Shelton

UC Law SF International Law Review

The practice of authenticating treaties in several languages has grown in recent decades as multilateral agreements are concluded in the six official languages of the United Nations or the corresponding number of official languages of other sponsoring organizations. Problems of translation errors, ambiguities, and deliberate differences lead to conflicts over the content of obligations and rights contained in the treaties. The Vienna Convention on the Law of Treaties provides some guidance to interpreting texts authenticated in several languages, but more effort is needed during negotiations to avoid discordant texts. In addition, the author proposes that greater recourse be had to …

Reconceptualizing The Inherent Distinctiveness Of Product Design Trade Dress, Graeme Dinwoodie

All Faculty Scholarship

No abstract provided.

Challenges Facing Inter-Governmental Political Negotiations Which Are Common To International Business Negotiators: An Analysis Of Shared Concerns, Yassin El-Ayouty

ILSA Journal of International & Comparative Law

Two PROVERBS AND INTRODUCTION

The thesis of this article is that the commonality of challenges facing both inter-governmental negotiators and international business negotiators is more predominant than the differences in these two situations.